The application of Islamic law in the English Courts By Judge David Pearl

It gives me great pleasure to have been asked to deliver the Noel Coulson Memorial lecture for 1995. I first met Noel nearly 30 years ago in Cambridge when he used to travel up to Cambridge every other Saturday to lecture on a subject known in those days as "Mohammedan Law" for the Law Tripos. I used to attend these lectures as a Research student, and it was through listening and learning from Noel that I first acquired an interest in the subject which was his life's work.

My topic this evening is one which interested Noel throughout his life; namely how to explain Islamic law and practice within the context of the English courts and tribunals. Noel realised that Islamic law had a practical relevance to the British society of the second half of the twentieth century, and, both through his writings and his court appearances, he played a crucial role in ensuring that Islamic law principles were understood and, where necessary, applied by the judicial authorities in this country.

In recent years, the Ethnic Minorities Advisory Committee of the Judicial Studies Board has embarked on a training programme for Judges in helping them understand the customs of the ethnic minorities who live in the UK. It has published considerable written material, and it is in the middle of a rolling programme of residential courses for all Judges. One would hope therefore that Judges are now at least more aware of the many issues which can arise in the course of a hearing. As one District Judge has recently written in the professional press: "...it is important for a judge to recognise when a case involves an ethnic element which requires further investigation and that, if necessary, suitable expert evidence should be provided. It is also clearly the duty of the advocates to bring such matters to the attention of the judge so that proper consideration can be given to them and the case can be considered in its proper context."[1]

Thus major responsibility devolves on the expert, and Professor Coulson's affidavits and oral testimony on Islamic law and custom were of immense significance both at the time and indeed even today in enabling the courts to better understand the issues which often come before the courts and tribunals. Inevitably, the courts and tribunals in England and Wales (and Scotland too) have been faced over the years with some interesting and very complex questions involving the Islamic communities who live in our islands. Questions relating to the validity of marriages and divorces, and the custody and care of children, are of major significance. Such problems have arisen with regularity in recent years, in the context of Social Security and Pension law and Immigration law in particular. Of similar importance to the Muslim community are the following questions many of which have occupied the courts in recent years: the position accorded to arranged marriages, the enforcement of the dower and other aspects of the Muslim marriage contract, marriage registration arrangements, spousal maintenance, the recognition of the Muslim forms of divorce, and the inheritance rights of the Muslim heirs. Other issues have arisen in the commercial law context, primarily because of the increasing contact with the Muslim world brought about at least in part by the now significant number of Muslims living here in this country.

An early case illustrating Professor Coulson's influence is Alhaji Mohammed v Knott.[2] This case involved a Nigerian Muslim husband who had contracted in Northern Nigeria an Islamic marriage, which was a potentially polygamous marriage by Northern Nigerian law, with a 13 year old girl. Shortly afterwards the couple came to England and they were cohabiting. The matter came before the magistrates on a complaint brought to them under a child protection provision which was then in force, namely s 62 of the Children and Young Persons Act 1933. This provision enabled the court to declare that the girl was in need of care, protection and control and that she was exposed to moral danger under s 2 of the Children and Young Persons Act 1963.

Professor Coulson gave evidence to the magistrates court about the marriage laws and customs observed by Nigerian Muslims. This evidence was unchallenged before the magistrates. The evidence was summarised by them as follows: "In brief, the marriage is effected by a simple contract between the parents or guardians of the bride and bridegroom. The bridegroom pays a dowry. Sometimes, but not always, the signing of the contract is succeeded by a religious ceremony and a marriage feast; thereafter there is a formal handing-over of the bride to the bride-groom by the bride's parents. There is no minimum age for the marriage of a girl, but Mr Coulson emphasised that it is unlawful for the bridegroom to live under the same roof or consummate the marriage until there are decisive indications of pubertal maturity in the bride. It is conclusively presumed under Muslim law that a girl cannot attain puberty below the age of 9 and has attained it at the age of 15. Muslim law permits polygamy and a man may have 4 wives. Divorce is by mutual consent, or for any reason and at any time at the instance of the husband."[3]

The justices in this case were of the view, whether or not the marriage was recognised as valid by English law, that the girl was exposed to moral danger, and that a continuance of the association between her and the man, notwithstanding the marriage, would be repugnant to "any decent-minded English man or woman". In those circumstances, they found the complaint proved and made what was then called a "fit-person order"[4] which enabled them to admit the girl into the care of a local authority. There was an appeal by way of case stated, and the Divisional Court decided, first, that the marriage was recognised as valid by English law, in effect on the basis of the unchallenged evidence of Professor Coulson. The Court then went on to reverse the decision of the magistrates.

