John Fotheringham - When Muslims look to Shari'ah principles, the law of Scotland can be quite accommodating

Published on Sunday 24 August 2008 19:53

LORD Phillips of Matravers, the Lord Chief Justice of England, said in a speech last month that English lawyers would soon have to recognise that Muslims in England will increasingly want to refer their private law disputes to mediation or arbitration under the principles of the Shari'ah.

It may be that Scots law can go a bit further than that, on behalf of those who regard the Shari'ah as their personal law, no matter where they may be geographically – rather along the lines of familiar concept of the personal law of the domicile.

For a Muslim, the Qur'an, the primary source of the Shari'ah system of law, is a divine and immutable revelation – not a statutory system that can be endlessly reinterpreted and amended with changes in society, fashion or the governing party of the country.

Its guidance is sometimes expressed generally – not in any precise statutory style – and it is supplemented by what the Prophet said, and by later juristic interpretation.

It is certainly not a thing that can be ignored by the individual Muslim in their own life, although most Muslims would agree that the Scottish courts are quite right to apply the law of Scotland, and must always do so.

There is a strong tendency for Muslims to marry within Islam and we increasingly find Muslim communities in Scotland growing into coherent social units, always based on the family.

This has the result that, when families split up, the parties often choose to refer their disputes to the Shari'ah rather than to the ordinary civil rules of Scots law. This is particularly true in cases involving matrimonial property and maintenance, which has a well-developed jurisprudence in Islam.

One excellent example of an Islamic principle that can be recognised and effectively applied by the Scots' courts is the mahr (or dower – not dowry). It has no parallel in Scots law, but should not be incomprehensible to any Scots solicitor who has ever drafted a pre-nuptial marriage contract.

The essence of the mahr is a gift by the husband to the wife to mark the marriage, given immediately or deferred until death or divorce. Sometimes the arrangement includes both gift types.

On divorce, depending on circumstances, the wife is entitled to claim her deferred payment from the husband. On his death, the sum forms part of the debts of the estate and passes to the widow as a debt rather than under any principle of succession.

If a Scottish Muslim couple wish to agree the terms of a mahr along Shari'ah lines, the law of Scotland should be able to accommodate them. After all, most Muslims in Scotland were born here so there's no question of alien immigration bringing in a foreign contagion. They are here and no longer foreign.

Lord Phillips of Matravers spoke of the Shari'ah playing a part in mediation and arbitration in family law in England. That can be done in Scotland too, but I suggest that Scots law, with its flexibility and respect for prenuptial contracts, can go further than that.

In Scotland we have a remedy for the traditionally married Muslim wife whose marriage has not been registered and so is invalid in UK law.

At the end of a long Islamic marriage she would have no effective remedy from her "husband" on divorce in England. The same wife in Scotland has a statutory remedy under section 28 of the Family Law (Scotland) Act 2006, because she has lived with her husband "as if" married in Scots law terms and has a claim as a cohabitant.

If she is bereaved, her claim against his intestate estate is (probably) as good as one made if she had been married according to the law of Scotland. The Act does not echo the Shari'ah but it does provide a remedy against an unwilling husband or his executors.

Muslims who have sought rulings in their disputes from the English Shari'ah institutions often report dissatisfaction, and not only because of the lack of any appreciation there of the distinct nature of Scots law in which context the parties' dispute has arisen.

There are moves in some quarters to set up a system of advice and arbitration for Muslims who wish to refer their disputes to a competent body that can apply Shari'ah principles in order to reach a solution.

Such a body could only ever be a court of voluntary jurisdiction, and I seriously doubt that it could deal with issues of parental responsibilities and rights.

In any event, we don't yet have an institution in Scotland remotely analogous to a court that can apply judicial procedures to Shari'ah disputes. Until we do, Scottish solicitors can serve their Muslim clients by being sensitively and creatively aware of what can be done within existing structures of Scots law.

&#149 John Fotheringham is a child law specialist with Fyfe Ireland LLP.