Muslim and Jewish Women's Quest for Egalitarian Justice in Religious Family Laws
Dr Naheed Wali Ghauri reflects on egalitarian justice within religious family laws.
Since Lord Woolf's reforms, the civil and family courts have been encouraged to resort to arbitration and mediation. In family cases mediation is widely encouraged (Rule 3.3 of the Family Procedures Rules 2010 requires a court to consider at every stage in proceedings whether non-court dispute resolution is appropriate). However, public funding (legal aid) cuts has increased the role of private mediation, particularly religious mediation and this has partly proliferated gender discrimination.
This project addresses current contemporary issues from a socio-practice-based and an academic perspective – both are important to the way Muslim and Jewish women seek justice from Shari'a Councils (SCs) and Jewish Beth Din in the UK, particularly, 'egalitarian justice'. The author discovered through her doctoral research that it is not Islamic laws per se, but the interpretation of religious scholars within SCs and adoption of non-egalitarian approaches that proliferates discrimination and power imbalances within family dispute resolution.
The aim is to undertake a legal-interdisciplinary and comparative research project with reference to mediation forum under English law (Family Proceedings Rule 3.8 (1)/(2) sets out the circumstances in which the requirement to attend a Mediation Information Assessment Meeting (MIAM) does not apply) and religious family dispute resolution (RFDR) (Bano, 2017; Patel, 2017; Bowen, 2016) and power imbalances (Webley, 2017 and Beskine, 2017) in religious dispute resolution among Muslims and Jewish in the UK. This will be with reference to divorce/domestic violence and financial agreements reached through RFDR (Muslim women) approaching SCs, Jewish Beth Din and civil family courts. This is to be done by interview studies with women, refuges, SCs, mediators, English lawyers and drawing upon case files consulted during the author's doctoral research in general to analyse and compile statistics. The methodological approach will be socio-legal combined with multi-sited ethnography.
This project examines new approaches to justice in law with reference to egalitarian models (meaning, traditionalism versus egalitarianism) within SCs and Jewish tribunals (both notions of law and justice are contentious from a philosophical perspective and this project looks at this and what is law? What is shari'a or Islamic law and Halakha (H.L.A Hart, 1994))? A gap exists in the literature on the development of egalitarian models by Muslim women in religious family law (Barazangi, 2015; Mir-Hosseini, 2015, Chaudhry, 2016) and comparative study.
Some of the comparative considerations in this project are: the legislative process in the two jurisdictions so (state versus religious); legislation and enforcement of national laws and policies on divorce and financial settlements (this relates to unregistered marriages or void marriages – rights under sections 11-12 Matrimonial Causes Act 1973/ Marriage Act 1949, Divorce (Religious Marriages) Act 2002); remedies under criminal (Domestic Violence and Crime Act 2004) and civil English laws (Equality Act 2010); awareness campaigns – on both civil, criminal and religious rights; and egalitarian models to achieve gender equality.
The potential impact of this research would be to: create awareness of egalitarian models within RFDR; create a framework for egalitarian models to work in partnership with civil family courts; and to contribute to a body of knowledge in the field.
Finally, this project seeks to work in collaboration with Cambridge's other teams and the outcome is two-fold: to produce a book project (an edited volume of papers drawing upon gender, religion, the state that deals with Muslim and Jewish women). There will several contributors through two different workshops to be organised during the project.
The second purpose is to produce a report for policy impact to reflect on the empirical evidence gathered: women's experiences with SCs and Jewish Beth Din; tribunal/SCs staff's reflection on the service they provide: divorce and family dispute resolution; NGOs experience of working with these tribunals/SCs and finally, legal practitioners and mediators' dealings with these tribunals/SCs.
At the end of the project, it seeks to create a harmonious egalitarian model (s) that can work with civil family courts and uphold women's rights within religious family dispute resolution.
This article is written by Dr Naheed Wali Ghauri, Non-stipendiary Visiting Fellow at the Woolf Institute and an Associate Research Fellow at Birkbeck College, University of London.
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