Finding an End to Marriage in Both Civil and Sharia Law; the Bigger Picture Couples Who Want to Divorce Have to Go for Mediation before Going through the Courts. Muslims Are Increasingly Expecting State-Funded Mediators to Help Them Find a Settlement in Keeping with Islamic Law. Jo Ind Reports

Article excerpt

Byline: Jo Ind reports

Rehana is a Birmingham Muslim who wants to divorce. Her husband, Abbas, refuses to grant her one.

As a British citizen, Rehana has the right to go through the divorce courts like anyone else and get her marriage dissolved anyway.

But she is a faithful Muslim and that is not enough for her.

She also wants a divorce that is in keeping with Islam so she is free to enter into another Muslim marriage.

Without a sharia divorce being granted by her husband, she fears being left in a paralysing limbo - divorced in the eyes of the state, married in the eyes of her religion.

What is she to do?

That scenario, and others like it, are common at Birmingham District Family Mediation (BDFM), an organisation which helps people resolve their marital disputes before going to court.

The Archbishop of Canterbury caused controversy this year when he said it was unavoidable that the UK would adopt sharia law to help Muslims resolve certain situations in an Islamic way.

In fact, family courts and mediators have been taking sharia considerations into account in divorce settlements for more than a decade.

Since the Family Law Act of 1996, all couples who want to divorce have to go for mediation first.

The idea is that couples come to an agreement between themselves which is then finalised in court, rather than fight it out through lawyers in a way that is unnecessarily expensive and adversarial.

The Government pays for this service for those who are not able to afford it themselves. Approximately 70 per cent of BDFM clients are publicly-funded. Almost one third of them are Muslim.

John Akers, who has been a mediator for more than 20 years, says: "The purpose of mediation is to help people come to their own solutions. It is not for me or for the courts to say what is and isn't fair.

"There are some things that the courts won't accept. If a couple decide that the woman should look after the children and the man won't pay her any maintenance or give her any capital, then the courts will say: 'This is no good.'

"But within reason, the principle in British law is that the court endorses what the couple have agreed.

"That means that if the couple want a divorce in keeping with sharia law, then that has to be taken into account in mediation and before the courts."

The scenario where the wife wants a sharia divorce but the husband will not grant her one, comes up often in mediation.

But what does the sharia, which in Arabic literally means a path that leads camels to a watering place, really have to say about divorce?

The Birmingham Post took three of the most common scenarios that are presented at BDFM to a sharia expert in marriage and divorce.

Dr Wagiha Seyda sits on the Shariah Council at Birmingham Central Mosque and is the key advisor in all divorce proceedings.

She has worked as a counsellor at the family support clinic at Birmingham Central Mosque for the past twelve years.

A retired paediatrician, she has studied Islam at Birmingham University and made marriage and divorce in Birmingham's inner city Muslim community the subject of her MA thesis.

So what does she say the Koran says about the cases that are most commonly presented at BDFM?

Scenario One

The wife wants a sharia divorce. The husband will not divorce her.

Dr Seyda says: "For a start, if the marriage has broken down irretrievably and mediation has not worked, the couple have to have a civic divorce.

"You can not have a sharia divorce instead of a civic one.

"In the Koran it says you have to abide by the law of the land in which you are living.

"Of course you have to do that in an Islamic country, but even in a country that is not Islamic, that is what you have to do.

"Even if they were married Islamically in another country, and the Home Office in this country has accepted their marriage, they still have to have a civic divorce. …