Divorce, pre-nups and sharia

Another clash of rights case: this time cobbled together from various press reports – which is why it is much more comment than fact. I hope to produce a more considered version if and when a transcript of the judgment becomes available.

In AlSaffar v AlSaffar [2012] EWCA Civ (25 July 2012: as yet unreported) the couple married in accordance with Islamic law as well as under civil law. Under a prenuptial agreement Mrs Al-Saffar gave up her rights to a share of the marital home in return for her husband paying her a sum of money on marriage. However, when they divorced she applied for maintenance and HHJ Alan Jones ordered Dr Al-Saffar to pay his former wife £60,000 in personal maintenance for her contribution to the marriage.

When Dr Al-Saffar did not pay the full amount, claiming that Mrs Al-Saffar no longer needed his financial support as a result of an inheritance from her father, she obtained an order from District Judge Booth in February 2012 directing her former husband to pay her arrears of more than £40,000 in a lump sum and to resume monthly payments.

In July the Court of Appeal rejected Dr Al-Saffar’s challenge to that order. The Telegraph reported Ward LJ as declaring that a belief that maintenance payments to spouses were “illegitimate or illegal according to Islamic culture” was no defence to orders made by English divorce courts.

Comment: In a subsequent statement on its website, the Association of Muslim Lawyers supported the Court of Appeal’s decision and expressed the view that, while a judge might properly take into account a divorcing couple’s prenuptial agreement and their particular religious or cultural views, the principles of English law should always prevail. The Association also pointed out that maintenance payments to a former spouse were not, in fact, illegitimate or illegal according to the principles of sharia. The statement quoted Ajmal Azam, a family law specialist from Hardwicke chambers and a member of the Association’s Executive Committee, as rejecting the suggestion that family law in England and Wales was biased against Muslims.

“It is no more ‘biased’ against Muslims than it is any other group (although Fathers for Justice may not agree). A Muslim couple, if they both so consent, are perfectly entitled to enter into a settlement based on Islamic principles, just as any couple are able to settle their divorce based on whatever principles they willingly agree should be applicable, be that with the assistance of a beth din, a temple, a sharia council or a Jedi Knight”.

Mr Azam further pointed out that Mrs Al-Saffar had simply exercised her prerogative not to go down the sharia route.

Predictably, the case has evoked various anti-sharia reactions: some fairly measured, others quite intemperate. The Mail Online, for example, used the story as an opportunity to publish a ludicrously-brief summary of the Archbishop of Canterbury’s thoughtful and exceedingly complex lecture at the Royal Courts of Justice in February 2008, Civil and Religious Law in England: a religious perspective, in which he speculated about the degree to which religious legal systems might need to be accommodated in an increasingly multi-faith society. As Archbishop Rowan pointed out, “we have to think a little harder about the role and rule of law in a plural society of overlapping identities” – but some of the reactions to AlSaffar on the Web would suggest that we haven’t even started on that process yet.

PS: Since, presumably, Archbishop Rowan’s 2008 lecture will disappear from the C of E website when he leaves Canterbury, I suggest that if you don’t already have it in machine-readable form and you want a copy you should download it sooner rather than later.

3 thoughts on “Divorce, pre-nups and sharia

  1. Pingback: Family Law Specialist Barry Schneider Esq San Francisco CA

  2. Pingback: Respect for religion: the judge’s dilemma | Law & Religion UK

  3. Pingback: Sharia and the English legal system: the Government’s view | Law & Religion UK

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