Muslim family law in Britain

A PAPER SUBMITTED TO THE INTERNATIONAL  FAMILY LAW CONFERENCE ON 14 MAY 2014 AT THE UNIVERSITY OF ISLAMABAD.

FOREWORD

“Musawah”, an NGO based in Malaysia, has written a 60-page report in Arabic entitled “A vision from inside”. It highlights the cases of parity between men and women in 30 countries worldwide, beginning with Afghanistan and ending with Uzbekistan. In its heading under “Equality in the family is possible”, it raises five points of concern, namely:

1. Non-registration of Islamic marriages.
2. Polygamy
3. Forced marriage
4. Divorce
5. Non-parity in the family and the break- up of marriages.

We are concerned here with the discussion on Divorce where a mention is made of Shariah Councils. It says, “More and more women are turning towards the Shariah Councils which are self-appointed, asking for a religious divorce though it is not required as a condition in the civil marriages and it is not recognised by Islamic law in other countries. It should be noted that the Shariah Councils hold a very conservative vision towards divorce. The whole procedure may take a very long time and may cause a lot of stress to the woman and may lead to weaken her position as well. Generally, men try to avoid the religious divorce in order to secure a number of withdrawals on the part of the wife during the civil litigation process or to use it as a tool to annoy her mentally.” (1)
It also says,

“The feminist movement has started emerging now among the Muslim society. It has an increased contact with the feminist movements concerned with Islamic issues abroad. They demand  recognition of their rights in Islam, a change in the stance of Shariah Councils and families in a way that can bring them in line with the present realities of life. They are receiving support from some academics among men and society leadership.” (2)
As one of the founders of the ‘Islamic Shariah Council’ in the United Kingdom in 1982, I must comment on these erroneous discussions.

First, let me explain how these “self-appointed” Shariah Councils come to existence in non-Muslim countries where the Muslim community is just a tiny minority. Is this community not permitted to arrange its personal affairs itself? What about issues of personal law, such as religious marriage, religious divorce, inheritance and endowments? According to the Fiqhi perspective and to historical realities, it is perfectly natural for religious minorities to wish to arrange such issues within their own communities. Muslim jurists, especially in the Iberian peninsula after the fall of Granada in 1492 when many Muslim communities were left under Christian rule, emphasised the importance of establishing a limited semi-legal system in issues of personal law. Let us take the views of the Fuqaha from the four Sunni schools of thought:

1-    Hanafi law. Ibn Abdin says, “Those countries where there are non Muslim judges, it is allowed for the Muslims to hold Jumah and Eid prayers. A qadi can hold the post of qadi with the consent of the Muslims. It becomes incumbent upon them to appoint a Governor over them.” (3)
He further adds, “According to Al Fath (Fath al Qadir, Ibn al Humam d. 861 AH, 1456 AD), if there is no Sultan nor someone to deputise him, as in the cases of Muslim cities such as Cordoba where non-Muslims had taken control, it is incumbent upon the Muslims to agree upon someone from among them who can be appointed as ruler, and who can then appoint a Qadi. Similarly they should appoint an Imam to lead them in Jumah prayer. This is the opinion which satisfies the soul and hence it should be adopted.” (4)

2-    Maliki law. Muhammad bin Nasr Al Dawudi said: “Wherever there is no Sultan or there is an unjust Sultan who does not care about the limits laid down by Allah, then the trustworthy and the people of knowledge stand there in the place of the Sultan.” (5)
He was asked about a town where there is no Qadi, nor a Sultan, and whether the trustworthy among them can take care of the sales, transactions and marriages?
He replied, “The trustworthy people stand in the place of a Qadi where there is no Qadi nor a Sultan.” (6)
 Ibn Firhun, may Allah have mercy on him, said: “Al Mazri (from Sicilly, d. 536 AH, 1142 AD ) mentioned in his explanation of Al Talqin that the office of Judge can be appointed in two ways. It can be appointed by the Amir al Mumineen or by one of his governors. Secondly, a person who fulfils the criteria of a Qadi can be appointed by a team of people with knowledge, awareness, credibility and wisdom. This is in situations where they have no access to an Imam…because of a dire need.” (8)

3-    Shafi’i law. The most prominent person to speak extensively on this topic is Imam Al Juwaini (d. 475 AH, 1085 AD) in his wonderful book “Al Giyathi.” He writes, “If the time is devoid of an Imam or a Sultan who has powers to run the affairs (of the country), then all matters are referred to the scholars. It then becomes incumbent upon the people, to whichever class they belong, to refer back to their scholars and to abide by their judgement in all matters.  If they do that, they are guided to the right path. They will be the scholars and the rulers. If it is difficult to unite under one person, each town or province should stick to their own scholar.” (9)

4-    Hanbali law. Qadi Abu Ya’la said, “If a town loses its Qadi, the people should appoint someone as a Qadi for themselves. His orders and rulings are binding as long as there is no Imam to rule over them.” (10)
This is of course in line with the saying of Allah in the Quran:

O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result.

According to many exegists, “those in authority among you” refers not just to rulers but to scholars as well.
Examples of cases where a Muslim minority has referred to its own personal laws is that of “Amarat Shar’ia” in the Bihar province of India. This started in the days of the British Raj in India and continued to exist even after the independence of India. The case of the Muslim community in Britain should be viewed in a similar context. Representatives of ten leading Islamic centres met in 1982 in the Jami’a Mosque of Birmingham and decided to establish the first Islamic Shariah Council for the United Kingdom. The objective of the Council was not just to guide the Muslims in matters of their religion and to issue fatwas when needed, but also to create a bench of ulama’ who would function as Qadis in matters such as matrimonial disputes that were referred to them. The creation of the ISC was thus a manifestation of the will of the Muslim community and a reflection of their collective desire to manage their personal affairs. This was not an exercise in self-appointment as assumed by the authors of ‘Musawah’. The fact that the ISC has dealt with an estimated eight thousand cases to date of divorce and khul’a shows that its services are desperately needed and appreciated by the Muslim community.

