SHIRIN MUSA draws on bitter experience to inspire her work to help women caught between legal and cultural worlds. Educated and long-resident in the Netherlands, she was unhappily married to a man from her native Pakistan. In 2009 a Dutch judge put a legal end to their union but her husband would not grant an Islamic divorce. Although she lived in secular Europe, this refusal mattered. If she remarried, she would be considered an adulteress under Islamic law and risk punishment if she returned to Pakistan.
So Ms Musa pursued her spouse through the Dutch courts. In 2010 she received a landmark judgment: he would be fined €250 ($295) a day, up to a maximum of €10,000 ($11,795), as long as he refused to cooperate. This had the desired effect. She then persuaded the Dutch parliament to make holding women in such “marital captivity” a criminal offence, in theory punishable by jail. Now she runs Femmes for Freedom, a charity that campaigns for people in similar situations. “I was lucky to be well-educated and have a supportive blood family,” she says. “Others are not.”
The Dutch law, in force since 2013, is an unusual effort to protect women in the West from rules made in harsher places. But in a transient world it is hard to seal one country’s legal and cultural norms from another’s. Under the basic principles of so-called private international law, courts in country A can enforce the legal norms of country B as they apply to people who are clearly from country B and to transactions which occurred in country B. This can have odd effects. Iranians who fled after the revolution in 1979 found 30 years later that German courts were adjudicating their marital affairs by the Islamic rules of their homeland. In most democracies, recognition of foreign codes is balanced by a countervailing principle. A judge can refuse to recognise, say, a child marriage contracted overseas if it offends “public order”.
Still, the risk of being trapped between systems is acute for those in transition from the Islamic world, which has detailed prescriptions for marriage, divorce, custody and inheritance, to Western countries where egalitarian, secular standards prevail. In classic Muslim thinking a man can renounce his wife unilaterally by pronouncing the word talaq on three occasions. The ex-wife keeps the mahr, the gift which the man gives her on marrying. For a woman, obtaining a divorce is far harder. She can start proceedings, with the help of an imam or Islamic authority, and this can lead to a khul’a or divorce by consent, though she may have to cede her mahr to make her husband agree. If he has behaved badly and refuses a termination, an Islamic judge can impose a faskh or judicial divorce. But getting this can be hard.
The situation for hundreds of thousands of Pakistani-descended women in England isin some ways worse than for those living in their homeland where only one, Islamic set of rules applies. That is thanks to an ever-growing habit among English Muslim couples: having an Islamic ceremony which is not registered with the British state. A recent survey of 1,000 married Muslim women by Britain’s Channel 4, a publicly owned broadcaster, found that 600 had religious-only unions.
Only a few imams in England are licensed as state registrars. In England, if the relationship breaks down, the financially weaker partner, usually the woman, is poorly placed to claim maintenance or a share of assets. (This is rarely an issue in Scotland, where many imams are registered as celebrants.) “If they had married Islamically back in Pakistan, that would have standing,” says Aina Khan, a lawyer and activist. A religious rite in Pakistan can ultimately gain recognition in England, but a religious-only union conducted in England can be the worst of all worlds.
A rite mess
England has an elaborate subculture where Islamic family law is practised. There are dozens of sharia councils, whose main work concerns appeals from women who want release from failed marriages. Ms Khan thinks these councils have burgeoned in an unhealthy way, in part because of English law’s inconsistent treatment of faiths. Anglican marriage includes the signing of a registry which makes the union official, and the state also acknowledges Jewish and Quaker ceremonies, but not automatically those of other creeds. A reformed law could either insist that unions of all kinds be registered civilly, as happens in France, or else it could give legal standing to the rites of popular faiths.
In the Netherlands it is illegal to conduct a religious ceremony unless a civil one has already been carried out. When Dutch judges adjudicate the affairs of Muslims who have married elsewhere, they can use a generic provision in the civil code against “wrongful acts” as a way of delivering judgments which seem humane in modern eyes. In practice, their rulings in Muslim marital matters usually favour women, says Eefje de Kroon, a Dutch human-rights campaigner.
For the 800,000 or so Muslims of Belgium, many of whom oscillate between there and Morocco, marrying is an obstacle course. In Belgium only civil marriages are valid. But the Moroccan state recognises only Islamic procedures, either in Morocco or one of its consulates. Without a religious marriage a couple cannot dispose of property or even share a bedroom in Morocco. Meanwhile, Belgian-Moroccans often feel the need to have a religious rite in Belgium, even though it has no legal status anywhere. Many couples do all three. Simply cohabiting is not an acceptable option, any more than it is for young Muslim couples growing up in east London or Marseille.
Yacob Mahi, one of Belgium’s best-known imams, says he tries to limit harm by refusing to conduct a religious ceremony unless the couple has already undergone a civil procedure. He also tries to ascertain if the marriage is abusive or forced. Yet despite the efforts of vigilant imams, people game the system. For example, a Belgian-Moroccan man can use a religious rite in Brussels to dignify a bigamous marriage which would be banned even in Morocco (unless the first wife had consented).
Spain is a rare European country where marriage in a mosque (or synagogue or church) enjoys state recognition. Germany used to insist on civil marriage for all couples before any spiritual rites. But from 2009 it has allowed religious-only marriages, in deference to newcomers from Muslim countries and Israel, another land where only religious nuptials count.
As they dodge between cultures and systems, the parameters for Muslims in Europe keep shifting. Morocco’s family law was modernised in 2004 and the knock-on effects are still emerging. But a complex reality is no argument for inequality of rights, and a forum exists where this should be sorted out. Whatever the fate of the continent’s other clubs, there is one institution, the Council of Europe, whose job is to uphold the rule of law and basic human rights across its 47 member states (28 of which belong to the EU).
Without trying to harmonise every piece of family law, the council could do useful work by pooling experience and elaborating some common standards to ensure that no European lives under a harsh marital regime through being born into the wrong religion, the wrong country or the wrong sex. That would feed through to other democracies, and perhaps to Islam’s heartland as well.