The Home Office has today published the report of the independent review chaired by Professor Mona Siddiqui into the application by sharia councils in England and Wales of sharia law. In brief, the report makes three recommendations: for legislative change, for awareness campaigns and for regulation.
1. Legislative change
The report proposes amendments to the Marriage Act 1949 and the Matrimonial Causes Act 1973 to ensure that civil marriages are conducted before or at the same time as Islamic marriage ceremonies, bringing Islamic marriage into line with Christian and Jewish marriage in the eyes of the law. The offences section of the Marriage Act 1949 would be amended to provide that the celebrant of any marriage, including Islamic marriages, would face penalties should he or she fail to ensure that the marriage was also civilly registered. It would become a legal requirement for Muslim couples to register their marriage under the civil law before or at the same time as their Islamic ceremony.
It also proposes minor amendments to legislation on divorce through changes to the Matrimonial Causes Act 1973. Section 10A would be amended to ensure equality between all religions. The review recommends a short insertion into the section to bring Islamic divorce in line with that of the Jewish get. The inclusion of a Muslim marriage by nikah could be inserted in s.10A(1)(a)(ii) through the use of a statutory instrument following the provisions of subsection 6. By linking Islamic marriage to civil marriage, a greater number of women would be given full protection in family law and the right to a civil divorce, lessening the need to attend sharia councils and simplifying the decision process.
2. Awareness campaigns
The panel believes that, on the evidence, cultural change is required within Muslim communities so that they acknowledge women’s rights in civil law, especially in areas of marriage and divorce. Awareness campaigns, educational programmes and other such measures should be put in place to educate and inform women of their rights and responsibilities, including the legal protection that civilly-registered marriages provide.
There is also a need to ensure that sharia councils operate within the law and comply with best practice, non-discriminatory processes and existing regulatory structures. In particular, the panel believes that a clear message must be sent that an arbitration that applies sharia law in respect of financial remedies and/or child arrangements would fall foul of the Arbitration Act and its underlying protection.
Finally, there is the need to raise public awareness in communities as to the availability of legal aid and the exceptions to the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act (including the domestic violence and child protection exceptions) which mean that public funding is available to applicants.
The previous two recommendations aim gradually to reduce the use and need for sharia councils. However, a majority of the review panel sees the need, in the meantime, for a further recommendation on how to prevent discrimination in the immediate and medium term. The recommendation of regulation is not unanimously supported; one member of the panel is not in agreement; and the dissentient’s reasons are detailed in the report.
Recommendation 3 proposes the creation of a body that would set up the process for councils to regulate themselves by designing a code of practice for sharia councils to accept and implement. There would be a one-off cost to the Government of establishing that body but, subsequently, the system would be self-regulatory. The body would include both sharia council panel members and specialist family law expertise. The report notes that none of the sharia councils was opposed to some form of regulation and some positively welcomed it.
We hope to post a longer analysis of the report in due course.
Thank you for this – I look forward to reading your longer analysis in due course. I’m especially interested in the implications of the changes to the Marriage Act; for example, will the provision you describe as ensuring “that the celebrant of any marriage, including Islamic marriages, would face penalties should he or she fail to ensure that the marriage was also civilly registered” affect people like Pagan celebrants offering handfastings?
That, if I may say so, is a very good question. Russell Sandberg, Head of Law at Cardiff – who knows far more about this subject than I do – will be writing a guest post on the report and I’ll draw it to his attention.
My own untutored view is that any amendment to the Marriage Act 1949 would have to be drawn very carefully so as not to fall foul of the Equality Act 2010: the bottom line is, ‘what is a “religious” marriage anyway: a ceremony with any kind of religious element whatsoever that purports to join two people in an indissoluble relationship?’ Would an informal celebration of a couple’s mutual commitment qualify as a religious marriage?
My own feeling is that the issue points up the need for wholesale reform of marriage law in England and Wales. The confusion couldn’t easily arise in Scotland or Northern Ireland because the law there licenses celebrants rather than buildings, so if the celebrant of whatever religious persuasion (or, in the case of humanists in Scotland, of none) is licensed, then it’s a valid marriage in the eyes of the secular law.
Rhiannon: If the law was changed as recomended then yes it would criminalise Pagan ‘handfasting’ ceremonies UNLESS the couple had had a Civil Marriage first. The proposed change would remove an anomaly in the present law. Under s.75 of the Marriage Act 1949 it is a Criminal Offence to perform a Marriage ceremony that is not registered under the Marriage Act though s.46 makes it clear that this does not apply if there has been an earlier Registry Office wedding.
Unfortunately, s.75 was drafted at a time when nobody was thinking in terms of Muslim, Hindu etc etc marriages in Britain and so its wording is a bit obscure. Arguably it does apply to unregistered Muslim Marriages though the case of R. v. Bham  1 Q.B. 159 suggests that it does not. Be that as it may, the fact is that s.75 is not being used to prevent unregistered Muslim marriages though it is being used to prevent unregistered Jewish and Christian marriages. This is discriminatory to Jews and Christians and has undesirable consequences in particular for Muslim women.
If s75 is amended then all forms of Marriage will have to be registered otherwise the celebrant and/or organisers will be committing a criminal offence. This would either mean registration at the time of the religious ceremony or registration prior to the ceremony
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