He and his wife formalised their marriage according to Islamic law, and he expected their relationship to be governed by those rules. They even made a “prenuptial agreement” which specified that, in return for his paying her a sum of money when they married, she would give up her rights to a share of their home. Dr Al-Saffar was furious when England’s courts ruled that the agreement didn’t count, and he had to pay his wife half the value of the house they had shared.
Does Dr Al-Saffar make a fair point? The short answer is no. In 2010, the Supreme Court recognised the validity of pre-nuptial agreements that vary the division for marital property from the 50-50 split that the English law says should be the basis of every divorce. But they did so with important caveats: if there was evidence that one party had been pressurised into signing an agreement that disadvantaged them, or if the courts just thought the agreement was unfair, then a “pre-nup” would not be valid, and the settlement would revert to an equal division.
Dr Ziba Mir-Hosseini, an expert on Islamic family law, points out that Muslim law on marriage is “fundamentally patriarchal”. “It suits the interests of men rather than women,” she says. Central to Islamic marriage law is the wife’s duty of submission to her husband, which he purchases by agreeing to provide for her for the duration of the marriage. He can divorce her if she refuses to submit to his will.
Although it has only happened within the last 40 years, English law is now based on a recognition of the equal rights of husbands and wives – which is why English courts are not going to recognise a “pre-nup” based on Islamic law. The courts reject such agreements as “fundamentally unfair”. If the Orthodox Jewish courts are indeed allowed to operate a system which does not recognise the equal rights of both spouses, that is a legal anomaly which should be reversed, not upheld. The correct response to a situation in which one group is allowed to violate a legal principle is not to allow another group to do so, but to stop the first group transgressing that principle.
Dr Al-Saffar’s complaint against the English legal system is echoed in the increasingly vociferous chorus arguing that Muslims should be allowed to regulate their communities by their own laws: that they should, for example, be allowed to follow the requirements of Islamic religious law or sharia. This, it is said, is necessary if Britain is to treat Muslims “fairly”. Unfortunately, the result would also be to systematically disadvantage Muslim women.
It is essential, if Britain is to remain a society based on equality before the law, that we do not start allowing communities to discriminate against women. Muslim men can be part of British society, and most already are, without having to suppress Muslim women. Ultimately, that’s why Dr Al-Saffar has to pay his ex-wife the money that he so bitterly resents.
By Alasdair Palmer