The establishment of such a religious body is not unique to the Muslim community. The Jewish minority in Britain has been present for over 350 years and has set up the Beth Din for a similar purpose. Other religious minorities such as the Sikhs and Hindus have also established alternative dispute resolution services for their respective communities.

In the majority of cases, women who apply to the ISC for divorce will find their cases resolved within six to nine months. The main culprit for delays in this process is the obstinacy of estranged husbands (especially those who live abroad) who deliberately refuse to engage with the ISC in resolving the issue. The existence of the ISC is legal under British law, based on legislation such as the Arbitration Act 1996 which permits disputants in civil matters to go for mediation and alternative dispute resolution. The ISC is bound by civil legislation, and so it cannot judge on issues of child custody, maintenance and especially on issues of criminal law. It is thus not a parallel legal system but a procedure granted by legislation.

Chapter 1- CIVIL MARRIAGE AND SEPARATION.

1-    A marriage that takes place outside the UK will be considered as a valid marriage in the UK as long as it is legally valid in the country in which it was performed. This can lead to some inconsistencies within English law. For example, if a non- British couple are resident in a country that allows the marriage of a 15 year old girl, this marriage will be considered valid under UK law should the couple wish to travel to the UK as husband and wife. However, if a 15 year old British girl was to marry in England, her marriage will be considered void.
Similarly, a polygamous marriage in a country which allows polygamy will be considered valid in the UK as long as the parties are not habitually domiciled in the UK. They will be permitted to travel to and live in the UK. However, a man who is habitually domiciled in the UK will not be permitted to contract a polygamous marriage either in the UK or abroad.

2-    Most Muslims living in the UK realise they need both an Islamic marriage and a civil marriage. The Islamic Nikah provides the religious mandate for cohabitation, and the civil marriage provides legal protection in the event of divorce or death. The Nikah can be performed anywhere, such as a function hall, Mosque or even home of the bride. The civil marriage can only be performed at a Civic Town Hall. The Nikah is not considered binding under English law.

English law tried to change this situation under The Marriage (Registration of Buildings) Act 1990 and the Marriage Act 1994. Mosques can now be registered as ‘approved premises’ for conducting both religious and civil marriages at the same time. An authorised registrar has to be present to conduct the civil marriage in the Mosque. Unfortunately, not many Mosques have shown an interest in being thus registered.

3-    There are some differences in the requirements of Shariah and civil marriages. A civil marriage requires the presence of the couple and two witnesses. Shariah law also requires the presence of the bride’s guardian, and requires the amount of Mahr to be included in the contract.

4-    A civil marriage guarantees the couple certain rights which they may not receive if they have only a religious marriage and are only classed as cohabitees. A couple who have only a religious marriage may have to go to great lengths in court to prove that they are actually married. If the marriage breaks down, matrimonial relief regarding property matters and custody of children will automatically apply. Upon death, a legally married wife will be eligible for a widow’s pension. If there is no Will after a death, a legitimate spouse will have greater rights under Intestacy rules than someone who was not legally married and so is considered to be a cohabitee only.

5-    A petition for divorce in an English court  may only be granted if the marriage is considered to be irretrievably broken down on one of five grounds:

i)    Adultery
ii)    Two years desertion.
iii)    Two years separation and both parties agree to divorce.
iv)    Five years separation- consent of both parties is not required.
v)    Unreasonable behaviour.

6-    The Family Law Act 1996 allows for relief to be awarded when one party has suffered domestic abuse. This relief is available to both married and un-married couples. The court can make an order in respect of property, such as restricting the right of one party to enter the property, or requiring the discharge of mortgage or rent.

THE STATUS OF CIVIL DIVORCE ACCORDING TO SHARIAH.

1-    If an Islamic divorce is obtained outside the UK by parties who are normally resident in the UK, this divorce will be considered to be valid by English courts as long as it is valid in the country in which it was obtained. For example, if an English man marries a woman who is domiciled in Egypt, the couple can live in England as a married couple. If the lady later returns to Egypt and obtains a khul’a, this will be accepted by English courts as a valid divorce and the parties will not be permitted to petition for a civil divorce in England.

2-    Shariah law permits a man to give talaq to his wife, even if she does not agree to the divorce. It also allows a woman to apply for khul’a to a Shariah court; if the husband refuses to give his consent to this, the qadi is at liberty to dissolve the marriage against the husband’s wishes by granting Faskh (judicial dissolution). In other words, both men and women are at liberty to obtain divorce under Shariah.

The situation is however very different under Judaic law. A Jewish religious marriage can only be dissolved if the divorce document, called a ‘get’, is freely given and freely received. The Jewish Beth Din has no authority to force a husband to give a get, or to force a wife to receive a get. In fact, any coercion will make the get invalid.
This situation has led to misery for many Jewish women whose husbands have walked away without giving them a get, leaving them in limbo and unable to re-marry religiously. To remedy this situation, the Divorce (Religious Marriages ) Act 2002 made provisions to allow couples who are involved in civil divorce proceedings to apply for an order that a Decree Absolute is not to be granted unless the required get has also been given and received. The wording of this Act makes it possible for Muslims to apply for similar orders as well, and the ISC has been involved in a number of cases where a Decree Absolute has been put on hold by the civil court until the Islamic divorce has also been granted.

3-    The fact that one or both parties have applied to an English court for a civil divorce is of great importance when the ISC is dealing with religious divorces. English courts issue three kinds of divorce:
i)    The Petitioner is the husband.
ii)    The Petitioner is the wife, and the husband has given written consent for the proceedings to continue.
iii)    The Petitioner is the wife, but the husband failed to attend the proceedings or to defend the petition.


