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.
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. She can get that.
“But she needs a sharia divorce too.
“Without that she is in a state of limbo as he can claim that under Islamic law she is still his wife.
“If the marriage has broken down irretrievably she can get a sharia divorce.
“In Islam there are two types of divorce. One is called talaq, which is where the man divorces his wife.
“He can do that by saying: ‘I divorce you’ three times in the presence of two witnesses so long as it is not during her menstrual period.
“There is also a divorce known as khula, which is where the woman initiates the procedure.
“In a khula divorce the wife has to give back to her husband the dower (money or property brought by a woman to her husband at marriage) that was paid at the time of the marriage, often in the form of gold jewellery, if the husband demands it.
“This couple is wrong in thinking that the woman can not divorce the man. She can get a khula, even if he is not willing.
“Once she has signed the paper for her divorce, the divorce is granted even without his assent.”
* Scenario Two
A couple want to divorce but cannot agree financial arrangements. The man is prepared to pay rent on the home of his soon-to-be-ex-wife. He is not prepared to give her any capital.
He says he cannot afford to give money to charity while he is alive, so his intention is for the proceeds of his house to be given to Islam upon his death. If he does not give what his religion says should to be given to charity when he dies, he fears going to Hell.
Dr Seyda says: “This is entirely wrong. There is nowhere in the Koran that says you should not share assets with your wife. On the contrary, it says never leave her empty handed. He is just making an excuse. Charity starts at home in Islam. First you provide for your wife and children.
“The next people are your mother and father. The third people you provide for are other family members if they are not fortunate enough to have their daily bread.
“Only after that do you give to charity. Giving to charity is voluntary. Your duties as a husband are not.
“Besides, the prophet says you have to abide by the law of the land. No court in this land would accept a divorce settlement in which she did not get her share of the assets. She is entitled to half.
“It sounds to me as though he just doesn’t want to spend any money on her.”
* Scenario Three
Two brothers have married two sisters, their first cousins. They are peacefully married, but their fathers, who are brothers, have fallen out with each other. This has caused a rupture in the family and there is pressure on the sons to divorce their wives.
Dr Seyda says: “Two marriages in the same family are not advised in Islam. It happens because of tradition.
“In Birmingham most of the Muslims are from Mirpur in Pakistan. They came over when they lost their homes in the mid 60s to make way for the Mangla Dam.
“They see marriage as a way of bringing other members of their family over, get them settled here and raise their financial status. They think they are helping their families. But the prophet advised the Muslim community marry outside family. He approved of marrying outside family as a way of spreading Islam.
“It is better to marry outside the family because if one marriage suffers and the other marriages are within the same family, then the other marriages suffer too.
“It has now been proven medically that if you marry outside your family, your offspring have an IQ which is 15 per cent higher than if you do.
“In this situation, if two people are happily married, a third party is not allowed to intervene. They cannot be pressurised into getting a divorce.
“No matter what sort of problems they are facing, so long as they face the problems themselves, no one else should have a say in it.”
* If you would like to make an appointment to see Dr Seyda contact Birmingham Central Mosque on 0121 440 5355 for details of her clinic.
* Contact Birmingham and District Family Mediation Service at www.bdfm.org.uk or 0121 233 1999.
* Next week The Birmingham Post reveals details of Dr Seyda’s research into what makes a happy Muslim marriage.