In 2008, the then Archbishop of Canterbury, Rowan Williams, and Nicholas Phillips, Lord Chief Justice of England and Wales, both suggested that the UK could consider, in Lord Phillips's words, "embracing Sharia law" because "there is no reason why Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution". Williams commented: "it's not as if we're bringing in an alien and rival system".
However, two recent widely reported cases of marriage between Muslim men and under-age girls raise troubling questions about these assumptions. One case in New South Wales where an imam married a twelve-year-old girl to a twenty-six-year-old man with her father's consent is before the court.
In another case involving a custody battle, however, a judgment has been made that questions the way Western jurisdictions interact with sharia marriage regulations, specifically in relation to the widespread practice of conducting private, unregistered religious marriages. A Sydney Muslim girl aged fourteen was forced by her parents to become the child "bride" of a twenty-one-year-old man. Her mother had told her she would "get to attend theme parks and movies and eat lollies and ice-cream with her new husband". Instead she endured years of sexual and physical abuse and intimidation before fleeing with her young daughter. Her story only saw the light of day ten years after her wedding when she pursued custody of her daughter through the courts.
This "marriage" was never registered with the state: it would have been impossible to do so because the girl was too young to marry under Australian law. A particularly troubling aspect of her story is that she reported her predicament to her school teacher, who under Australian law was a mandatory reporter of child sex abuse, but it seems no report was made, and no intervention attempted.
In passing judgment in favour of the woman, Judge Harman invited the authorities to take matters further: the "groom" could be presumably be charged by the police with sexual offences against a child and placed on the sex offenders register. He and the girl's father—who in accordance with Islamic tradition would have been the two parties to the marriage contract—could also be charged with trafficking offences. There would also almost certainly have been an exchange of money—the mahr—handed over by the man to the girl or her father in accordance with Islamic law.
The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, defines people-trafficking as:
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force, or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, [or] servitude … The consent of a victim of trafficking in persons to the intended exploitation set forth [above] shall be irrelevant where any of the means set forth [above] have been used.
The forced marriage of a fourteen-year-old girl, as reported in this Australian case, fits the definition of trafficking. The girl was transferred from the custody of parents to that of her "husband" by use of deception, and he then kept her for the purpose of sexual exploitation and servitude, controlling her by violence and threats.
Pru Goward, the New South Wales Minister for Community Services and Women, has reported that there are around a thousand cases a year across Australia of women and girls being trafficked into forced marriages. She stated, "No ethnic group has a monopoly on violence against women, but some groups experience violence against women disproportionately." Indeed. Some groups also perpetrate violence against women "disproportionately", and it might be more accurate to speak of "religious groups" rather than "ethnic groups". While there have been no official statistics reported on the religious affiliation of these victims of trafficking, it seems that a great many of the victims and the perpetrators involving in "marriage" trafficking have been Muslims.
Recent reports of a link between trafficking-for-marriage and Islamic marriages have not been limited to Australia. An investigation by ITV in the UK identified eighteen mosques—around one third of those approached by the reporter—where clerics were willing to conduct a wedding of a fourteen-year-old girl against her will.
Nazir Afal, Crown Prosecutor in the North of England, has reported that there are estimated to be 8000 to 10,000 forced marriages or threats of forced marriages of people against their will in the UK each year. Britain's Forced Marriage Unit handled 1485 cases in 2012, 35 per cent of which involved girls aged seventeen or younger, and 13 per cent where the girls were under fifteen. A British government survey found that hundreds of girls aged eleven to thirteen had simply disappeared from school rolls.
Governments have been very slow to tackle the trafficking of women and girls for the purpose of forced marriage. Kaye Quek, in a recent article in the British Journal of Politics and International Relations, argues that multicultural ideals prevalent in UK society have made the authorities reluctant to criminalise this practice: they have preferred instead to treat these liaisons as violations of the women's choice. Quek challenges the government's preference for seeking civil remedies to forced marriages, and suggests that this is giving rise to a two-tier system of rights, in which it is acceptable for Muslim women to be sexually assaulted through forced marriage.