The ISC considers the first two kinds of divorce to be similar to Talaq, as the husband has given consent to divorce. It will therefore ask the husband to sign a Talaq form as well. If he refuses, the Council will dissolve the marriage on the basis of consent to Talaq.
In the third type of divorce, it is clear the husband has not consented to divorce. In such a case, the wife will be asked to apply for khul’a.

CHAPTER 2- SHAM MARRIAGE AND SEPARATION.

A sham marriage is a contract in which the parties involved do not intend a real marriage and have no regard for its requirements and pre-requisites. This marriage is used to obtain certain benefits, such as stay in the country or government benefits of a financial nature. It is very common to hear of men and women contracting such marriages with British spouses in order to obtain valid stay in the country, and they will make large financial payments for this service. When a sham marriage is conducted for payment, the couple will not live together and will not consummate the marriage. Once the stay of the partner has been achieved, they will apply for a civil divorce.

A sham marriage may ostensibly meet the requirements for a valid Islamic Nikah. It has Ijab and Qubul, the presence of two witnesses and the signing of a contract. The absence of a Wali is not an issue as according to the Hanafi tradition, the bride does not necessarily require the consent of a male guardian (wali). However, what is clearly missing is the intention to marry, the desire to live together in love and affection, and so forth. This goes against the teachings of the Quran, such as the following verse in Surah Rum:

And of His signs is that He created for you from yourselves mates that you may find tranquillity in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought.
The Prophet (saw) said, “Marry a woman who loves, and bears children, because I will be proud of my Ummah on the Day of resurrection.”
A question on sham marriage was asked to Dr Muhammad Bakr Ismail by a female doctor who had been working in Saudi Arabia. She wrote, “When my husband died, I was asked by the authorities to produce my Mahram to continue with my job. I kept on delaying the matter until my Iddah came to an end. Then, a colleague of mine suggested we enter into a sham marriage to meet the requirements for my work permit. The man had a wife in Egypt and we spent a long time in the Kingdom with a marriage that was only on paper. A few times he implied he wanted marital relations, but I replied ‘God forbid! We only married to meet a certain requirement.’ He then said that he had married me because he loved me from the core of his heart because of my character, wisdom and excellent record of medical practice. In the end I succumbed to him, forgetting that it had been only a sham marriage. In reality, I wanted now for this to be a real marriage, but I was too shy to admit this. My question is, was this marriage correct and does it have the legitimate consequences of a real marriage? In other words, was our sexual relation halal or haram?”
Dr Ismail replied, “There was no need to enter into a sham marriage when each of you needed the other and so could have had a real marriage. Our faith permits a man to have up to four wives anyway. This sham marriage was designed to fool yourselves and to deceive the authorities of the Kingdom in which you have been working.
You should know that if you said to the man, ‘I wed you from the core of my heart’, and he said, ‘I accept you from the core of my heart’, this marriage would still not be valid even if there were two witnesses to it. This is because the marriage is devoid of real intention and consent. Both of you know this marriage was a complete lie. You could only begin a sexual relationship after you had signed a new and honest contract in the presence of two trustworthy witnesses.
However, your relationship cannot be labelled as adultery because of the element of doubt that exists. As you conducted a sham marriage, your relationship does not come under acts of obscenity, but it is a sin which demands sincere repentance from both of you. As I said earlier, you should have entered into a new marriage contract. You could retain your previous contract for government business such as safeguarding your rights and authenticating the lineage of any children. Remember also it is your husband’s duty to act justly with both his wives. And Allah is the One who enables.”

CHAPTER 3- MARRIAGE AND DIVORCE IN ISLAMIC CENTRES.

1-    Most Mosques issue their own marriage certificates when a Nikah ceremony is performed. There is no central body in the UK which sets out an official certificate. Most certificates will require the following information:
Names and signatures of bride and groom.
Addresses of bride and groom.
Amount of Mahr agreed.
Name of Imam who performed the Nikah.
Date of ceremony.
Names and signatures of two witnesses.

2-    The ISC requires the name and signature of the bride’s guardian (wali) as well. It also asks for the Registration number on the Civil marriage certificate, as well as the location and date of the civil marriage. Given the lack of rights available to women who are not legally married, the ISC is attempting to increase public awareness of the importance of having a civil marriage as well. It also allows certain pre-nuptial conditions to be attached to the contract.



3- Under English law, a couple who have a Nikah but no civil marriage are not considered to be legally married. They are considered to be only cohabitees. An English court cannot make financial provisions for a cohabitee, such as for maintenance. In divorce proceedings or after death, the wife has rights to her husband’s pension which a cohabitee does not have. Under Intestacy rules, a legitimate spouse has inheritance rights which a cohabitee dies not have. However, financial provisions can be made for children, regardless of whether or not the couple were married.

4-    COMMON REASONS FOR DIVORCE APPLICATIONS:

• Forced marriage.
• Alcohol or drug addiction.
• Incompatibility.
• Domestic violence.
• Stress caused by spouse’s family.
• Financial problems.
• Separation, perhaps due to work abroad.
• Infidelity.
• Impotence.

5-    ISC Statistics
In 2010 there were a total of 700 applications made to the ISC, of these 116 were from men applying for Talaq and 584 were from women applying for a khula. The following statistics show the ‘main reasons’ stated on the applications

1)    Domestic violence	199
2)    No financial support	104
3)    Separation/neglect/abandonment	99
4)    Adultery	75
5)    Unreasonable behavior	64
6)    Lies/trust issues	64
7)    Irreconcilable differences/not compatible	62
8)    Not fulfilling duties	53
9)    Polygamy	43
10)Alcohol	37
11)Breakdown of marriage	35
12)Forced marriage	33
13)Family	32
14)Already pronounced divorce/he applied for civil divorce	29
15)Drugs	28
16)Married for visa/passport	26
17)No marital relationship	25
18)Never lived as husband and wife	22
19)Not practicing Islam	21
20)Unhappy	15
21)Other Inc: Does not want children, does not want to live together, has criminal record    and in prison	10
22)Gambling	10
23)Disability	9

