A Preliminary report on cases and procedures of the Islamic Sharia Council

by Prof. John Bowen

John Bowen, Dunbar-Van Cleve Professor of Arts & Sciences,
Washington University in St. Louis (USA) & London School of Economics
25th August 2010The Islamic Sharia Council began in 1982 as an attempt to provide Islamic answers to questions posed by UK Muslims. Today it operates from its office in Leyton, eastern London, and works with corresponding scholars in a number of cities around the UK, especially in the North. Scholars hold regular hours at the office to answer questions from Muslims (and, from time to time, non-Muslims) about a range of topics. Most of its work concerns requests for Islamic divorces brought by women. The ISC publishes the procedures to be followed in these cases on its web site, and it can track the progress of any particular case on its computer data base. According to its own statistics, it dealt with 1,500 cases during the period 1982-1995, 3,000 in 1996-2002, and 1,500 in 2003-2005. Since 28 July 2006, when the file log was computerised, it has logged in 2581 cases. These cases are Islamic divorce requests, mainly brought by women.
In Islam, a husband may divorce his wife by saying ‘I divorce you’. He may reconcile with her within a certain period, and repeat this action at a later time, but after three such divorces, the couple are divorced finally. (Some controversy surrounds the question of whether the three utterances of the talaq phrase must be separated by lengthy periods of time; the Council argues that to count as three instances, in most cases they do.) Performing the talaq does not require the intervention of a judge or scholar, but men may, and sometimes do, ask the Council to issue a divorce certificate.
A wife may approach a judge, in this case a scholar in the Council, and ask for her marriage to be dissolved. In many cases, the Council asks the husband if he would sign a talaq certificate (talaq nama); if he does so then the Council need take no action. He may have conditions, such as the return of mahr already given to his wife at marriage, and then the Council plays a mediating role. In these cases it is the husband who freely decides to divorce, and who does divorce, and this action is referred to as a khulla’, a divorce by the husband at the request of the wife, and often with a payment from her to him.
This leaves the majority of cases facing the Council, where the wife has asked for her marriage to be dissolved, and the husband either refuses to take action himself or fails to answer the Council’s letters. In these cases the Council may decide to dissolve the marriage. A dissolution, or faskh, may be unconditional, or it may be conditional upon the wife returning mahr given to her at the marriage. On its forms, the Council calls the first kind of dissolution faskh and the second kind a khulla/faskh, what we could define as a ‘judicial dissolution of a marriage with return of mahr’. There is an ongoing discussion among scholars on the Council as to whether, and under what conditions, jewellery given at or around the time of marriage should be returned as well.
The scholars serving on the Council claim legitimacy to do take such actions based on the argument that in lands without an Islamic legal system, scholars learned in Islamic jurisprudence have a responsibility to provide this service. The scholars currently on the Council come from a variety of countries, have all lived for a long time in England, and represent a diversity of points of view on questions of fiqh, or Islamic jurisprudence.
But the ISC does not only issue divorces, it also invites Muslims to pose questions and seek advice. During ISC office hours, several scholars take appointments and sometimes walk-ins from people with questions about their personal lives and, very often, the status of their marriages. A case file is only opened when someone makes a request to the Council in writing, usually to request an Islamic divorce. (The Council makes clear that they do not grant civil divorces, and that for marriages conducted overseas and marriages registered in the UK, persons wishing to divorce must do so through the English courts or in the country where the marriage took place.)
The petitioner’s request leads her (or less often him) to be sent or given the appropriate application. Both parties will over time be directed to respond to a prescribed sequence of letters from the Council. These ask for additional information, or ask the petitioner to provide proof of the couple’s separation, or ask that one or both appear for an interview. Sometimes, the petitioner fails to respond to one or more of these directions or decides to stop the proceedings. The result is a delayed process, or a ‘dead’ file. In some cases, parties seek to re-start their cases months or years later. The file contains all the correspondence between ISC members and the parties to the case, with running notes on the file folder concerning letters sent. Files are numbered in sequential order and filed accordingly, facilitating the consultation of a case several years later. The Council has complete files only from 1997.