In the case of forced Muslim marriages, a systemic problem is the widespread acceptance by the community of unregistered marriages: it is the lack of registration of such unions which makes marriage all the more dangerous for young women and girls, because registered marriages are subject to long-established age limits and procedures to establish consent, which provide a degree of protection to potential victims of marriage trafficking. The families and communities involved may consider such marriages to be legal, because they accord with their understanding of Islamic law, but the fact that these marriages are unregistered places the women and girls who undergo these ceremonies at higher risk of abuse.
Islamic marriage practices present multiple challenges to Western jurisdictions. The Koran states that men are the protectors of women (Sura 4:34). A marriage is normally a contract between two men: the male wali or guardian of the bride—usually her father—and the groom. In addition, to be lawful under sharia, a marriage must have two witnesses, and a sum of money, the mahr, must be given over by the groom. Marriage, thus contracted, is the transfer of a woman from the "protection" of one man to another.
If the wali is the woman's father or grandfather, he is considered to be a wali mujbir, literally a "forcing guardian", because he is permitted by Islamic law to force his daughter or grand-daughter into marriage. The word mujbir ("forcing") comes from an Arabic root which can mean "to set a broken bone", or, by extension, "to force". E.W. Lane, citing Arabic authorities, gives this explanation of the meaning of the word: "He compelled him, against his will, to do the thing … originally signifying the inciting, urging or inducing, another to restore a thing to a sound, right, or good, state." By this understanding, a forced marriage is an exercise of "therapeutic force", which is considered to be good for the woman. Like setting a broken bone, a forced marriage at a father or grandfather's behest "restores" the woman to her rightful state.
The Reliance of the Traveller, a manual of Sunni Islamic law from the Shafi'i school, states:
Guardians are of two types, those who may compel their female charges to marry someone, and those who may not. The only guardians who may compel their charge to marry are a virgin bride's father or father's father, compel meaning to marry her to a suitable match without her consent … Whenever the bride is a virgin, the father or father's father may marry her to someone without her permission, though it is recommended to ask her permission if she has reached puberty. A virgin's silence is considered as permission.
Note that The Reliance anticipates a context where a girl may be married off by her father before she reaches puberty; in this case it is not even recommended to ask her permission. In addition to fathers being permitted to force their virgin daughters into marriage against their will, Islamic law also permits polygamy and marriages of young girls, following the example of Muhammad, who consummated his marriage to Aisha when she was aged nine lunar years. (See Sahih Al-Bukhari, Volume 5, Book 58, Number 234).
In several other respects Islamic laws which regulate marriage, divorce and the custody of children render women vulnerable to abuse by their husbands and families.
Many Muslim states have enacted laws which limit the application of Islamic family law, for example by extending women's custody rights beyond those granted by the religion, requiring that a man seek permission from his current wife or wives before contracting further marriages, or limiting a husband's right to divorce his wife merely by a private pronouncement against her.
Because many features of Islam's marriage laws are incompatible with internationally accepted human rights standards, and some Muslim communities consider that Islamic law takes precedence over the law of the land in which they live, it is in the best interests of Muslim women living in the West if governments suppress unregistered religious marriages, and strictly regulate the conduct of Islamic marriages. All too often governments have legitimised and even rewarded unregisterable marriages through additional state benefits.
The phenomenon—and challenge—of unregistered Muslim marriages is by no means limited to Western states. The emergence of unregistered marriages as a social issue in the West is paralleled by the popularity of various kinds of marriage in the Middle East which evade the control of the state (see Consuming Desires by Frances Hasso). Although some Islamic countries require marriages to be registered with the state, many marriages go unregistered. For example, marriages known as nikah ufr ("customary marriages") have become popular among young Egyptian students who choose to live together as couples without the legal and social complications of a registered, public marriage. In Egypt a nikah ufr is in effect a clandestine religious ceremony, which normally takes place without the knowledge or consent of the bride's guardian, and without the husband having to pay a dowry. By this means a couple can protect themselves legally and religiously, for example against a serious charge of fornication, but not without risk to the woman. If the marriage contract is lost or destroyed, a woman may not be able to prove that the marriage has taken place, and if she becomes pregnant she may have no legal means of compelling her partner to support her and her child. A woman in an urfi marriage may also find it difficult to obtain a divorce, leading to the possibility that if she contracts a later marriage with another man, she could be convicted of polyandry or adultery, which are criminal offences in Egypt. In contrast, the man can marry again without risk, even if his urfi marriage is of unclear legal status, because Islam permits polygamy.
