Following Myriam Francois-Cerrah’s Channel 4 documentary The Truth About Muslim Marriage, aired on 21st November, there’s been a fair amount of discussion on the lack of legal rights women expose themselves to if they enter into nikah religious contracts and not (additionally) civil marriage contracts. The survey of 923 respondents across 14 cities showed some startling findings. 61% don’t have a legally-binding civil ceremony. About 10% are polygamous nikah marriages. 3% are polygamous nikah marriages where consent is lacking. For anyone close to community goings-on, these stats aren’t at all surprising, but they do shed empirical insights into a plethora of issues out there for women. Of course anything to do with ‘Muslim’ and ‘women’ naturally gains notoriety in our current socio-political climate. But, that aside, I don’t think there’s any denying of a dire need for practical solutions in situations today where women, looking for legal protection, can feel incredibly let down. Thus, the documentary primarily called for British law to recognise nikah as a legally-binding marriage contract. But is it as simple as that, and is this the right call to make to address the problems women face effectively at this point in time?
Nikah is a contractual agreement between a husband and a wife, based on principles of Islamic law (usul al-fiqh). While for a very small number the nikah is an interest out of social expectation, for most, it’s an act of virtue of following the Prophetic Sunnah and Islamic law, which they voluntarily carry out. However, it isn’t without social intrigue and family politics – which isn’t unusual for weddings generally, not least since friends and family are involved in some way. For third-generation Muslims of the UK, deciding how much should the dowry be, should it include jewellery, should it be paid upfront or in instalments, or, whether, the bride’s-side has a right to demand a sizeable dowry as a deposit for a house for the newlyweds, or if the nikah ceremony should take place at a mosque or in the home, and who should act as ‘guardian’ (wali) if the father has died can all be decisions shrouded in nervousness.
All of that before the cultural taboo where the bride is expected to avoid being seen to be uttering her consent (kabool) too quickly. In some cases, this can end up becoming a long drawn-out saga where ‘elderly aunties’ gather around the bride to hear her cry for some time before uttering the official declaration of consent (having happily taken part already in prenuptial engagement parties). Part of this reflects the relatively greater level of uncertainty within arranged marriages compared to, say, a socially liberal situation where the bride and groom have experience of cohabiting intimately. And, as well, the expressions of bashfulness (haya) as a virtue comes into play too. While the power-play politics and socio-cultural expressions don’t have much to do with the letter of the nikah law, they are nevertheless experiences that prospective couples often face.
These kinds of experiences can be greatly amplified if the marriage breaks down. Divorce is seldom free of emotional scars or acrimony (at least in the short term). And just like in any legal system where people look for ways to protect their own material interests or up their ego, this is no different when it comes to the nikah in Islamic law. In all of this, most Muslims tread a common-sense line. They must do so because the nikah contract isn’t regulated by any credible overseeing body as such; and there are widely varying standards of conformity to the letter of the original nikah contract, too. Divorce mediation can be fraught with its own politics, where often the biggest obstacle for women is knowing who to ‘go to’ to redress grievances. It doesn’t help that divorce is still socially perceived as bringing shame on parents. What’s more, since the nature of the nikah contract is religious and religious institutions in the UK today are generally male dominated, it’s not women who divorce-seeking women must interact with to realise their rights.
Will any of this be solved by simply recognising the nikah as a legally-standing contract under British law? Here are some more complications. Firstly, the nikah contract doesn’t seek to prevent an already married man from marrying again, unlike British marriage laws against polygamy. This means, unless the fiqh of nikah is evolved to mandate monogamy or polygamy is decriminalised in British law, we’ll have contradicting laws which would be completely unworkable. Secondly, to recognise nikah properly it would be necessary to accept how the contract is annulled through the talaq system, but this would open up a yet more issues. The talaq procedure, as it’s applied in the UK, lacks standards and enforcement checks; after all, it’s often done through imams, mosque committee members or elderly members of the family who aren’t necessarily accredited professionally to do so. In the most whacky cases, it is possible for complete quacks to perform the nikah ceremony. Both nikah and talaq processes, as currently implemented, thus aren’t nearly as robust enough as they need to be for a civilian court of law.
Putting these considerations aside, isn’t the real elephant in the room one of education and awareness? How is it possible that civil ceremony doesn’t come into discussion for so many couples? And why are there no standards and bodies overseeing nikah contracts? Surely, these are more pressing questions, solutions to which are far more workable and likely to alleviate the problems identified.