Lord Parker CJ said that "decent-minded English men and women, realising the way of life in which the girl and the man were brought up, would not inevitably say that the continuance of their association, notwithstanding the marriage, is repugnant."

The language of the case is rather uncomfortable, nearly thirty years on, yet the case itself survives as a clear reminder of the importance to the courts and tribunals of expert testimony on Islamic law in cases where these issues are of significance.

The case is also of interest because of the debate which took place subsequently in the legal press.[5] Ruth Deech, now the Principal of St Anne's College Oxford, wrote an article in the New Law Journal criticising the decision of the Chief Justice. She said: "The girl did not speak any English; she was quite likely to contract venereal disease from her husband and, eventually to have children. If the statistics on teenage brides are anything to go by the marriage seemed destined to break down and one can easily imagine the wife as a future deserted uneducated mother incapable of earning a living or bringing up her children and a charge on the state."[6] Others took an opposing view to that of Mrs Deech and supported the decision.

But the sentiments expressed by Mrs Deech were reflected in the amendments to the Immigration Rules in 1986, since when persons under the age of 16 have been barred from entering the UK in reliance upon their status as a spouse. The Rules were amended in 1986 in consequence of two cases, one involving a 12 year old Iranian bride and the other involving a 13 year old Omani bride. The Rules are now contained in HC 394 at paragraph 277.

The marriage in Mohammed v Knott was recognised as valid by English law. This will of course not always be the case. For example, it has been known for Pakistani men, temporarily in the UK as visitors, to contract a Muslim ceremony of marriage (a nikah) in this country with British girls from the Pakistani community and then return to Pakistan and from there seek entry to this country for settlement. The "marriage" in this country is of course invalid because it has not complied with the provisions of the Marriage Act 1949. However, the parties may well consider themselves to be married. Such a man will find it extremely difficult to enter this country for settlement based on marriage to the British sponsor. Applicants for settlement in the UK in marriage and fiancee cases need to establish, amongst other matters, that the primary purpose of the marriage is not to facilitate entry into the country.[7] The Secretary of State operates an extra statutory concession to allow applicants entry for permanent settlement when they have been married for five years or more or a child has been born.[8] In effect, five years of marriage or birth of a child is seen to be evidence that the primary purpose of the marriage was not to facilitate entry. However, this concession is not available in the case of "fiancees".

A man who married in this country in a Muslim ceremony without complying with the provisions of the Marriage Act 1949 would be defined by the entry clearance officer who initially considers the application for settlement almost certainly as a "fiancee". Yet it is probable that social factors prevailing in Pakistan may well prevent the couple from going through another nikah ceremony in Pakistan.

An example from the English cases illustrates how valuable expert testimony can be. This is the case of R v Secretary of State for the Home Department exparte Musarrat Yasmeen[9] where Woolf J (as he then was) heard evidence presented by Dr Doreen Hinchcliffe. On the basis of that evidence, Woolf J was able to decide as a matter of fact on the requirements for registration of Muslim marriages in Pakistan. He applied the approach adopted by Abdulla J in the case of Abdulla v Khatoon[10] which was cited to him by Dr Hinchcliffe. Woolf J said: "Having regard to the material before me it does seem that the proper approach is that indicated by the learned Judge in that case, and that the position is one where the Pakistan courts would regard the absence of a marriage certificate as raising some doubts as to the existence of a valid marriage, but no more than that."[11]

Dr Hinchcliffe was also involved, this time with myself providing the expert evidence on the other side, in the case of Re S (a minor.)[12] This difficult wardship case reached the Court of Appeal. It concerned an appeal by the Pakistan mother of two young children from a decision of a High Court Judge who had directed that the two children, a girl of 7 and a boy of 3, be returned immediately to their father in Pakistan whence the mother had brought them to England some few weeks previously. It was argued by the counsel for the mother that the court should not order a peremptory return to a jurisdiction which does not apply a similar system of law to that governing decisions over the welfare of children adopted by the courts in England.

