Sharia Law in the UK – Dangerous or Discrimination?

Sharia Law in the UK – Dangerous or Discrimination?

The use of alternative dispute resolution (ADR), which includes consultation, mediation and arbitration in its arsenal, to help solve family disputes has been growing in popularity in recent years, not least to assuage the costs of litigation in these matters. Parties can agree to use religious organisations to aid resolution – and in the process allow the cultural sensitivities of both parties to be respected.

Now that is fine.

In fact, earlier this year, rabbinical arbitration received a major endorsement after a (family law) consent order was approved by the High Court following rabbinical involvement (AI v MT [EWHC 2013 100 (Fam]).

So the positive comments from Lord Philips, the Lord Chief Justice, (in a speech at the East London Muslim Centre on 03 July 2008) about the possibility of using Sharia law for alternative dispute resolution (ADR) in the UK, were a refreshing break from the usual Islamophobic hysteria we are used to seeing in the headlines.  Great, right? Well, not quite.

The Arbitration and Mediation Services (Equality) Bill, currently in the House of Lords, whilst admirably, without a doubt, proposes to protect the human rights of all parties, especially women, involved in ADR,  seems to be inadvertently immersed in anti-Sharia law sentiment.

Baroness Cox, who introduced the Parliamentary Bill, asserts that the purpose of the bill is NOT to interfere in theological affairs, but to ensure that quasi-legal systems aren’t allow to undermine our legal system.  So far so good.

However, Lord Carlisle QC speaking at a presentation to peers about The Arbitration and Mediation Services (Equality) Bill shared his concerns about the potential encroachment of Sharia Law (i.e. not all religions) in the family law courts.

It seems that, in general, whenever Islam is mentioned today, it is immediately followed by the diatribe of the evils of the religion.  Thus, naturally anything related to that particular religion is tarred with a simplistic, narrow-minded brush.

As a self-confessed atheist, I won’t say that I understand people of faith, and there are certainly parts of Sharia law that I do not support, such as the discrimination of (Muslim) women, but there are also parts of rabbinical law that are , in my opinion, equally unjust.  For example, the plight of the agunah – Jewish women who are ‘chained’ to marriage as a result of her husband refusing to grant a religious divorce, is a clear and obnoxious example how other religions have their misogynistic ways enshrined in their Good Books.

The Muslim Arbitration Tribunal* established in 2007 aims to serve the Muslim community, but within the legal framework of the law of England and Wales, which they say, naturally includes safeguards for human rights.

The question is simply this, if rabbinical arbitration is to be welcomed subject to human rights safeguards is sharia arbitration equally welcome subject to the same safeguards? Or are we just going to continue to ostracise the Muslim community further?

Shak Inayat, Solicitor

Ayesha Lalloo, Research & Support Assistant

0207 183 2898

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

*this is not intended to be a personal endorsement of this or any other organisation that promotes arbitration or an endorsement of arbitration per se.

© Shak Inayat 2013

Divorce Made Simple 8 – Costs

Divorce Made Simple 8 – Claiming Costs

In the event that costs are going to be an issue at decree nisi, you need to think very carefully about whether or not you wish to make a claim for costs at the outset of your case in any event.  If you do not claim costs at the outset, you cannot change your mind later.

In simple terms, the practicality of costs means that where there is a “naughty” party, costs will follow the event, i.e. the petitioner (the person who is starting the divorce) will be entitled to their divorce costs.

There are five Facts (grounds) for a divorce and different practical considerations apply:

a)      The usual practical scenario therefore is where there is a divorce based on the respondent’s adultery or behaviour, we usually claim costs.

b)     It is often more a question of judgment as to whether or not you claim costs where there has been a desertion or a five year separation without consent.

c)      The reality of the situation is where there is a two year separation by consent, you are unlikely to get your costs as the respondent will, undoubtedly, simply say that they will not sign the divorce documentation until such time as you withdraw your claim for costs in any event.

Therefore, in looking at the first option i.e. adultery and behaviour, is it worth claiming costs?

In simple terms the answer is yes insofar as the costs incurred by you, if you have instructed a solicitor, can be recovered from the respondent as the recalcitrant party.  If you have not instructed a solicitor then the costs will be in the region of just less than £400 for the Court fees known as disbursements.

However, in claiming costs, you need to take into account the emotional impact of the respondent feeling aggrieved at having to pay not only their own costs (which, in reality, will be nil if they have not instructed a solicitor but they do not often FEEL that to be the case) and pay your £400 costs, if you have not instructed a solicitor.

Sometimes therefore it is strategically more advantageous simply not to make a claim for costs before you even start the proceedings in your case so as to reduce any acrimony between the parties and ensure that the respondent is more likely to return the Acknowledgement of Service form in the first place and save you a whole barrel load of trouble.

This can be particularly more sensitive where there are children in the family as that may lead to all sorts of other repercussions.

The answer therefore is take great care in deciding whether or not to claim costs and there is no right answer and each individual set of circumstances will bring their own particular characteristics to that divorce and the claim for costs needs to be considered in the light of those characteristics.

