The Feeble Borderline between the British & USA Uniform Laws and Islamic Law

To illustrate the extent of the new difficulties faced in the field of law and multicultural policy in Britain, I discuss here a legal example, a recent litigation involving Bangladeshi Muslims before an English court. This case could well be the basis of a paper in its own right. This law case illustrates how very thin the boundary has now become between insisting on British uniformity and pushing for multicultural recognition. The unreported case of Ali v. Ali of 2000 (Such cases, albeit important for legal practice, remain systematically unreported, which looks like a strategy to decrease the visibility of such issues and to delay multicultural legal recognition processes. For some earlier cases, many of which were never reported, see Pearl (1986). The case of the missing one pound, as one may call it, encapsulates the dilemma of the British judiciary in new multicultural Britain.
The factual background to this litigation is that Mr. and Mrs. Ali, Bangladeshis settled in the UK, were both earning good salaries and could be described as successful young Asian professional individuals living in London. Since marriage is, especially for Muslims, an almost compulsory part of life, both parties (and more so their families, we must presume) began to look for suitable marriage partners. Mr. and Mrs. Ali seemed to match in terms of language and culture, social status and professional achievements, and marriage negotiations began to take a more serious form. It appears that Mrs. Alis mother wanted a dower or mahr of 50,000 for her daughter. Mr. Ali was initially only willing to offer 5,000 (The Muslim dower; variously spelt as mahr, mehr or mahar) is promised or given by the husband to the wife and could serve her as security against simply being divorced and left without means to maintain herself. However, many Muslim women are not in a position to negotiate a sufficiently high mahr to derive any benefit from this institution. It should not be confused with dowry, which is not just a Hindu practice, but is also known among Muslims and in other cultures. It involves, in the extreme, direct payments from the wifes family to the groom and his family).
This bargaining, was not over some kind of sale of the woman, but reflects a contest over the relative status and financial standing in society of all participants to these negotiations. Compared to traditional Bangladesh, the only major difference in this scenario is that the bargaining is over pounds or dollars now, rather than takas, and that there is a significant inflationary effect in Bangladesh itself, since the many Bangladeshi overseas migrants have driven upwards all rates of everything to do with marriage.
The main point of the Muslim mahr clearly is to provide the wife some financial security after divorce or the husbands death. In the classical Muslim law, there is an understanding that mahr should be divided into prompt and deferred dower, the first to be paid in connection with the consummation of the marriage, the deferred part being normally due on divorce or death (for details see Pearl and Menski 1998). In either case, this is an important financial security for the wife.
Mr. Ali eventually agreed to promise his future wife 30,001 as mahr, and this was duly entered in the marriage contract or between the parties, who had English registered wedding in London as well as a traditional Muslim marriage. The couple therefore followed the pattern of British Muslim law, where the couple make sure that they follow English law as well as the customary norms of their respective Muslim societies (Menski 2001).
However, this was a short-lived marriage, for many reasons. After a few months, Mr. Ali threw his wife out after a fight one night and soon went to court, seeking to terminate the marriage under English law as well. He was clearly in a rush to get rid of his wife. Mrs. Ali cross-petitioned the English court not to allow her husband to divorce her unless he had paid her any due financial entitlements, in particular the 30,001 of dower money. Under English law, I should explain, a professional woman in a short childless marriage would not even get 1 from the husband and would be expected to work, earn her own money, and rebuild her life. This is not the case under Muslim law, where men and women are not equal. The Muslim mahr is promised or given to the wife by the husband, as an integral part of the marriage contract, thus putting her in a potentially advantageous position if at the time of the marriage she (or someone else on her behalf) was strong enough to stand up for her rights and stipulated a high mahr.
In the High Court in London, the husbands defense was that the wifes claim was unreasonable and should be thrown out. First of all, Mr. Ali denied that he had already given his wife a talaq (Divorce), a Muslim divorce. Nevertheless, whatever he claimed, his action in approaching the English court for a divorce clearly amounted to divorce, and thus triggered off the wifes claim for her mahr. However hard the husband tried, he could not claim that his wife was divorcing him, which would have meant that she would have lost her claim to the dower.
Mr. Alis refusal to acknowledge his obligations under Muslim law pleased some English lawyers, who still expect that Asians and others will assimilate over time. Mr. Ali argued in essence that in England, only English law should be applied, and hence he urged the judge to ignore the wifes pleas for mahr because it involved Muslim law, which was only a matter of culture, but not of law. This would raise a question of what is law. One could start another lecture on this point alone, which would show that the multicultural scenario and experience of countries like Britain is making an immensely rich contribution to our postmodern understanding of what law is and cannot be (Menski 2000).
In Ali v. Ali, I have to stress that according to Muslim law there were two marriages, a Muslim nikah and an English registered marriage, and there were also two divorces, the Muslim talaq and the ongoing English divorce proceedings and consequently, there were two sets of financial arrangements that would need to be considered. While it was evident that under English law, the wife would not be entitled to significant financial relief, under Muslim law there was a contract to the effect that the husband would pay the wife 30,001 in the event of divorce.