Section 17 of the Pakistan Guardian and Wards Act 1890 states: "In the event of a dispute involving the physical care of a child, the court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor." Counsel for the mother submitted that because of this legislation, the welfare of the child is qualified by the reference to Muslim law, which would have severely restricted the mother's involvement in the children's upbringing on the facts of this particular case, she having admitted to an extra marital affair. Thus the court should not simply take the view that the interests of the children require their immediate return to Pakistan.

The Court of Appeal rejected this argument. Balcombe LJ said: "These are Pakistani Muslim children. Their home is in Pakistan." Nolan LJ cited a Pakistan case referred to him by the affidavits, namely Mohammad Bashir v Ghulam Fatima,[13] to illustrate the difference between English law and Pakistan law, whereby in Pakistan the courts will give effect to the minors' welfare but from the Muslim point of view. Nolan LJ found this neither surprising nor objectionable, and he supported the proposition that the trial judge was entitled to take the view that for Muslim children of Muslim parents whose home hitherto has been in Pakistan the principles of Pakistan law are appropriate by English standards.

If the position relating to children is difficult for courts to disentangle, and much of the commentary after the Court of Appeal decision in Re S (a minor) was critical, even more problematic is the question of the validity of a Muslim unilateral divorce. This issue has occupied the courts and tribunals on many occasions, and on many of these, expert evidence has been submitted to the court by one or both sides.[14] On other occasions, quite often in situations where no legal aid is available such as the situation in front of Immigration Appeal Adjudicators and the Immigration Appeal Tribunal, no expert evidence is available at all.

Probably the most frequent problem to occupy the courts and tribunals in this area concerns the question of the validity of the talaq in the context of Pakistan or Bangladesh law. Those two countries, although neither in India nor Pakistan Kashmir, an Ordinance of 1961 has introduced certain procedural reforms to the traditional forms of talaq, the most important being the requirement that notification of the pronouncement of the talaq must be delivered to the Chairman of a local administrative unit known as the Union Council.[15] It is important to observe that there are now cases in Pakistan which tend to undermine the framework of the Ordinance.[16] If this turns out to be the basis for the law in Pakistan in the future, the procedural requirements available under the Ordinance will no longer be of relevance.

At the present time, however, English Courts and Tribunals do draw a distinction between the Pakistan and Bangladesh talaq which they refer to as a "procedural" talaq and the classical form of talaq (as in India) which they often call a "bare" talaq. The distinction is important because Part II of the Family Law Act 1986 draws the distinction, developed by case law, between a divorce obtained by "judicial or other proceedings" (including the procedural talaq of Pakistan and Bangladesh) and the divorce obtained "otherwise than by means of proceedings" (for example the talaq pronounced in India or in Pakistani Kashmir).[17] So far as the former is concerned, the talaq is recognised in UK if it is effective by the law of the country in the place where it was obtained and, at the relevant date, either party was habitually resident, domiciled either in accordance with the local law or English law, or a national of that foreign country.[18] In contrast, and for rather ill-formed public policy reasons, a "bare" talaq will only be recognised in UK if it is effective by the law of the country where it was obtained and if, at the relevant date, each party was domiciled in that country (or if only one was domiciled in that country, then the other was domiciled in another country where the bare talaq was recognised). Furthermore, there is an important and restrictive proviso to the recognition of the "bare" talaq in the UK; namely no recognition will be entertained if one of the parties has been habitually resident in the UK throughout the period of one year immediately preceding the pronouncement.[19]

