03 October 2012
Family Law Specialist Cara Nuttall discusses cases involving Muslim Couples
An article on the Huffington Post today discusses one US Attorney's experience of cases involving Muslim couples, and the complications which can be caused when Sharia Law and Civil Law clash.
Certainly, cases involving Muslim families, as with any religion or culture, can bring about additional and sometimes complex considerations when trying to allow a family to deal with their Family disputes, be it Separation and Financial matters, or Children disputes, in accordance with their beliefs and expectations, whilst also ensuring that it takes into account and will be recognised by English Law.
There are many ways in which the 2 sets of law differ, not only in terms of outcome, but also in terms of practical issues, such as women attending court unaccompanied in private family proceedings, and in relation to giving evidence. As discussed in the Huffington article, some countries and some states in America have laws which specifically ban a judge from considering or applying foreign law. In this country, it is clear that English law will always prevail, but certainly in the arena of family disputes, the religious background of the family will be something that the court takes into account.
Given how significantly the systems differ in regard to many aspects of Family Breakdown, such as validity of marriage, validity of Divorce, payments to be made upon Divorce and with which parent a child should live, it can come as a significant shock to some when they discover what orders a court is likely to make. A recently reported case, Al-Saffar, demonstrates this issue. Dr Al-Saffar had paid his wife a sum of money calculated under Sharia principles following their separation, a sum far lower than she would have been entitled to under English Divorce Law. She then issued financial remedy proceedings. Dr Al-Saffar argued that he should not be obliged to make additional payments over and above those required of him by the religion, however the court disagreed and confirmed that where families are subject to the jurisdiction of the English court, it is civil law which will prevail.
Given the complexities which can arise in any case involving religious or cultural issues, it is always wise for parties to receive legal advice early on, so they understand the potential issues, and can manage their expectations accordingly. The complexities can also often be reduced with specialist knowledge and experience. As the outcome in each Family Law case is dependent upon the individual circumstances of the case, an experienced practitioner can help a client try and tailor a settlement which takes into account the key considerations from both systems, arriving at an acceptable and workable compromise for all concerned.
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