04 February 2013
Family Law Solicitor Kaleel Anwar on the British Court and Sharia Divorce
Sharia Law has been operating in the UK, managed by locally-appointed councils in parallel to the British legal system since 1982. Thousands of Muslims turn to them to help resolve family, financial and commercial problems in accordance with Sharia Law principles.
However, these informal councils have no legal powers and they cannot impose any penalties. This could change in the wake of the latest High Court judgement. As a practising lawyer in London, I have witnessed the law of the land and religious law, grow, evolve and co-exist in almost perfect harmony. I have also witnessed the opposite.
In a landmark ruling, Britain's High Court has approved the terms of a Divorce case under Jewish law which could pave the way for settling divorce cases by Sharia and other religious courts in the country.
A couple this week, had their divorce settlement under Beth Din, or Jewish law, referred to by the High Court. The case involved a couple of orthodox Jews in their 20s who married in 2006 in a Jewish ceremony and initially lived in Israel, returning to London for the birth of their first Child.
According to the Times, it is the first time in British legal history that an English family judge has agreed to refer a divorce dispute to a religious court.
The judge said he examined the principles used by the Beth Din and ensured that they were in line with the laws in England and Wales. He, however, did make it clear that the arbitration or ruling by the Beth Din was not binding.
The key message within this case is that the outcome by the New York Beth Din was ‘in keeping with English Law’. There was no detrimental effect upon either of the parties or injustice of any sort.
In my view this is a pragmatic solution to an issue which can easily escalate into a court battle between two parties who essentially seek the same outcome.
Family Law has hugely evolved throughout the history of this country. Put simply, the courts will do their best to provide a weaker party with the legal protection as their ‘needs’ dictate, when they are in a position of detriment. The courts of England and Wales have for many years been keen to prevent litigation at any cost. This case is a clear example of sending re-iterating this message to all potential litigants.
As a Family Lawyer who regularly advises client’s as to their position under the law of Sharia. I doubt this case will have any significant effect in considering Sharia law within disputes in relation to financial remedies in the divorce courts of England and Wales.
Last year the courts made their position clear. In the case of Al-Saffar v Al-Saffar, the wife within the proceedings would have suffered financial detriment if the court focussed its ruling on the basis of religious law so the law of the land continues to prevail.
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