Only if the Council manager considers that sufficient information has been gathered does the case pass to the next stage, that of collegial deliberation. These formal sessions occur either at the monthly meetings held at the Islamic Cultural Centre at Regent’s Park, or at smaller ‘mini-meetings’ held from time to time at the ISC office. At the larger meetings, ISC members who live elsewhere come to London and participate, as do imams at the London Central Mosque. The results of the deliberations are recorded in the ISC register and communicated to the parties.
ISC procedures emphasize direct written communication between the Council and each of the two parties to the divorce case. Sometimes the Council will encourage a party to respond through their solicitor (for example, to verify that a civil divorce proceeding has begun), but the Council tries to practice direct communication with the parties concerned; at times solicitors express frustration with this practice but it is based on Islamic principles. The parties are expected to respond to the ISC’s letters before a subsequent step is taken, a procedural rule which allows a couple to engage in mediation or reconciliation, but which also can lengthen the time between initial filing and awarding of a divorce. However, this procedural rule resembles that followed in a civil divorce.
What are women’s reasons for requesting a divorce? A rough tabulation was made of the major reasons women petitioners advance for divorce in 178 cases. 63 cases, the largest category, involve claims that ‘the marriage has broken down’ because of irreconcilable differences, separation, or desertion. 10 additional cases had claims that the husband failed to provide material support. In 40 cases the women emphasized violence and abuse, and in 23 cases she said that her marriage was forced. 10 cases involved a marriage ‘only to get a visa’. 10 cases emphasized factors that could be considered mainly ethical and Islamic, including adultery and drinking, behaviours that were not in violation of English law but contradicted Islamic and broadly ethical principles. In this category also are cases where there was a flaw in the Islamic marriage, such as non-consummation. Of course, most women mentioned more than one problem in their marriage, and when there is a letter or interview in the file a wide range of husband’s faults are apparent. For this simple tabulation I chose the initial charge levied by the woman. And we should remember that in many, if not most cases these charges were difficult to verify; the list relies entirely on the woman’s claims.
The time elapsed between filing and a decision is highly variable, for certain quite understandable reasons: the petitioner may respond quickly or not; the couple may try to reconcile in the middle of the process, the husband may stall, or be unavailable. The figures from a sample of 80 cases on which the Council made a formal decision during 2007-2010 give a sense of the wide range of time to decision. The delays fall into three clusters. 34 cases were decided in 6-8 months, 32 cases were decided in 10-19 months, and 9 cases were decided over much longer periods, from 23 to 41 months. (5 cases had missing data.)
Resolving the case takes longer when more complex issues arise, when the husband disputes the claims made by his wife, or when there are children. Disputes over repayment of marriage goods can also prolong the process.
Six months is a fairly short time to complete the procedures, quite comparable to an uncomplicated civil divorce procedure. Here are two cases where the time to decision was about six months. In the first case, a woman living in the London area approaches the Council for a divorce, claiming that she was coerced into a marriage with a man living in South Asia in order to help him get a visa for the UK, and without her father’s knowledge. At the Council’s request she provides an affidavit from her father, and 5 months after beginning the process, she obtains a divorce on grounds that she did not have her guardian’s consent. The Islamic grounds for the decision were clear and were supported by this sworn statement, so the decision was easy to reach.
In a second example, the wife obtained her Islamic divorce 6 months after the file was opened. She and her husband had been born in England, they had three children, and she already had obtained a civil divorce, on grounds of adultery. The civil divorce already secured, and the grounds of adultery uncontested, the scholars saw little reason to prolong the Islamic marriage.
Other cases take longer, for many reasons. Sometimes the husband replies to the wife’s charges and the Council tries to ascertain whose position is stronger. They may wish to allow them time to reconcile their problems. In one case, the couple have been separated for 3 years but remain married Islamically, and they never registered their marriage in England. She says the marriage has broken down, but he says otherwise. They have 2 young children. They come for a joint meeting with one of the scholars. The Council asks her to give an assurance that he will be able to see their children, and the Council then dissolves their marriage, 16 months after the process began. In this case, the scholars want to make sure that the marriage truly has broken down before ending it, and were aware of the damage divorce can do to children. The scholars try to balance ‘benefit and harm’, and doing so may take time.