As if all this was not sufficiently complex, there are additional difficulties which require exploration. In a population accompanied by patterns of migration, people do not arrange their affairs within one country. If all the procedures involved in a Pakistan talaq, namely the pronouncement of the talaq, the communication to the Chairman of the Union Council, and most probably also, the sending of a copy of this communication to the wife take place in Pakistan; then the divorce is an overseas divorce and is capable, subject the connecting factors to be found in the Family Law Act 1986, of recognition in this country. In contrast, if all the procedures take place in UK, then the talaq is not capable of recognition by virtue of the Family Law Act 1986 section 44. But what of a case when a man originating from Pakistan pronounces the talaq in UK and then sends a copy of the talaq to his wife in Pakistan and sends a notification of the pronouncement to the Chairman of the Union Council in the wife's district in Pakistan? He himself, however, does not set foot outside the UK. Such non-curial "transnational" divorces were not recognised under the provisions of earlier legislation.[20] It has been argued by academic observers that the new legislation, namely the Family Law Act 1986, has superseded the earlier case law.[21] Their arguments were essentially two fold, based on the interpretation they give to s 44(1) and s 46(1) of the Family Law Act 1986. Whatever the strength of their arguments, and I concede that they are correct on a literal interpretation, the issue has now been resolved, at least for the time being, by the first instance judgment of Wall J in the case involving a transnational Jewish get: Berkovits v Grinberg (A-G intervening).[22] The Judge ended his 17 page judgment with these remarks: "I have...come to the conclusion that policy considerations...are properly a matter for Parliament and not for the courts. If for example there is a distinction to be drawn between a talaq and a get it is a distinction which Parliament must draw after a full public debate on all the questions of policy which arise. Accordingly, the question as to whether or not in an increasingly multi-racial and multi-ethnic society the refusal to recognise the transnational divorce can or should continue is a matter for Parliament, and should not influence my interpretation of the Statute."[23] I must say that I have always been of the opinion that the Family Law Act 1986 did not change the previous situation, and that Wall J is absolutely correct. I say this for the following reasons. There is first the public policy argument. There is a clear prohibition in the legislation on the recognition of extrajudicial divorces obtained in the UK. What is the difference between this situation and an extrajudicial divorce obtained by a procedure taking place partly in this country and partly abroad? Secondly, there is no hint whatsoever in Hansard, reporting the debates on the Bill, that a change to the law relating to transnational divorces was in contemplation. Indeed the opposite, because the rather liberal regime of recognition for overseas non-curial divorces advanced by the Law Commission was not accepted by Parliament, which introduced new and stricter provisions for recognition of non-curial divorces. It would therefore be a manifest absurdity for a procedural talaq pronounced in England but communicated to a Chairman in Pakistan to be recognised under the new and less liberal regime of the Family Law Act 1986, when the sole purpose of the amendments introduced in Parliament to the draft Bill prepared by the Law Commission was to tighten up on the recognition of such divorces.

It is pertinent to note that Professor Coulson urged liberality by the Courts and the Legislature with respect to the recognition of Muslim talaq divorces, and indeed he wrote a letter to the Times on this subject which was published in that Newspaper on May 24th 1983. If only Parliament would have listened to his wise counsel!

All of this leads me to the main question I wish to address. As I have already said, all these issues require the courts and tribunals to hear evidence on the particular aspect of Islamic law in question, be it the essentials of the traditional form of talaq or its development in the law of a country such a Pakistan, or some other aspect of Islamic law. The method adopted in UK for courts to be apprised of such information, which must be proved as a matter of fact like any other matter of fact, is for affidavits to be sworn and evidence given on oath, and subject of course to cross examination, by those who profess a knowledge of the particular foreign law. If there is a conflict of evidence presented by the expert witnesses from either side, the judge must weigh the evidence and reach his own conclusions of what is the position of the foreign law. The judge is not free to use his own sources of information, or at least, if he is aware of such material, he must certainly draw this material to the attention of both parties to enable them to comment on it. What is more, issues of foreign law, as issues of fact generally, are subject to the vicissitudes of tactical retreats and other manoeuvres which accompany any adversarial process.[24]

Of course, experts are present in courts in other contexts; not least in medical cases and public law children cases. The expert owes a duty to the court in these areas[25]. In National Justice Compania Naviera SA v Prudential Assurance Co Ltd,[26] the Court itemised a number of guidelines which are relevant to all experts, including experts on foreign law. The factors are:

1. Presenting evidence to the court which is the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation;
2. Providing independent assistance by way of objective, unbiased opinion in relation to matters within his or her expertise;
3. Stating the facts or assumptions upon which opinion is based, not omitting to consider facts which detract from the concluded opinion;
4. Making it clear when a particular question or issue falls outside his or her expertise;
5. Where an opinion is inadequately researched because of insufficient data, stating this with an indication that the opinion is no more than provisional.