6-    Procedure for judicial divorce when a woman is the applicant to the ISC.
•    The woman fills in an application form in which she has to give valid reasons for the application.
•    A letter is written to the husband to ask for his response to his wife’s application. A total of three letters are written if he does not respond immediately.
•    She is called for an interview and avenues for reconciliation are explored.
•    If the husband accepts the Khul’a, he is asked if he has any conditions.
•    If he refuses the khul’a, both parties are invited to a joint meeting. This meeting will also explore avenues of reconciliation and counselling.
•    If the couple agree to a reconciliation, an agreement will be drawn up for a stated period. There may be more than one meeting, and family members may also be involved.
•    If there is no hope for reconciliation, the applicant’s reasons for applying for divorce will be examined. The interviewer will give their recommendations regarding this case.
•    The case will go to the panel of scholars, which must consist of at least three scholars in each session. The panel will discuss the case, issue recommendations, or dissolve the marriage.
•    At least three grounds for divorce have to be included in the records.
•    The scholars decide whether the marriage ends in Khul’a or Faskh. In both cases, the wife is asked to return the Mahr (Dower), which is often in the form of cash or jewellery. Gifts exchanged during the marriage celebrations and other wedding expenses are not included in this.
•    If the couple have children, the courts will normally award custody to the mother. The ISC is not permitted by law to deal with custody issues. However, it will ask the mother to sign a solemn declaration that she will allow the father to see his children under the terms of any court judgement.

7-    Procedure for judicial divorce when a man is the applicant to the ISC.
•    The couple will attend an interview to ascertain whether any talaqs have been given in the past.
•    The man signs a divorce paper in the presence of two witnesses. This is considered to be a revocable divorce unless he has already given two talaqs.
•    The issue of Mahr is resolved. The ISC will not issue a divorce certificate until the Mahr has been paid in full.
•    Any further financial claims by the wife are discussed.
•    In the past, English courts generally refused to deal with Mahr issues as pre-nuptial agreements are not common in England. However, judges are increasingly treating Mahr as part of the financial claims of the wife against her husband. The ISC has been successful in obtaining a Mahr of £30,000 for one client, and £70,000 for another client.

8-    Talaq Tafweed: Delegation of Talaq to wife.
i)    Official Pakistani and Bangladeshi marriage contracts allow the husband to delegate his right of talaq to his wife. If a woman has this fact recorded in her marriage contract, the ISC will ask her to sign a Tafweed paper in the presence of two witnesses.
ii)    Avenues for reconciliation will always be explored before divorce papers are signed.
iii)    There is a difference of opinion among scholars regarding the permissibility of Talaq Tafweed. Hanafi scholars permit it, as do some Hanbali scholars.

The late Mufti of Saudi Arabia, Sheikh Ibn Baz was once asked about the permissibility of Talaq Tafweed. The questioner wrote, “It is well known in Shariah that divorce is a right given to the husband, but many scholars are of the opinion that if this right is delegated to the wife, she can divorce herself. This also allows the man to deputise another man to divorce his wife.”

The Sheikh replied, “I do not know of any hadith from the Prophet (saw) about the delegation of divorce or the appointment of another man to do so. But the scholars have taken that which is implied by the Book and the Sunnah, allowing delegation in the rights of a husband. So if he chooses to delegate his right to the wife or to another man, there is nothing wrong with this according to Shariah principles. As the man cannot divorce his wife three times, his deputy cannot do so either.”

9-    Divorce in polygamous marriages.

When a man takes a second wife, he can only do so with a Nikah as English law treats bigamy as a criminal offence. An English civil marriage will not be possible. Women who are second wives in such religious-only marriages can have no recourse to civil courts. The only way women in such situations can obtain a divorce is through shariah councils.


CHAPTER 4- MARRIAGE WITH KITABIYYAH: RULES AND REGULATIONS.

This matter has been discussed extensively by scholars both past and present. I would like to summarise here a fatwa by Sheikh Muhammad Yusuf al Qaradawi which deals with this issue in great detail:
“I have been asked this question by many people during my travels in Europe and America. Let me first make it clear that idolatorous women (Mushrika) are excluded from the definition of Kitabiyyah. There is a clear prohibition of such marriages in the following verses.
In Surah Al Baqarah, the Almighty says,

And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite [you] to the Fire, but Allah invites to Paradise and to forgiveness, by His permission. And He makes clear His verses to the people that perhaps they may remember.
In Surah Al Mumtahanah, He Says,

O you who have believed, when the believing women come to you as emigrants, examine them. Allah is most knowing as to their faith. And if you know them to be believers, then do not return them to the disbelievers; they are not lawful [wives] for them, nor are they lawful [husbands] for them. But give the disbelievers what they have spent. And there is no blame upon you if you marry them when you have given them their due compensation. And hold not to marriage bonds with disbelieving women, but ask for what you have spent and let them ask for what they have spent. That is the judgement of Allah; He judges between you. And Allah is Knowing and Wise.

We have to exclude atheist women from this as well. If marriage with a woman who is a Mushrikah and believes in a God is not permitted, then marriage with someone who does not believe in God at all cannot be permitted either. The same rule applies to women who are apostates. If such a woman leaves Islam and then embraces another religion such as Judaism or Christianity, marriage with her will still not be permitted. This is according to the following verse of Surah Al Baqarah:

They ask you about the sacred month - about fighting therein. Say, "Fighting therein is great [sin], but averting [people] from the way of Allah and disbelief in Him and [preventing access to] al-Masjid al-Haram and the expulsion of its people therefrom are greater [evil] in the sight of Allah . And fitnah is greater than killing." And they will continue to fight you until they turn you back from your religion if they are able. And whoever of you reverts from his religion [to disbelief] and dies while he is a disbeliever - for those, their deeds have become worthless in this world and the Hereafter, and those are the companions of the Fire, they will abide therein eternally.
The followers of the Baha’i faith are included in the prohibition as well. She is either an apostate (if she used to be a Muslim) or is a Mushrik, as Islam does not recognise any claims of a revealed Book after the revelation of the Quran. As for marriage with Kitabiyyah, the majority of scholars allow it in accordance with the following verse of Surah Al Maidah:

