Increasingly, family law practitioners, whatever their speciality, will have to deal with the affairs of Muslim clients or parties. This can throw up religious and cultural issues not always readily apparent to the anglicised mind. This book seeks to meet that need. The author is a practising family barrister who stands within the Muslim community and thus has first hand daily experience of the issues she seeks to address.
The book opens with a short analysis of Islam and Sharia law and what may surprise is that, whilst Sharia is a coherent concept, it is very diffuse in its expression, deriving as it does from common sources of Qur'an and Prophetic Sayings but mediated and developed through at least five different juristic schools. Sharia as expounded in this book is based on the Hanafi school of thought through a Sunni perspective. That means that the material remains of manageable length and in fact represents the approach of most Muslims in this country. That Sharia scholars may profoundly differ in their interpretations is made clear in the text, a vivid example being found in an extended consideration of the validity of a Talaq (divorce) pronounced under the influence of alcohol (pp 120–122). Moreover, Sharia touches on matters which may never occur to the anglicised mind, as for example the importance of suckling a child in both determining kindred affinity for the purposes of marriage (p 44) and also forming an attachment for adoption (p 178).
The book makes it clear that Muslims see in Islam a complete way of life, a concept more readily comprehensible to Jews or Roman Catholic or Orthodox Christians than to North European Protestants or secularists. At the same time their understanding of Sharia (dictated as it may be by the chosen school of juristic thought) is often an accident of geography (where the family came from) more than a matter of personal decision.
Ninety-five per cent of all letters received by the Sharia Councils in this country relate to matrimonial problems and the great majority of those concern women seeking divorce. Not only does that emphasise the importance of these issues to family lawyers generally, but it reminds them of the bank of experience, advice and mediation services which the Councils will have built up. The remainder of the book (chapters 3–10) comprises a study of the relationship to Islam and Sharia of particular aspects of family law: marriage and divorce, children, family finances, adoption and fostering and succession.
It is recognised throughout the book that in the end English family law must prevail and that the jurisdiction of the English court cannot (and should not) be ousted. At the same time Muslims would also wish to order their affairs in an Islamic compliant manner, an aspiration which advisors and (if legally permissible) judges ought to respect. This is most clearly seen in the final chapter on Succession where a specimen will is provided. The author has a clear grasp of domestic family law and is thus alert to those areas where tensions are likely to arise. She can also offer practical advice over potentially helpful contacts, well illustrated in Chapter 4 on Forced Marriage.
Some of these areas of tension are delineated in case studies or (where domestic authority exists) case commentaries. These are helpful not only in raising issues important to Muslim clients which are easily missed by advisors or judges but also in illustrating how in the area of family law it is difficult to be dogmatic about what Sharia lays down. The problems of marriage and divorce and the intractable difficulties over recognition of foreign marriages and divorces will be more familiar to practitioners than some of the other issues raised below.
Prenuptial contracts are very much at the forefront at present and these can be important where parties need a religious as well as a secular divorce. A woman by such contract may reserve the right to pronounce Talaq (a right automatically vested in a man) and may insert a non-polygamy clause. A helpful flow chart (p 111) shows how Talaq operates in religious law. At the end of the day, however, it seems to be the author's view that there will be few if any cases in which a divorce justifiable under domestic law will not be likewise under Sharia and vice versa. The same may be true of ancillary relief though it is important to bear in mind that financial obligations in Islam are essentially one-way: the duty of the husband to support his wife and children. Where a working wife contributes to family finances, she does so of her own free will and without obligation. This may produce a mindset not immediately recognised by other lawyers.
The care of children after divorce is, unlike the wide discretion in domestic law, subject to some detailed rules. However since every Islamic decision maker must take account of children's wishes and must make their welfare the yardstick of decision making, it may well be that the two approaches would more often than not arrive at the same solution. What may be interesting for family practitioners is the weight to be given to these rules when discerning welfare, given that the children will usually continue to live in a community which accepts these rules as authoritative.
However, the differences are clearer when it comes to the question of adoption and, it may be thought, are greater than the author seems prepared to allow. The concepts of fostering and adoption are approved and encouraged in Islam. The most obvious difference (at least as far as an adoption order is concerned) relates to lineage. This is profoundly important in Islam, as it is in many other jurisdictions including many in Southern Europe. Domestic and Sharia law agree that children should know their origins and status but in Sharia the parental name and status is preserved. The final result is something closer to the domestic concept of special guardianship than of English adoption.
This book hints at significant problems ahead, not least in terms of trans-religion placements of children potentially raising the most profound difficulties. However, it remains instructive and useful in the present but with the caveat (acknowledged by the author) that Islam and Sharia are much more intricate and complex than a survey of this length, however valuable in itself, can accommodate.
