England and Wales do not apply Sharia law. Although Muslims are freely able to take part in a Nikah (Islamic marriage contract) performed in England and Wales the ceremony is not considered a valid marriage under the law in England and Wales. The parties are treated as if they were cohabitees on the breakdown of any relationship.
Sharia Councils operate in the UK. Each Sharia Council applies at least one of the four recognised Islamic schools of thought:
The consequence of this is that each Sharia Council applies different interpretations of Sharia law, which may result in large disparities in the way in which Sharia Councils operate and the decisions they reach. This means if one party is seeking a divorce they will sometimes effectively “forum shop” to ascertain what the school of thought is at each of the different Sharia Councils before making their application for an Islamic divorce.
There has been discussion as to whether Sharia law could be recognised in relation to whether there has been a marriage or divorce. This has not happened in order to avoid creating a dual system.
However under new guidance produced by The Law Society, high street solicitors now have guidance as to how to compose Islamic Wills. The guidance details how Wills should be drafted to fit Islamic traditions while being valid under British law. It suggests deleting or amending standard legal terms and even words such as “children” to ensure that those deemed “illegitimate” do not have any claim over the inheritance. It also recommends that some Wills include a declaration of faith in Allah which could be drafted at the local mosque and hands responsibility for drawing up some papers to the Sharia Courts.
The guideline document from The Law Society sets out differences between Sharia inheritance laws and the default laws currently in place in England and Wales. In Islamic custom inheritance is divided among a list of heirs determined by ties of kinship, rather than named individuals. It also acknowledges the possibility of people having multiple marriages. The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all and only Muslim marriages are recognised.
Some parties have expressed concern over this move with some lawyers describing the guidance as “astonishing”. Some commentators are concerned that this would lead to a “parallel legal system” for Britain’s Muslim community, something which thus far the Courts in England and Wales have strenuously tried to avoid. Lady Baroness Cox, a cross-bench peer, said “Everyone has freedom to make their own Will and everyone has freedom to let those Wills reflect their religious beliefs but to have an organisation such as The Law Society seeming to promote or encourage a policy which is inherently gender discriminatory in a way which will have very serious implications for women and possibly for children is a matter of deep concern.”
The President of The Law Society, Nicholas Fluck, told the newspaper the Telegraph that the guidance would promote “good practice” in applying Islamic principles in the English legal system.
Since the publication of The Law Society guidance there has been calls for a parliamentary enquiry into the scale of Islamic law in England.
The Law Society has stated it is not promoting Sharia law and has insisted that it issued the guidelines in response to demand. Nicholas Fluck said any suggestion that the guidance was promoting Sharia law by publishing guidance on these Wills was “inaccurate and ill-informed”. Stating that:
We live in a diverse multi-faith, multi-cultural society…The Law Society responded to requests from its members for guidance on how to help clients asking for Wills that distribute assets in accordance with Sharia practice. Our practice note focuses on how to do that where is it allowed under English law. The law of England and Wales will give effect to wishes clearly expressed in a valid Will insofar as those wishes are compliant with the law of England. The issue is no more complicated than that.