This day [all] good foods have been made lawful, and the food of those who were given the Scripture is lawful for you and your food is lawful for them. And [lawful in marriage are] chaste women from among the believers and chaste women from among those who were given the Scripture before you, when you have given them their due compensation, desiring chastity, not unlawful sexual intercourse or taking [secret] lovers. And whoever denies the faith - his work has become worthless, and he, in the Hereafter, will be among the losers.
It is reported that Abdullah bin Umar did not allow marriage with kitabiyyah as he believed Jews and Christians had committed Shirk. The Shi’a Imamiyyah hold this opinion as well. However, I give preference to the earlier opinion based on two things:
1-    The verse of Surah Al Maidah suggests a concession to the general prohibition understood by the verses of Surah Al Baqarah and Surah Al Mumtahanah.
2-    In Quranic terminology, the Ahlul Kitab are classified separately from Al Mushrikin, as shown in verses 1 and 6 of Surah Al Bayyinah and verse 17 of Surah Al Hajj.

But marriage to a kitabiyyah should be regulated by four conditions. The first two of these are present in the verse of Surah Al Maidah.
1-    She must believe in the divine scriptures. This is why the title of Ahlul Kitab is given to the Jewish and Christian people.
2-    She must be a chaste (‘Afifa) lady, who does not fornicate or keep male partners. It is reported that a man asked Hasan Al Basri, “Is it permitted to marry a woman from Ahlul Kitab?” He replied, “Why is he after Ahlul Kitab women when Allah has created so many Muslim women! But if he is adamant on doing so, then let him marry a chaste lady, not someone who has fornicated (musafihat). The man asked, “What is a musafihat?” The Sheikh replied, “The one who follows the man who looks at her.”
3-    She must not be among the Ahlul Kitab who are waging a war against Muslims. Ibn Abbas said, “Among the Ahlul Kitab are those who are permitted for us,and those who are not permitted for us. The women of the community that give Jizya are allowed for us, and those that do not give Jizya are not allowed. He then read this verse of Surah At Tawbah:

Fight those who do not believe in Allah or in the Last Day and who do not consider unlawful what Allah and His Messenger have made unlawful and who do not adopt the religion of truth from those who were given the Scripture - [fight] until they give the jizyah willingly while they are humbled.
This means that only women from among the Ahlul Dhimma are permitted for Muslim men to marry. This opinion is supported by Ibrahim An Nakha’i, Ibn Jurayj and Imam Zaid ibn Ali. Imam Abu Bakr Ar Razi also supports this opinion as it is in line with the following verse of Surah Al Mujadilah:

You will not find a people who believe in Allah and the Last Day having affection for those who oppose Allah and His Messenger, even if they were their fathers or their sons or their brothers or their kindred. Those - He has decreed within their hearts faith and supported them with spirit from Him. And We will admit them to gardens beneath which rivers flow, wherein they abide eternally. Allah is pleased with them, and they are pleased with Him - those are the party of Allah. Unquestionably, the party of Allah - they are the successful.

In Surah Ar Rum we are told that marriage is based on love and affection, so how can a man marry among such people? 

And of His signs is that He created for you from yourselves mates that you may find tranquillity in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought.

This is also in line with this verse of Surah Al Mumtahanah:

Allah only forbids you from those who fight you because of religion and expel you from your homes and aid in your expulsion - [forbids] that you make allies of them. And whoever makes allies of them, then it is those who are the wrongdoers.
4-    Such a marriage is permitted as long as it does not lead to fitnah, and nor should any harm be expected, as everything permissible is only allowed if no harm is done. If its practice leads to general harm, then it should be prevented in general. If its practice leads to a particular harm, then it should be prevented in that particular. This rule isbased on the famous Fiqh maxim: “No harm to others and no harm to yourself.” It seems that the Caliph Umar expected such harm to happen when he wrote to Hudhaifa b. Al Yaman after learning that Hudhaifa had married a Jewish woman:
“I command you to leave that woman as soon as you receive my letter because I fear that other Muslims will follow you by marrying the woman of Ahlul Dhimma because of their beauty. And that will be a fitna for Muslim women.” (Reported by Muhammad b. Al Hasan in his book ‘ Al Athar’.)

It is quite apparent that such marriages, especially that take place in western countries, create more harm than benefit. The children in such marriages usually lack an Islamic tarbiyyah. They usually take the culture and practice of their mothers, and may be totally lost between two cultures. If the marriage ends in divorce, the children will be left totally at the mercy of their non-Muslim mothers, with inevitable consequences for their faith and habits. There have been numerous cases of abduction by the aggrieved fathers who have taken their children to their countries of origin, hoping to give them an Islamic environment. This move is usually a failure as the mother will be supported by the authorities to return the children to her.

So in our opinion, such marriages should not be allowed as a means of a prevention of a greater harm.”

CHAPTER 5- ANCILLARY RELIEF AFTER DIVORCE.

Maintenance and Mahr.
Under Islamic Law, a father has a duty to maintain any children from the marriage. A daughter is to be maintained until she marries, and a son until he is able to earn his own livelihood.
If the couple owned a property together and the wife now wishes to live in the same house to bring up their young children there, there are a few options available to them. The market value of the house can be calculated and the respective shares of the couple can also be calculated in proportion to their contributions in the past. The wife can then buy her husband’s share so she owns the house completely. If she cannot afford to do so, the husband can allow her to live there while the children are growing up, as this will make issues such as schooling easier. If this also not possible, then the house can be sold and the couple can get their respective shares.

