Vardags Family Law Essay competition 2024/25 | Molly Mullan Haslam

Balancing Cultural Sensitivity between Islamic Traditions and Family Law Standards in the UK

Author: Molly Mullan Haslam - Trinity College, Dublin

Introduction

The family law system in the United Kingdom (UK) endeavours to resolve disputes within family units with emphasis on minimising the disruption to those involved. Governing statutes such as the Children Act 1989, Matrimonial Causes Act 1973, and the Family Law Act 1996 endeavour to regulate legal issues involved family relationships while prioritising the welfare of the child. (1) Family structures in the UK are dictated by its myriad of cultures and the country’s diversity continues to grow. According to the most recent census data, ethnic minorities make up a significant portion of the UK’s population especially in urban areas like London, Birmingham, and Manchester. The Muslim population, in particular, contributes to 3.87 million, or 6.5 % of the total population in the UK. (2) Multiculturalism is a defining strength of the UK and should be celebrated, as it has shaped the nation into what it is today. However, the diverse cultural, religious, and ethnic traditions within its society form unique family structures and legal expectations, which can significantly influence family law cases. The societal complexity between Islam’s Sharia law and the UK’s statutory law requires a balance between respecting cultural traditions and upholding legal standards that prioritise individual rights and child welfare.

The Role of Cultural Sensitivity

Cultural sensitivity refers to the awareness, understanding, and respect for the beliefs, values, and traditions of different cultural, ethnic, and religious groups. (3) It is integral to understand how cultural background shapes individuals’ perspectives, behaviours, and expectations, and impacts social and legal contexts. The impact of cultural sensitivity is pertinent to ensure fair and equitable outcomes; the facilitation of effective communication; the respect of religious and cultural practices; and, above all, protecting vulnerable individuals.

Legal Standards and the Limits of Cultural Accommodation

There are several non-negotiable principles in UK family law. These principles apply universally and uphold justice, equality, and human rights. For example, gender equality is a cornerstone of equity in the United Kingdom. Courts do not recognise practices where one gender is advantageous over the other. Both men and women have equal rights in marriage, divorce, child custody, and inheritance. In the case of Owens v Owens, a woman filed for divorce and was rejected due to her husband’s lack of consent to the petition. (4) This case encouraged the practice of no-fault divorces and ultimately led to the Divorce, Dissolution and Separation Act 2020. The UK does not ignore issues of children’s welfare. Relying on the core of the Children’s Act 1989, Re B (A Child) solidified the fact that a child’s welfare should override parental rights in certain circumstances, even if cultural norms exist. (5) The UK sets legal boundaries in relation to protection from abuse, forced marriage, and other harmful practices. With the introduction of the Domestic Abuse Act 2021 strengthened protection against physical, emotional, sexual, financial, and coercive abuse. (6) Additionally, the Forced Marriage (Civil Protection) Act 2007 made forced marriage illegal. This is demonstrated in Re K where the court intervened to prevent a child from being taken from the UK abroad for a forced marriage. (7) Additionally, legal aid in domestic abuse cases emphasises the UK’s emphasis in ensuring everyone has the right to legal representation. Finally, while religious laws such as Sharia, Halacha, and Hindu personal laws may guide personal beliefs, they do not have legal authority in the UK. Any private arbitration elicited through these councils must comply with UK legal principles. (8)

Authorities such as the European Convention on Human Rights (ECHR) play a crucial role in maintaining a balance between respect of cultural traditions and the legal obligation of upholding fundamental human rights. Article 8 ECHR maintains to protect an individual’s right to family life and identity. However, to protect the rights of others, this right is not absolute. (9) Under the Children Act 1989, the state can intervene if harmful practices under cultural customs are being used to raise children, such as FGM (10) or excessive discipline. (11) Additionally, Article 9 ECHR upholds freedom of thought, conscience, and religion; though, this freedom is limited if it conflicts with UK law such as gender equality. (12) For example, a Muslim woman seeking Talaq (13) cannot be denied her right to a civil divorce under UK law even if her religious rulings reject her submission. (14) Article 12 guarantees the right to marry but allows states to set legal conditions. Under the Anti-Social Behaviour Crime and Policing Act 2014, UK law criminalises forced marriage. (15) Courts can also issue Forced Marriage Protection Orders (FMPOs) to prevent coercision into marriage. (16) Finally, Article 14 ensures equal treatment under the law, regardless of gender, race, religion, or cultural background. (17) Beause of this, UK courts do not enforce religious inheritance laws, such as Islamic inheritance rules favouring male heirs, if they contradict principles of fairness and non-discrimination.