Rather feebly, the husband tried to argue that such a high amount of mahr was forced upon him. A Muslim husband in this situation would naturally be quite reluctant to admit that he had been forced to agree to the demands of the wifes side. Mr. Ali elegantly explained this problem as a matter of social ranking, arguing that such high amounts of dower are publicly promised for the sake of status in society, with no intention that this kind of money should actually ever be paid.
Not surprisingly, the judge was a little confused. I insisted that if he did not consider the complete multicultural scenario, he would not only be doing injustice to the wife, but he would also damage the standing of English law, because he would drive Mrs. Ali straight into the office of one of Britains many Shari'aa Councils, virtual Muslim courts, which have an unofficial internal hierarchy. This clearly worried the learned judge, and the next day he gave Mrs. Ali the decision she wanted, holding that she was entitled to 30,000. But there is one pound missing! Why is that? And what is that we learn from this case about the general position in Britain today on immigration and multiculturalism?
The learned judge had clearly understood that he could not ignore Muslim law in this dispute. As an English judge working in the High Court at London, however, he could not just apply English law, because that would seriously disadvantage the Muslim wife and would mean a further contested matter before some sort of Muslim judicial forum. That had to be avoided as a matter of legal policy, which raises the question whether the judge was really helping the woman, or was he only protecting the state and supporting its claims to exclusive legal authority, in the sense that only state law is law?
Any decent book on jurisprudence tells us that law is much more than just state law. Here we are dealing with Muslim law, which vigorously claims to be dominant over various forms of state law. While recourse to Muslim dispute settlement could not be encouraged by the English judge, it also had to be avoided that an English judge just applies Muslim law as part of the law of the land. That would clearly go too far in terms of the adaptation of English law to the presence of well over one million (and perhaps almost two million) Muslims. Thus, the multicultural contest has come as close as that now: One little step further, and we have in Britain what modernists are so desperately arguing against, namely a legal system based on concurrent personal laws allocated on the basis of religion, as found almost everywhere in Asia and Africa, and certainly not just among Muslims.
If English law were to take account of Muslim law in this way, it would have to recognize other legal systems and personal laws as well. Indeed, there are many signs that this process is already fully under way. For example, in Chief Adjudication Officer v. Bath, 2000 [1] Family Law Reports, at page 8, the Court of Appeal recognized the claim of a Sikh widow that she was entitled to a widows pension, even though she had only been married in a London Sikh temple (gurudwara) 35 years earlier and had never registered her marriage under English law while her husband was alive.
Therefore, what precisely happened in Ali v. Ali, why is there a pound missing? The English judge, faced with this multicultural scenario, clearly refused to implement the detail of the Muslim contract of marriage and its consequences; otherwise, he would have awarded Mrs. Ali 30,001. By giving her 1 less, he applied not Muslim law, but asserted the application of English law, through the English law on equity, with its strong notions of justice and fairness. Thus, he not only helped the woman, but also protected English law from the unrelenting pressure to accept personal laws, such as that of the Muslims, as part of the new British legal framework. The missing 1 is a powerful indicator of how close the contest has become, and how well aware of this problem the English judges now are.
Among these judges there are, as yet, very few lawyers from ethnic minorities, but around 15% of newly qualifying lawyers in Britain in the past few years have been members of ethnic minorities, more than twice the percentage of their share in the population. Of course, not all of those proceed to practice law in the UK, but in times to come, and sooner rather than later, we will have many senior non-white English lawyers who are not English. Such pressures in various professional fields are now felt all over Europe and North America. For example, one could check the name lists of those who pass the professional accountancy exams in Britain, and the picture is remarkably similar. Instead of trying to understand all dimensions of these new processes, our common reaction has been to continue to argue over immigrant disadvantage and, at the same time, to barely disguise our jealousy of the new top layer of brown and black students and professionals.
Of course, none of this is restricted to the UK. Edwards (2002) reports on a recent case from New Jersey in which, allegedly for the first time, a US court held in the case of Odatalla v. Odatalla (FM-000366-01) that an agreement for an Islamic dower of one golden pound coin and $10,000 was acceptable under American law under neutral principles of law. This phraseology is just another attempt to circumscribe notions of justice and fairness, without applying Muslim law directly in a supposedly secular jurisdiction like the USA. The New Jersey judge accepted that here was a contractual agreement between two consenting adults, and thus gave Mrs. Odatalla the precise amount that was involved in the Muslim contract, in a way that the English judge in Ali v. Ali was not quite willing to do. It appears that US courts have much experience of such matters, but there is no clear policy emerging yet, like in Britain and other countries. Edwards (2002) reports that New York and Florida have accepted mahr arrangements as pre-nuptial agreements, while California has struck them down as being against public policy. Therefore, in the USA, too, a discussion is now under way about the changing relationship between the national courts and an increasingly multicultural and plural society.
ABOUT THE AUTHOR: Dr. Isameldin Elmahrogi
Lawyer (London - UK)
Attorney at Law & Commissioner for Oaths (Khartoum - Sudan)
International Immigration Law Consultant
Associate Lecturer (Faculty of Law - Open University of Sudan)