Marriage

Chapter 3
Marriage

Perceptions of Minority Families

Public debate about family life in the UK has long been characterized by moral panic – divorce, teenage pregnancies, youthful antisocial behaviour, the abuse of children and same-sex partnerships. For several reasons, however, minority families are thought particularly problematic, even if they are not alone; indeed across Europe they are a ‘true obsession’ (Balibar 2004). They are, for example, deemed instrumental in the evasion of immigration controls: family reunification policies provide for admission to Europe, but there is widespread belief that they are used illicitly, with transcontinental arranged marriages portrayed as ‘sham’ marriages of convenience (Knights 2007; Wray 2006). Minority families are further said to impose unacceptable burdens on health and welfare provision, schools and housing, and are suspected of a key role in the ‘failure to integrate’, sustaining enclaves in which children are oriented to ‘other’ worlds, with beliefs and practices deemed unacceptable in contemporary societies which espouse liberal, democratic, egalitarian, individualistic values. Two contrasting examples illustrate how the moral order of the minority family is believed at odds with that embodied by the supposed ‘European’ family.

‘These brainwashed young men threatening us’, said journalist Muriel Gray (2006), ‘are not coming from liberal, Westernized homes full of moral relativism and then suddenly turning psycho’. ‘If they come from observant Muslim families’, she continued,

they would have been brought up to genuinely believe that Allah intended women to have a single purpose in life as subservient wives and mothers; gay people are perverts; freedom of speech does not apply to any kind of criticism of their belief; democracy is a man-made sham; and the values of the West are inferior.

Such views represent a commonly held stereotype of the ‘Asian’ (particularly ‘Muslim’ family) found in Britain and elsewhere in Europe: ‘All families are extended, children respect their elders, religious faith is total and unquestioning, and women are veiled creatures living in the shadows’ (Ali 1992: 109). They have too much family: close-knit, with excessive emphasis on parental, specifically paternal/patriarchal control. People of African Caribbean origin are, by contrast, seen (stereotypically) as coming from communities characterized by absent fathers, academic failure, out-of-control children, drugs, gangs and gun-crime; in other words, where there is too little family (Grillo 2011).

If popular representations see Islam as instrumental in the oppression of women and children, denying their autonomy, there is, nonetheless, a degree of ambivalence about what is also seen as a commitment to family values. If the Muslim family is a cornerstone of patriarchy and parallel lives and an obstacle to integration, it is also commendable in the light of the prevailing moral disorder. Thus David Cameron, then Conservative opposition leader, praised such families as ‘incredibly strong and cohesive [with] a sense of civic responsibility which puts the rest of us to shame’.1 This is not just an outsider’s view; the following advice is widely cited on Muslim websites:

Family is the bedrock, cradle of human civilization. It is the foundation and basis of Muslim society … The Islamic family system brings the rights of the husband, wife, children, and relatives into a fine equilibrium. It nourishes unselfish behaviour, generosity, and love within the framework of a well-organized family system. The peace and security offered by a stable family unit is greatly valued by Islam, and it is seen as essential for the spiritual growth of its members. A harmonious social order is created by the existence of extended families and by treasuring children.²

A common perception among (male, British) Muslims is that the close-knit family is a ‘haven of spiritual and moral safety from the perceived assault of British society and its unwelcome values’ (Ansari 2004: 253), and the ‘traditional idealized’ Muslim family (Husain and O’Brien 2000) grounded in Shari’a principles, and bound by notions of honour and shame, is contrasted with the dysfunctional white British family whose ‘thinking is different’:

We think in terms of holding our family together. We are always thinking about what is good for our families, they always think of themselves and their personal freedom. We always consider our family reputation/name before we act. Like that, they are more free thinking. The women are more liberal than our women (informant quoted in Beishon et al. 1998: 56).