If a couple have not had a civil marriage in the UK and were only married in a Nikah ceremony, ancillary relief proceedings will not be available for the wife. However, she may be able to obtain her full Mahr with the help of the courts if she makes an application under Contract law. The Court will have to determine if the contract (a Nikah in this case) was binding, and the husband will then be required to honour the terms of a binding contract.

A deferred Mahr can also be considered to be part of a pre-nuptial agreement rather than part of the marriage contract, as Section 25 of the Matrimonial Causes Act 1973 allows for pre-nuptial agreements to be taken into consideration.

The law also allows individuals to make applications for the return of jewellery, personal possessions and property. The Court has the power to order the sale of disputed property and then divide the proceeds among the couple based on their past contributions.

If a Nikah-only marriage has taken place and it was legally valid in the country in which it took place, the marriage will be considered to be valid in the UK. If this marriage ends in divorce, the Courts will allow financial claims to be made just as if a civil marriage had taken place in the UK.

Inheritance.

Any children from the marriage are entitled to fixed Quranic shares as long as the parents have made their Wills. If however, a Muslim dies in the UK without leaving a Will, then the laws of Intestacy will apply. This may cause problems if the man was polygamous for example; the marriage of his first wife if it was registered in a civil ceremony will be recognised and she will inherit, but other wives will not. If the deceased leaves no surviving relatives and did not leave a Will, the entire estate will go to the Crown. As long as the Shariah-compliant Will fulfils the technical requirements of English law, the estate will be divided according to the wishes of the testator. The Islamic Shariah Council is often asked to assist in the drawing up of such Wills according to Quranic principles.


CHAPTER 6- CONVERSION OF A WOMAN TO ISLAM BEFORE HER HUSBAND AND ITS EFFECTS.

This matter has been discussed by both AMJA (The Assembly of Muslim Judges in America) and ECFR (European Council for Fatwa and Research). AMJA passed the following resolution:
“General belonging to Judaism or Christianity is what is required in women to be considered from the People of the Book. Marrying the chaste women of the People of the Book is valid with karaahah. However, this kind of marriage is risky, especially when considering the future of the children involved. Furthermore, the resolution clarifies the wives from the People of the Book possess the right to practice their religious rituals, and the right for her child’s custody until the age of seven, except in the case where this is deemed to cause harm to the creed of the child.
In the case of a wife’s embracement of Islam while the husband remains a non-Muslim, it is prohibited that these spouses have any sexual contact between themselves. The rights of the husband are pending throughout the Iddah. If he embraces Islam during this waiting period, then the previous marriage remains valid. However, if he chooses to remain on his creed, then the Muslim wife has the option to take the issue to the Muslim judge to annul their marriage contract, or to wait longer to give him a chance to come back to Islam so that they may return to their marital relationship.”
ECFR issued the following fatwa in this regard:
“We have made a study of all the papers and researches related to different aspects of this issue which were presented to the Council in three sessions consecutively, and have consulted all Fiqh opinions and their evidences in light of the principles of Fiqh and the objectives of Shariah. We now reiterate that a woman who has converted to Islam is not permitted to enter a fresh contract of marriage with a non-Muslim man. There is a consensus of the Ummah throughout the ages on this ruling. But in the case where the woman is already married to a non-Muslim husband and then she converts to Islam while he does not, the Council has resolved the following:
1-    If both spouses enter into Islam together and their relationship is not based on one of the prohibited degrees (such as a prohibition based on lineage or suckling), then their marriage remains valid.
2-    If the man embraces Islam while the woman is a kitabiyyah and there is no other impediment to their marriage, then their marriage remains valid.
3-    If a woman embraces Islam and her husband does not, the Council gives the following rulings:
i)    If she embraces Islam when the marriage has not yet been consummated, they have to separate immediately.
ii)    If she embraces Islam after the marriage has been consummated and the man accepts Islam during her Iddah period, they remain married to each other.
iii)    If she embraces Islam after the marriage has been consummated and her Iddah period has come to an end, she can wait for him to accept Islam, even though this may take a long time. When he does accept Islam, they do not need to renew their marriage but can continue as before. If she wishes to marry someone else after her Iddah has ended, she can apply to the courts to end her marriage.
4-    According to all four Sunni  schools of thought, it is not permitted for such a woman to remain with her non-Muslim husband after her Iddah has ended or to have any sexual relations with him. But according to some scholars, she may continue to live with him and enjoy marital relations as long as he does not stop her practising her faith and she feels he may one day be inspired to accept Islam. This opinion is concluded in order not to deter women who wish to enter Islam but are worried they will be forced to give up their families because of Islam.

This ruling is based on the judgement of Caliph Umar b. Al Khattab regarding a new Muslim woman in Al Hira whose husband did not enter Islam. Umar said, “If she chooses, she can leave him, and if she prefers to stay with him, she can do so.” This is an authentic narration on the authority of Yazid b. Abdullah Al Khatami.

This ruling is also based on a fatwa of Caliph Ali b. Abi Talib who said, “If a Jewish or Christian lady enters into Islam, her Jewish or Christian husband has a greater right to her as they have a covenant with us.” Similar opinions have also been attributed to Al Nakh’i, Al Sha’bi and Hammad b. Abi Sulaiman. Their discussions are based on the following:
1-    The following verses of Surah Al Mumtahanah:

O you who have believed, when the believing women come to you as emigrants, examine them. Allah is most knowing as to their faith. And if you know them to be believers, then do not return them to the disbelievers; they are not lawful [wives] for them, nor are they lawful [husbands] for them. But give the disbelievers what they have spent. And there is no blame upon you if you marry them when you have given them their due compensation. And hold not to marriage bonds with disbelieving women, but ask for what you have spent and let them ask for what they have spent. That is the judgement of Allah; He judges between you. And Allah is Knowing and Wise.
2-    A number of Companions such as Umar (RA) divorced their wives while they were still in Makkah after the revelation of these verses.
3-    If a Muslim woman does not re-marry but waits for her husband to return to her as a Muslim, she is permitted to do so. This is implied in the case of Zainab, daughter of the Prophet (saw) who migrated to Madinah while her non-Muslim husband Abu Al As b. Al Rabi’ remained in Makkah and even faught in the Battle of Badr with the pagans. He was taken captive by the Muslims but freed when Zainab paid his ransom. He returned to Makkah, and came to Madinah six years later to embrace Islam. According to authentic opinions, as narrated by Ibn Abbas, the Prophet (saw) allowed Zainab to continue marital life with him without contracting a fresh marriage.