Case Study: Sharia Law and UK Family Law

An example of balancing cultural sensitivity and legal standards exists in regulating and overseeing Sharia councils. Sharia councils are informal advisory bodies that provide religious guidance in matters of divorce, marriage, and family issues in Muslim communities. (18) Functions of the Sharia councils involve, islamic divorce, marriage dissolution, and child custody. However, there are concerns in the UK about gender inequality in Sharia tribunals. (19) Talaq is the men’s route to divorce and Khula is the women’s route to divorce. (20) Talaq is obtained easily while Khula often faces delays, conditions, or financial compensation to their husband. Aina Khan QC found that many Muslim women in the UK are trapped in Nikah (religious only marriages) due to lack of civil marriage registration. (21) Islamic marriages (Nikah) held in the UK are not legally valid unless they comply with statutory requirements by registering under civil law. This precedent was hear in 2018 under the case of Akhter v Khan. The High Court ruled that the Islamic Nikah marriage did not constitute legal marriage in the UK, preventing the wife from seeking financial settlement under divorce law. (22) Many women have no legal claim to financial assets and victims of abuse face pressure to remain in the marriage. However, where possible, UK courts have intervened in cases where gender equality laws have been violated. In Re AI and MT, the family court recognised civil divorce and prevented further coercision by the Sharia tribunal to stay in her marriage despite domestic abuse claims. (23) After the Home Office Review in 2018, the government proposed encouraging mandatory civil marriage registration to ensure legal protections for women. (24) Finally, the Arbritration and Mediation Services (Equality) Bill was proposed to prevent religious tribunals from overriding women’s rights in the UK. Some politicians argue that Sharia councils should be abolished as they operate as parallel legal systems. (25)

Striking a Balance: Potential Reforms and International Practices

As the UK continues to embrace cultural diversity, family law reforms must address inequalities in religious tribunals, improving legal awareness, and enhancing mediation practices to help achieve this balance. A necessary introduction of formal legal oversight in the form of mandatory registration and transparency for religious tribunals, coupled with the cooperation of standardised procedures to protect vulnerable people in cases of divorce and child custody should be at the forefront of potential reforms. Furthermore, within the realm of contradicting UK gender equality laws by delaying Khula for women, Norway sets an international example by requiring all religious arbritration bodies to follow strict gender-equality rules in decision-making. (26) Finally, providing awareness of legal rights, especially for women in Nikah, (27) could eliminate the fear of cultural backlash or stigma from seeking legal help. Australia runs a government-supported legal literacy program for minority communities to understand their rights in family law. (28) Facilitating legal aid clinics in Mosques and community centers around the UK to dicuss civil versus religious marriage rights, legal implications of unregistered marriages, and legal protections against forced marriage, domestic abuse, and discrimination is necessary to tackle this issue.

Conclusion

Legal standards such as gender equality, child welfare, and protection from discrimination remain non-negotiable principles in UK law. Ensuring a balance between fairness, inclusivity, and respect for diverse traditions within the realm of cultural sensitivity presents a nuanced challenge when religious or cultural practices conflict with legal protections. To navigate these complexities, continued dialogue, legal reforms, and community engagement are pinnacle. Looking forward, as multiculturalism continues to shape society, family law must adapt to evolving social realities while safeguarding human rights.

footnotes

(1) Children Act 1989 c. 41.

(2) Muslim Council of Britain, ‘As UK Population Grows, So Do British Muslim Communities’, (MCB, 2022).

(3) Babel et al., ‘Cultural Sensitivity and Ethical Considerations’, (PMC, 2022).

(4) [2018] UKSC 41.

(5) [2009] UKSC 5.

(6) Home Office, ‘Domestic Abuse Act 2021: overarching factsheet’, (Gov, 2024).

(7) (Forced Marriage: Passport Order) [2020] EWCA Civ 190.

(8) Ahmed and Norton, ‘Evidence on Sharia Councils’, (UK Parliament).

(9) European Convention on Human Rights 1950, Art 8.

(10) Female genital mutilation.

(11) Ibid n1.

(12) European Convention on Human Rights 1950, Art 9.

(13) Sharia divorce.

(14) Ibid n8.

(15) 2014 c. 12.

(16) HM Courts & Tribunals Service, ‘Forced marriage protection orders’, (Gov, 2020).

(17) European Convention on Human Rights 1950, Art 14.

(18) Ibid n8.

(19) Ibid.

(20) Alexander Rose Solicitors, ‘Islamic Divorce’.

(21) Khan, ‘Unregistered Marriages: A Muslim Concern’, (Seekers Guidance, 2015).

(22) [2020] EWCA 122.

(23) [2013] EWHC 100 (Fam).

(24) Sherwood, ‘Register Islamic marriages under civil law, sharia review says’, (Guardian, 2018).

(25) Arbitration and Mediation Services (Equality) Bill [HL], 2017.

(26) ‘Norway to strengthen international efforts to support women’s rights and gender equality’, (NO Gov, 2023)

(27) Unregistered Islamic marriages

(28) Family Law Council, ‘Improving The Family Law System For Clients From Culturally and Linguistically Diverse Backgrounds’, (Commonwealth of Australia, 2012).