These views, revealing elements of both ‘Orientalism’, and ‘Occidentalism’, are not completely misleading. ‘The vast majority of non-European settlers’, says Ballard (2008: 49–50), ‘continue to operate within the context of ideologies which bind them into all-consuming networks of mutual reciprocity with a [wide] range of kinsfolk’. Nonetheless, things are changing, with minority families displaying a range of attitudes towards marriage, cohabitation, parenthood, gender, domestic responsibilities and intergenerational relations, with some becoming more ‘European’-like (Beishon et al. 1998) – greater marital instability, more single-parent households (Qureshi et al. 2012), increasing disputes about religious adherence (Husain and O’Brien 2000). As Werbner rightly shows, there is an internal politics of the Muslim family around concepts of honour and shame and ‘the right to control the sexuality and reproductive powers of young people, particularly younger women’s bodies, specifically by men and more generally by an older generation of migrants’ (2007: 165; see also Werbner 2005). One area where this internal politics interacts with external legal and political concerns is the apparent unwillingness of Muslim couples to contract a civil marriage.

Lucy Carroll (1997), a US citizen working in Britain as a solicitor, has argued that a civil marriage ceremony fulfils the Islamic requirements of offer and acceptance of a contract, and a religious ceremony is unnecessary. That seems not generally agreed, and many Muslims assume that a marriage needs to be religiously (if not civilly) validated, and want this.3 For the marriage to be recognized under Islam the couple must go through a ceremony, conducted by a person religiously qualified to do so. This does not normally create a legally valid marriage in the UK; for this to happen the couple must go through another, civil, ceremony, in a registered building, conducted by an authorized person. This is different from Christian and Jewish weddings but similar to those of Sikhs or Hindus (Gandhi v Patel (2002) 1 FLR 602, discussed in Shah 2007). Turks in Britain may in fact marry three times (Yilmaz 2004); a nikah ceremony (treated as an engagement), followed by a civil ceremony and a wedding banquet (dugun), which solemnizes the marriage and its consummation. Registration with the Turkish consulate may then follow.

Since there is no ‘common law marriage’ in England, those who have not gone through a civil or recognized religious ceremony are simply cohabiting, with unmarried partners having little legal protection. It is estimated that the great majority of Muslim couples married in the UK have not registered their marriages (Bano 2007; Douglas et al. 2011; Hamilton 1995; Shah-Kazemi 2001; Yilmaz 2005), but cohabiting before a subsequent marriage/civil partnership, or as an alternative, is now quite usual in the general population. The Office for National Statistics (2012a: 1–2) reported that there were some six million people now cohabiting in the UK, twice as many as in 1996, with cohabitation the ‘fastest growing family type in the UK’. Some 27 per cent of the 25–34 age group are currently cohabiting, perhaps prior to getting married, with 60 per cent of men and women in that age group having cohabited at some stage (Beaujouan and Ní Bhrolcháin 2011). Usually this provokes little public comment, though the decline of the institution of marriage does trouble religious leaders and some Conservative politicians.4 Compared with these figures the percentage of Muslim couples cohabiting is greater, but not so far out of line with national trends as is sometimes believed.

In a talk in London in 2011, Aina Khan, a Muslim solicitor specializing in family law,⁵ who also believes that ideally Muslim religious marriages should be recognized as equivalent to civil marriages in English law (Glazer 2010; see further below), reported that in her experience the proportion of couples not marrying civilly has increased in recent years and is now near 80 per cent. Reasons for not registering a marriage in her view include ignorance on the part of women who believe, or are led to believe, that the nikah itself constitutes a civil marriage, or assume that their husband will undertake the registration. Women whose nikah ceremony may have taken place in a private homes (many Muslims in the UK marry in this fashion) often fail to realize that they are not legally married, and thus unprotected by law. Husbands may also deliberately avoid registration to escape the implications of the English legal system: the English law concept of community property (shared by husband and wife) is absent from Islamic law, and they may wish to keep family-held assets out of the purview of the courts.⁶

In Aina Khan’s view people should indeed register their marriages. Islam, she said, wished people to be validly married according to Islamic law and legally married according to civil law: ‘We are living as British citizens; if we register our cars, should we not also register our marriage?’⁷ There are indeed many reasons why marriages should be registered, including the woman’s maintenance and pension rights and rights to inheritance (Warraich and Balchin 2006). The penalties suffered by women married only under religious law, not realizing the consequences, also, of course, hit non-Muslims who cohabit, and there is pressure to change the law to give greater protection to all cohabiting couples; the Law Commission proposed legislation in 2007, but this was not adopted (Fairbairn 2013). While the Commission accepted that the social situation of couples religiously married was different from that of other cohabitants, their legal position was similar and could be covered by the legislation.