These factors are of importance, but they do not destroy the fundamental point in English adversarial litigation that the expert is in effect employed by one or other of the sides involved in the dispute and this will necessarily colour, even if only indirectly, the presentation of the opinion to the court. Other jurisdictions adopt a different approach. For example, in Germany reports are sought directly on the initiative of the court itself from institutes such as the Max-Planck Institute for International and Private International Law. Such reports are independent of the parties' positions and are submitted to enable the court to reach a decided view on the applicable foreign law. The reports are impartial and the selection and appointment of the expert reporter lies in the court's discretion.[27] There is a strong argument, helped to a large extent by the thinking explicit in the Woolf Report,[28] that English practice should now move away from its traditional approach and adopt the European model. In some circumstances this already happens when the Official Solicitor is involved. If this body seeks its own independent expert on foreign law, it will inevitably be presented to the court as an opinion in no way linked to the particular concerns of either side. It is perhaps therefore not such a major jump in procedure to suggest that the court should be empowered to seek its own independent advice on foreign law in circumstances when such advice is needed, either because it is lacking this information or because the testimony presented by the parties on the foreign law is either inadequate or is in conflict. Woolf recommends (i) the calling of expert evidence should be subject to the complete control of the court and (ii) the court should have discretion, with or without the agreement of the parties, to appoint an expert to report or give evidence to the court. I agree with this.

Professor Coulson always presented his evidence independently and untainted by the influences of the adversarial system. More than perhaps anyone else since the war, it is to Professor Coulson's work that we must turn to see how Islamic law principles and practices have been understood by English courts, and applied by the courts if appropriate. We all owe him a great debt, and how very appropriate it is that these lectures have been established in his honour. It has been a wonderful privilege to have been asked to make the contribution to his memory for this year.

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Footnotes

1. See District Judge Stephen Gerlis "Racial Awareness for Judges". May [1995] Fam Law 260.
2. '[1969] 1 QB 1.
3. [1969] 1 QB 1 at pp 6,7.
4. 'See now the powers of a local authority to seek a Care Order or a Supervision Order, under s 31 Children Act 1989. The Court must be satisfied that the child is suffering or is likely to suffer significant harm. For an overview of the current English law see A. Bainham with S.Cretney 'Children. The modern law (Jordan, 1993).
5. Some of the comment is referred to by Poulter in his book "English Law and ethnic Minority Customs" (1986) at p 21.
6. Ruth Deech, "Immigrants and Family Law" 123 New Law Journal 110 at 111.
7. HC 395 para 281.
8. 210 HC Official Reports (6th series) cols 523-524 (30 June 1992)
9. Unreported, 11th February 1982 (QBD).
10. (1967) PLD Dacca 47.
11. See Muslim Family Laws Ordinance 1961 s 5.
12. (1993) 1 FLR 297.
13. [1953] PLD Lahore 73.
14. The most important cases are Quazi v Quazi [1980] AC 744 (HL); Chaudhary v Chaudhary [1985] 19 (CA); R v Secretary of State for the Home Department exparte Ghulam Fatima [1986] AC 527 (HL); Viswalingham v Viswalingham (1979) 1 FLR 15 (CA).
15. 'I have commented on the Ordinance in "A Textbook on Muslim Personal Law" (2nd ed, Croom Helm, 1987) and in "Three decades of Executive, Legislative, and Judicial amendments to Islamic Family Laws" in C.Mallat and J.Connors "Islamic Family Law" (Graham and Trotman, 1990) at 321.
16. See in particular Muhammad Sarwar v The State [1988] PLD FSC 42.
17. See in particular Chaudhary v Chaudhary [1985] Fam 19 (CA).
18. Family Law Act 1986 ss 46(1)(a)(b); 46(5).
19. Family Law Act 1986 ss 46(2), 46(2)(c).
20. Recognition of Foreign Divorces and Legal Separations Act 1971. See R v Secretary of State for the Home Department exparte Ghulam Fatima [1986] AC 527.
21. See in particular M.P.Pilkington 1988 vol 37 ICLQ 131; B.Berkovits 1988 vol 104 LQR 60; J.Young 1987 vol 7 Legal Studies 78; and D.Gordon in his book "Foreign Divorces: English Law and Practice" (Avebury, 1988) pp 100-104.
22. [1995] 2 All ER 681 (Fam D).
23. [1995] 2 All ER 681 at 696.
24. See Viswalingham v Viswalingham (1979) 1 FLR 15 (CA).
25. see Re R (Expert's Evidence) [1991] 1 FLR 291; Re AB (Child Abuse: Expert witnesses) [1995] 1 FLR 182.
26. [1993] 2 Lloyd's Rep 68 (QB).
27. See Business Transactions in Germany (Matthew Bender and Co Inc, 1992) at 5.09.
28. "Access to Justice" (Ch 23).

original link http://www.soas.ac.uk/cimel/materials/coulson-pearl.html