Often the longer procedures occur because the Council asks one or the other parties to come for a meeting, and this proves difficult—one or both live far away, or postpones the meeting, or simply refuses to come. Usually the Council asks the husband to take the action of granting his wife a divorce, and he may delay his answer. The Council may ask the wife to provide an affidavit that she and her husband have been separate for at least one year, or that she will let the father see their children. Very frequently, delays come from the unwillingness of the husband to respond to letters. The Council sends three letters to him, asking for his opinion on the matters in question, and if the letters meet with no response, then they ask the wife to try and verify his address in one way or another—much as does the English civil court. It may take many months to either produce a response from the husband or decide that they must proceed without him. A concern with procedural fairness is at work here.
We can look at the files in a different way, starting not with decisions but with the opening of a file and then asking what became of each case. I compared the ‘input-output’ relation for two samples 10 years apart. The 1997 sample consists of 38 cases; the 2007 sample has 44 cases. For each sample I started with a particular file and then examined every subsequent file, whether or not the process led to a decision. This process leaves us with two continuous periods of case filings.
Several differences appear between the two samples. The 1997 sample includes 38 files out of a number sequence of 108 numbers, meaning that there were 70 numbers that dropped out of the sequence. These gaps occurred at a time when the files were not entered into a computer data base, so it is difficult to ascertain the reasons for the gaps; perhaps a folder was opened in the case of simple inquiries to someone at the Council. Of those 38 files, 19 led to decisions being taken, 14 of which were the granting of a divorce; in the remaining 5 cases the scholars asked for additional information, which apparently was not provided. What of the remainder of the 38 files? Often they consist of two sheets of paper, a letter addressed to the council, and a letter from the ISC asking the petitioner to fill out the form. Evidently in those cases the petitioners decided to go no farther, for whatever reason.
The 2007 sample includes 44 files out of 55 numbers, and of those 44 files, 34 lead to decisions, of which 29 divorce decrees. So once a file has been opened it is more likely to lead to a decision in recent years than in the earlier period. 34 of 44 cases begun in 2007 led to decision, as compared with 19 of 38 cases in 1997. This difference suggests a marked improvement in the steps taken following the initial contact of the office. The reasons for this improvement are beyond the scope of this report, but probably include an improvement in record-keeping and follow-up.
Of a sample of 85 cases decided over the period 2007-2010, we can see something about the histories of the wives and husbands who approach the Council. Most of the women and the men involved in the cases were born in Pakistan or Bangladesh or are of South Asian ancestry; Somalia provides the next largest category of petitioners. The women are much more likely to be born in the UK than are their husbands: 36 (42%) women compared to 17 (20%) men. 64 of the women are British citizens but only 35 of the men. And 83 of the women are UK residents, compared to 54 of the men.
These figures allow us to paint an overall picture of the ‘modal’ (typical) people who use the Council: women living in the UK (almost always in England), mainly British citizens of Pakistani or Bangladeshi origin (by birth or ancestry), asking to be divorced from men who probably were born abroad and might still live abroad. In a considerable number of these cases, a woman living in the UK travels to Pakistan or Bangladesh and there marries a local man, whether on her initiative or on that of members of her family. As we saw above, a certain number of women petitioners say they were forced to marry; in other cases the marriage was arranged between families but with her consent. (The files do not allow one to give precise figures regarding degrees of consent.)
In their deliberations, the scholars on the Council consider whether the marriage has irremediably broken down (which may lead them to grant a divorce), whether there are children (which may lead them to seek assurances that the father will be able to see the children), and whether there is documented fault on the part of the husband, such as a court order against him or a jail term on drug charges. Although the scholars weigh the versions of events provided by the man and those provided by the woman, they are not a court and have no subpoena powers, and usually do not see the husband. Moreover, they do not need to engage in a long process of fact-finding, as in a trial, for if they can assure themselves that the marriage is over and that the father’s rights and children’s rights are considered, these grounds may be sufficient to dissolve the marriage.