One solution, therefore, is for mosques to seek approval to register civil marriages at the same time and place as the nikah ceremony, as in Sweden and Norway (Arvidsson 2011; Fredriksen 2011).8 This has happened in some Muslim communities, for example in Leeds, but overall relatively few mosques, perhaps only 10 per cent, have followed suit. In 2007, 164 Muslim centres were registered for solemnizing marriages out of some 1,500–2,000 (Douglas et al. 2011: 13; in all some 40,000 buildings are so registered), and little has changed since the early 1990s (Hamilton 1995; Sookhdeo 2004). Likewise few Sikh or Hindu places of worship are registered. There has been much discussion of the reasons for this: it may reflect a distrust of the official system, and/or a preference for adhering to (unofficial) customary practices, which among Muslims of South Asian background include holding the nikah at home, where it might be conducted by anyone thought to be suitably versed in Islam. It has also been suggested that since registration involves a declaration that a person is not otherwise married, the requirement to register a nikah as a civil marriage would place anyone who might wish to marry polygamously in jeopardy as a potential bigamist (see further below).

Other ways of facilitating registration have been proposed including bringing into English law the system applying to religious marriages in Scotland. Under the Marriage (Scotland) Act 1977 a marriage ceremony such as a nikah would be civilly recognized if the ceremony were conducted by a registered individual. This is similar to Australia’s 1961 Marriage Act which authorizes ‘recognized marriage celebrants’ to conduct a religious and civil marriage, and register it, in one ceremony (Black 2010),9 though no-one is obliged to marry civilly, if they do not want to, or because they are already civilly married and wish to take an additional wife under Islamic law. There was a UK consultation about legislation along those lines in 2003 but the proposal was dropped: registration would have been ‘based on the celebrant (the person responsible for the solemnization of the marriage) rather than the building in which it takes place’, with that person ‘appointed by the religious groups to which they belong and notified to the Registrar General’.¹⁰ It is unclear what would constitute a ‘religious group’ and whether appointees would be automatically accepted or need to be vetted. Some Imams have in fact objected that the length of time needed for qualification, which involves a year ‘shadowing’ an existing registrar, is irksome and unnecessary. They are also concerned lest they be compelled to conduct marriages between same-sex couples. Sikh leaders likewise fear that registering a Gurdwara would oblige them to hold ceremonies under the Marriage (Same Sex Couples) Act 2013.¹¹

A further possibility was contained in a Private Members’ Bill, Marriage (Approved Organisations) Bill [HL] 2012–13, to allow certain organizations to ‘solemnise marriages according to their usages’ provided they were a ‘registered charity concerned with advancing or practising a religion or belief, including a non-religious belief’, lacked ‘the use of any registered place of worship’, and ‘appear[] to the Registrar General to be of good repute’.¹² The Bill, which failed to get a Second Reading, would have enabled the organization to nominate persons to act as approved registering officers with marriages (which must be between members of the organization) ‘solemnised with open doors’ in the presence of their registering officer and two witnesses, the persons to be married making the usual declaration about no lawful impediment. The Bill, proposed by Lord Lyndon Harrison, a dedicated humanist, was intended to allow organizations such as the British Humanist Association to perform ceremonies and register marriages, but could have applied to a Muslim nikah, though there might have been problems about the requirement to be ‘members’ of a ‘registered charity’ and about not having the use of a registered place of worship (as well as, under certain circumstances, the declaration concerning impediments).