Suffice to say at this stage that if you did claim costs in your prayer, i.e. the divorce application (petition) then at the decree nisi hearing you can then seek your costs.  The usual way of dealing with your claim for costs is either:

(a)        Doing nothing and assuming that the Court will simply order costs in your favour in any event; or

(b)       That you write a letter to the Court explaining your reasons for your desire to claim all your divorce costs from the respondent; or

(c)        That you turn up to Court to explain your position orally.

The third option, I believe, is the least practical option unless you know there are going to be particular difficulties as there may be some considerable waiting involved at Court.  The preferred option, I have found in practical terms, is often writing a letter to the Court well in advance to explain your reasons for claiming costs.

If the respondent however wishes to object to paying costs, they need to write to the Court and also provide you with seven days notice of that letter having been sent to the Court to comply with the Rules so that you have then sufficient time in which to respond to that letter that they may have written.

Although it is not always the case, you ought to be able to at least legally assume that if no letter has been received by you from the respondent seven days before the hearing, that they have not put the letter before the Judge for the Judge’s consideration in any event.  That prevents you from being ambushed.

Usually, again taking a practical approach to this as opposed to a legalistic one, it would make sense to write a sensible succinct letter to the Court to explain why you would wish to obtain costs just in case you are accidentally ambushed by the respondent by them sending a letter to the Court at the eleventh hour and the Judge failing to spot the lateness of that letter being filed.

In all cases, you should ensure that the letter is not long, rambling and an emotive statement of affairs but clear, concise and to the point.  The poor Judges only have a very limited time in which to deal with these matters and it is important that you get your point across by a sensibly worded letter.

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013

Divorce Made Simple 7 – Decree Nisi

Divorce Made Simple 7 – The Decree Nisi Hearing

Once you have received the Acknowledgement of Service form from the Court, as I have explained in detail in 6A and 6B of this series of blogs, you will then make an application for decree nisi as explained in the same blogs abovementioned.

The Courts will grant you two Certificates as follows:

(a)        A Certificate of entitlement to a decree of divorce

This is a Certificate which effectively states that the Judge has looked at all the paperwork without either party having attended Court and the Judge is satisfied that all the procedural and legal requirements have been attended to.

In simple terms, procedural requirements are that the divorce petition was prepared properly and accurately and that it complied with the requirements for it being completed and that it was served upon the respondent (the person you are divorcing) and there is evidence that the respondent received the Acknowledgement of Service form and that they have stated they do not intend to defend the case.

The legal requirements in simple terms are that you have met all the legal requirements of jurisdiction, that the correct Fact (ground for divorce) has been made and that you have satisfied the Judge that the allegations that you made in your Statement of Case are sufficient to warrant your divorce.

This is the first of the two ticks, so to speak, that you require to proceed onto decree nisi.

(b)       You will also receive a Certificate for Section 41 purposes.  This Certificate will either state:

(i)        That you do have children to whom the Court must have regard but that the Judge considers that the arrangements that you have made for your children, as stated in your statement of arrangements for children, do not show any “exceptional circumstances” why the Court should get involved.  The important word there is exceptional circumstances.  So if the Court did have some concerns, they will simply grant this second Certificate in any event.  The Court takes the view that they will make no order in relation to children unless it is better to make an order.  They therefore have a policy that unless something is obviously wrong that they will not intervene.  Alternatively,

(ii)       That you have do NOT have children.  This may apply because you have children who have reached majority or simply the fact that you have no children in any event.

You could get a situation where the Judge would not be able to grant you the first Certificate, i.e. the Certificate of entitlement to a decree of divorce, because you have not complied with the procedural rules or, in the alternative, that you have not met the legal rules – for example, that if you are proceeding on a behaviour petition that the behaviour of the respondent is so unreasonable that you cannot reasonably be expected to live with the respondent because of that behaviour.

The same can happen with the second Certificate where the Court is not satisfied with the arrangements for the children because exceptional circumstances have arisen which give the Court concern.

In these circumstances, the Court will usually either:

(a)        Write to you as the petitioner (the person applying for the divorce) and ask you to clarify the matters and usually in this case this is by way of a letter; or

(b)       They may ask you to file a statement clarifying the position or correct, say, errors on the face of the documentation etc; or

(c)        In the least usual case, and this does not happen very often but can happen, the Judge may ask you and the respondent to attend Court to explain your positions respectively and then deal with the problem accordingly.

Assuming that you have received your Certificates, the Court will automatically at the same time also provide you with an order which states the date when the decree nisi hearing will take place.

The decree nisi hearing, unless there is a claim for costs, is a mere formality.

If there is no claim for costs neither party needs to attend.

In theory at least, several days after decree nisi both parties will receive the decree nisi.  This is the penultimate stage of a divorce and there is only a little bit more work to be done after this to finally obtain your divorce.

If there is a claim for costs, then you should read the next blog, Divorce Made Simple 8, for further details in that regard.

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013

How Much?

How Much??

In a recent family law case of Evans v Evans [2013] EWHC 506 (Fam), Mr Justice Moylan has given judgment (running to over 200 pages!) in a case in which the total assets amounted to £40.7 million.

I will not bore you with the details of the case save to say that of that £40 million the husband got 55% of the assets and the wife 45%.

What was amazing was that the legal bill reportedly ran to £2.7 million.

How much?

Even I am lost for words

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

Shak Inayat

Solicitor

0207 183 2898

 

© Shak Inayat 2013