The dissenting opinion mentioned in the fatwa of the Council comes from Sheikh Abdullah Al Judai’, who submitted his research paper on this topic. This was later published as a book entitled “Islam ahad al Zaujain”. He argues in favour of a newly-converted Muslim woman continuing to live with her husband and enjoying normal marital relations if she so wishes, even if her husband does not accept Islam. His concluding remarks are as follows:

1-    “There is no decisive evidence on this issue.
2-    There is no consensus on this issue either.
3-    All marriage contracts made before Islam are correct and valid after Islam. They cannot be invalidated except if clear impediments are found. Difference of religion is not an invalidating factor because there is no concrete evidence, and because of the difference of opinion in this issue.
4-    The evidences from the Book and Sunnah show clearly that the conversion of a woman to Islam does not disparage her faith in principle and does not affect marital relations.
5-    Marital relations do not become invalid because one party has converted to Islam.
6-    A huge number of people entered into Islam during the time of the Prophet (saw). There Is not a single example to suggest that the Prophet (saw) separated a man from his wife or vice versa because one of them had accepted Islam. And as in the case of Zainab, the contrary is true. Even after her migration to Madinah, her marriage to her non-Muslim husband remained valid until he too chose to move to Madinah and accept Islam.
7-    To argue in favour of nullifying marital life in the light of the verse of Surah Al Mumtahanah is not correct. The verse shows that such a marriage can be ended if one of the spouses is engaged in fighting the Muslims. The marriage does not end simply because they are non-Muslim.
8-    The verse under discussion implies there is no sin upon a migrant Muslim lady when she chooses to marry someone else if her husband is engaged in fighting the Muslims. However, it is not compulsory for her to do so, as is clear from the story of Zainab. It shows that her marriage to a non-Muslim husband is no longer a binding contract, but a permitted one, as she may face difficulties living with a man who is actively fighting the Muslims.
9-    The verse under discussion also implies that a Muslim man should not retain a non-believing wife if she does not migrate from a land of kufr to a land of Islam, and nor should he retain a wife who has left him to go and live with those non-Muslims fighting the Muslims. The wisdom behind this is to avoid any sympathy for those actively fighting the Muslims. It is to avoid the kind of conflict of interest that took place when Hatib b. Al Balta’a, a Muslim, wrote a letter to Makkan leaders in which he revealed military secrets of the Muslims in order to win favours for his relatives still living in Makkah.
The verse also implies that a new convert is free to marry someone else in order to escape the harm of living a celibate life.
10-    If one of the spouses enters Islam and the other spouse is not engaged in war against the Muslims, it is permitted for the couple to continue to live together. They cannot be separated just because of the difference in their religions. This was the practice concerning women who became Muslims in Makkah before the Hijrah and during the conquest of Makkah. Both Umar b. Al Khattab and Ali b. Abi Talib gave fatwas according to this without opposition.
11-    Should one of the spouses convert to Islam, the difference in religion is a valid reason to end the marriage, but it is not an obligation. This is implied by a judgement of Caliph Umar in which he did not receive any opposition from the Companions.
12-    All other opinions on this issue should not be considered preferable because they either go against authentically proven information or because of the weakness of the evidence or because of the weakness of the argument itself, or because of all these reasons put together.
13-    When newly-converted woman is permitted to live with her non-combatant husband, or vice versa, they are permitted to enjoy a normal marital life that includes sexual relations, as a harmonious marital life demands such a thing.”

These are opinions of Sheikh Abdullah Al Judai’. They are based on a different interpretation of the Quranic verses concerned as follows:

1-    Verse 221 of Surah Al Baqarah prevents a Muslim from marrying a non-Muslim. It does not speak of an existing marriage when one of the spouses has accepted Islam.
2-    Verses 10-11 of Surah Al Mumtahanah speak of an existing marriage where one of the spouses has entered Islam while the other is either at war with the Muslims or wishes to live with such people.
3-    As far as non-combatant Muslims are concerned, the Prophet (saw) permitted such marriages to continue if the couple so wished. Among such examples are:
i)    Atika bint Al Walid, who joined her husband Safwan b. Umayyah when he entered Islam after the Battle of Hunain.
ii)    Umm Hakim bint Al Harith who entered Islam on the day of the conquest of Makkah. Her husband Ikrimah b. Abi Jahl fled to Yemen. Umm Hakim followed him all the way to Yemen and there asked him to accept Islam. When he had accepted Islam, she brought him back to the Prophet (saw). We have no report to suggest that the Prophet (saw) invalidated their marriage.
iii)    Other similar stories are those of Shifa bint ‘Auf and her husband Makhrama b.Naufal,  Zainab bint Al Awwam who was married to Hakim b. Al HIzam, and Hind bint Utbah who was married to Abu Sufyan b. Al Harb.


CHAPTER 7- APPENDING AN ILLEGITIMATE CHILD.

This issue has been discussed in detail by Ibn Qudamah (d. 620 AH) in AlMughni, by Ibn Taimiyyah (d. 728 AH) in his Fatawa, and by Ibn Al Qayyiam (d.  ) in Zaad Al Ma’ad.  A summary of these opinions was presented by Dr Ahmad Al Salih to the 20th session of Islamic Fiqh Academy in Makkah in Dec 2010. I will present the rulings on this issue as concluded by the Sheikh and then provide the evidence for these rulings.
“A claimant is permitted to append an illegitimate child with the following conditions:
1-    The woman who bore the child should not have been the wife of another man at the time, in accordance with the saying of the Prophet (saw), “The child belongs to the bed (this refers to her husband and is a symbol for the marital bed) and stones for the fornicator.” ( Abu Dawood)
2-    The fornicator must admit to being the father of the child.
3-    Some scholars add a third condition, which is that “This type of appending should be declared by the judgement of a Qadi or a ruler.