Encouraging Registration

Short of legislation, however, it seems widely agreed that it is important to ensure that, although many Muslims, including Imams, are already fully aware of the advantages of civil registration, all concerned (especially women) appreciate the significance of contracting a civilly recognized marriage and of the consequences of relying on a nikah. This objective was addressed by the Muslim Institute’s ‘Muslim Marriage Contract’ (Bano 2011a, 2012a; Grillo 2012b; Griffith-Jones 2013b), an idea previously proposed by Sebastian Poulter to take into account public policy, and protect women’s rights (Poulter 1995; Menski 2001). With the wide support from Muslim and non-Muslim organizations, the Institute published a template, whose ‘Introduction’ noted that it ‘reflects a consensus effort of Islamic scholars and experts in family matters to lay down and protect the rights of both parties to a nikah (non-registry marriage) guaranteed under the Shari’ah’ (Muslim Institute 2008: 1). Together with a specimen ‘Certificate of Marriage’, the documentation includes an explanation of the legal position regarding nikah and civil marriages, discusses the rights and duties of the couple, stressing ‘the financial independence of the husband and wife and their shared obligation to support the family’, and explains the meaning of terms such as mahr (see Chapter 5). Contrary to the Hanafi school of Islamic law in which guardians (wali) have power to impose a marriage, it notes:

Parents are responsible for the upbringing of their children. Out of respect and courtesy it is important that young people involve their parents or guardians throughout the process of marriage. However, parental or guardian’s legal role finishes when children reach adulthood. Thereafter their role is optional and complementary. Hence the Muslim Marriage Certificate does not require the approval of the parents (p. 3).

By following the guidelines and obtaining the certificate, the introduction argues, ‘Muslims married in Britain will be able to access the British courts regarding marital issues whilst at the same time enabling British courts to enforce the rights of parties to a Muslim marriage in accordance with the Shari’ah’.

The contract was endorsed by Ann Cryer MP (who had been active in matters concerning Muslim women, notably forced marriages), but criticized by members of the ISC for its departure from fundamental principles (see p. 258), and by the MCB which stated that the Muslim Institute’s claim that the Contract was a reformist interpretation of Shari’a was ‘unhelpful’.¹³ Others (Muslims and non-Muslims) opposed it on the grounds that any recognition of Shari’a was unacceptable. It is not clear how far the Contract has been used, or by whom, though Bano (2011a) notes 17,000 downloads in the first two years. One young couple who tried to implement its procedures discovered that few people (including an Imam they approached to conduct their nikah) knew of it,14 and the proposal was relaunched in 2011.¹⁵ The ISC also goes some way towards encouraging registration. Its Nikah Application Form, besides gathering necessary information (for example about the mahr), notes that the bride, groom and guardian must all be present in person, and that a previously married bride must provide evidence of an Islamic divorce. If the marriage is not civilly registered, the ISC provides a copy only of the nikah marriage certificate, not the original. Additionally, if either partner is a non-EU national then there must be evidence of a civil marriage before a nikah is performed.

In 2010–12, a series of roundtable gatherings involving lawyers and representatives of some Muslim associations discussed various proposals to facilitate registration, and in 2012, following a meeting at the Home Office, the Ministry of Justice established a ‘Muslim Marriage Working Group’ to prepare a report discussing reasons for non-registration, ‘identifying existing legal remedies’ and drafting proposals.¹⁶ The Working Group investigated the problems, financial and other, faced by Muslim women whose marriages were religious-only, especially where marital breakdown occurred, and examined the reasons for the reluctance of husbands to register marriages, and Imams to seek qualification as registrars. Its report recommended a raft of measures to make registration simpler and easier, and proposed engaging with community associations and their members, via a series of regional ‘outreach’ meetings to inform all concerned about the benefits of registration. There were further proposals for the Equality and Human Rights Commission [EHRC] to monitor religious marriages as an equality issue in its Triennial Review, and for working with family lawyers and judges to enhance their understanding of the problem, and indicate at what points they might intervene to encourage registration. The Government accepted the report at the end of 2012, but by end 2013 only one outreach meeting had been organized (in Blackburn, where none of the numerous local NGOs was apparently involved), and nothing arranged for the following year.

At that point it was unclear whether any of the recommendations would bear fruit, but in January 2014 yet another roundtable meeting was held (at the Foreign Office), attended by ‘a large panel of opinion makers and influential public figures in the Muslim community’,¹⁷ including Baroness Sayeeda Warsi (a Muslim and then Conservative Minister of State at the Foreign office, with responsibilities for Faith and Communities¹⁸