Further issues regarding this include the following:
1-    If a woman is married to someone, the child will be attributed to her husband even if she conceived the child through adultery or other means.
i)    If the husband instigates the process of Li’an, accuses her of adultery and disowns the child, the marriage will be dissolved and the child will either be attributed to the mother or to her adulterous partner if his name is known.
ii)    The child will be attributed to the husband if he accuses his wife of adultery but does not disown the child.
2-    The child will not be attributed to the husband in situations where it is not possible for the woman to have conceived the child with him, such as if she gave birth to the child straight after the marriage or within six months of the marriage.
3-    The child cannot be attributed to a person who makes no claim to him at all.
4-    If another man claims paternity of the child when no other man claims the child and it is possible for him to have fathered a child of this age, then his claim will be considered to be legitimate.
5-    A child is appended to the claimant in cases of doubtful marriages, such as:
i)    A man marries a divorcee or a widow ignorant that she is still in her Iddah period.
ii)    A man has exhausted his right of divorce by divorcing his wife three times. Later he is told by a Mufti that his third divorce was invalid so he resumes marital relations with her. Any child born after this event will be appended to this man, even if he later learns that the fatwa was incorrect and he was really divorced.
iii)    This is also true of fasid (void) marriages such as temporary marriages and secret marriages.
6-    The major issue is that of a child born out of wedlock and his mother is not married to anyone at the time. Can such a child be appended to the fornicator?
i)    The majority of the scholars, from all schools of thought including the Zahiriyyah, are of the opinion that this child can only be attributed to his mother. He can never be appended to the fornicator in accordance with the hadith of the Prophet (saw): “…and stones to the fornicator” (ie, nothing).  Furthermore, the outcome of an evil cannot stand at a par with virtuous acts. The product of a Nikah cannot be the same as the product of fornication or adultery. It is reported that Umar b. Al Khattab used to append the products of Jahiliyyah to their biological fathers.
ii)    Another opinion is that such a child can be appended to the fornicator as long as he claims him and the woman was not married to someone else. This opinion is attributed to Hasan Al Basri, Ishaq b. Rahaway, Urwah b. Zubair, Sulaiman b. Yasar, Ibrahim Al Nakha’I and Imam Abu Hanifah. According to Imam Abu Hanifah, if a man fornicates with a woman who conceives from him and then he marries her to conceal the shame, the child will be appended to him. This opinion is also held by Ibn Taimiyyah and Ibn Al Qayyim.

This opinion is supported by the following evidence:
1-    To have legitimate paternity is the right of the child and should not be denied to him simply because of the actions of others. The Quran says,
“.. and no bearer of burdens will bear the burden of another.” (Surah Al An’am)
So why should a child suffer for a crime that he did not commit?
2-    The case of Li’an between Hilal b. Umayyah and his wife. After the procedure of Li’an had been completed, the Prophet (saw) said,
“If she delivers the child of such-and-such description, then he belongs to the man with whom she has been accused. And if she delivers a child with such-and-such description, then he belongs to her husband.” When she later delivered the child, it looked similar to the description of the man accused, so the Prophet (saw) said, “Had it not been for the oaths, I would have dealt with her in a different way.” This means that because she had taken an oath denying adultery, the child had to be appended to her husband. Otherwise it would have been appended to the woman, thus bringing shame and disgrace to her.
3-    It has been reported that Caliph Umar would append children born during Jahiliyyah to those who fathered them.
4-    The story of Jurayj, the Saint. The story is, in short, that a prostitute wished to have relations with Jurayj. He refused, but she later became pregnant after an affair with a local shepherd but then accused Jurayj being the father of her child. The local community was furious and destroyed Jurayj’s monastery. To prove his innocence, Jurayj first prayed to Allah, then walked up to the baby, prodded it in its belly and asked, “O child, who is your father?” The baby replied, “The shepherd.” Allah made this child speak from its cradle to absolve Jurayj and to expose the real father of the child.
5-    We can suggest by analogy that if a child can be appended to his adulterous mother, why can’t he be appended to his adulterous father, especially if the father is openly laying claim to the child. Ibn Al Qayyim has argued in favour of this analogy.

6-    It should be noted that appending an illegitimate child to his mother’s husband in order to safeguard the dignity of the child does not mean that the child will enjoy all the benefits of legitimacy. Rights will sometimes be awarded only partially. The child will carry the lineage of his ‘father’ and will have the right to be maintained by him, but he will not inherit. The proof for this is that Aisha reported that Utbah b. Abi Waqqas appointed his brother Sa’ad b. Abi Waqqas to obtain custody of his illegitimate child who had been born to a slave girl who belonged to Zam’a bin Al Aswad. However, Zam’a’s son Abd bin Zam’a also claimed custody on behalf of his father. He said, “He is my brother, a son of my father’s concubine who was born on his bed.”
Sa’d claimed, “He is my nephew, and his father took a pledge from me to take care of him.”
Both men came to the Prophet (saw) for a decision regarding the case. The Prophet (saw) listened to both claimants, then said, “The child is yours, O Abd Al Zam’a. The child belongs to the bed and for the adulterer is nothing but stones.”
Then the Prophet said to Zam’a’s daughter Sawda bint Zam’a, “Observe Hijab in his presence.” This was because of the child’s resemblance to Utbah. And so the child never saw Sawda until his dying day.”
This shows that although the child was appended to Zam’a, he was not allowed to be treated as a Mahram for Sawda, the daughter of his ‘father’.