One of the challenges of the way sharia works in Islamic states is that the trend over recent decades has been to reinforce the principle that Islamic law takes precedence over state jurisprudence. In some cases national constitutions enshrine sharia law as above the constitution and the power of the state of legislate. For example, article three of the Afghan constitution states that "no law can be contrary to the beliefs and provisions of the sacred religion of Islam". This means that although a state may pass laws to regulate marriage, courts may not be able to declare unregistered Islamic marriages invalid, because official registration is not one of the recognised conditions in Islam for a marriage to be legitimate, and state law has no authority to overrule Islamic law. While states can discourage unregistered marriages in various ways—for example by denying certain kinds of legal privileges to unregistered couples—they are not able to deny the religious and hence social legitimacy of these contracts in a nation whose constitution grants sharia law precedence over laws made by the state, which Islamists call "man-made" laws.
A further difficulty with the ascendancy of sharia law in Islamic states is the complication of legal uncertainty, because issues in Islamic law are often subject to conflicting interpretations. For example, while the Hanafi school of jurisprudence states that a woman can marry without the approval of her guardian, subject to certain conditions, other Sunni legal schools consider such a marriage to be null and void. Thus a man and woman who contract a marriage without the permission of the bride's parents may or may not get the marriage recognised by the court, depending upon the legal opinion the judge chooses to follow.
In Western jurisdictions the regulation of marriages by the state is of comparatively recent origin. However, the idea of regulating religious marriages is hardly a new one. Public regulation of marriages in Europe was first enacted through canon (church) law: the Fourth Lateran Council of 1215 required all marriages to be announced in advance in a church by a priest, "so that if legitimate impediments exist, they may be made known". The Council of Trent (1545–63) refined the requirements further: weddings had to be conducted by the parish priest of one of the two parties; banns—an announcement of the wedding—had to be "published" during three major public worship services; there had to be at least two witnesses apart from the priest; and clergy had to keep a marriage register, a book in which they recorded every wedding they performed. Both Councils' rulings on marriage were expressly designed to prevent "clandestine" marriages. The Council of Trent justified its provisions by citing the case of a man, having conducted a clandestine marriage, abandoning his first wife, and marrying another woman publicly.
In England state regulation of marriage was first introduced in 1753, also for the reason of preventing the notorious abuses of clandestine marriage, which were to the detriment of women. The legal recourse was to target unscrupulous clergy, some of whom had been making a handsome living from conducting such marriages.
The Marriage Act of 1753, formally named "An Act for the better preventing of clandestine Marriages", took over some of the provisions of canon law, such as the requirement for witnesses, the publication of banns, and the recording of marriages in a parish register "for publick use".
The purpose of the 1753 Act was to ensure that marriage was a well-documented public event which helped protect vulnerable women and children from unscrupulous men by curtailing the practice of people marrying secretly. Clandestine marriages were considered objectionable because women who entered into them were more vulnerable to desertion and sexual exploitation. Their secret character meant that there was no public process of testing of the man and woman's marital status before the ceremony. It could also turn out later that there was inadequate documentation of the clandestine ceremony, leaving a woman without legal recourse if she was abandoned after becoming pregnant or bearing children. In the famous 1748 case of Creswell v Creswell a wealthy heiress, Anne Warneford, discovered that her husband had been clandestinely married twice before, which rendered her public marriage to Thomas Creswell void and their several children illegitimate, with no entitlement to their father's estate.
Under the 1753 Act, a minister of religion who conducted a clandestine marriage was punishable by transportation "to some of His Majesty's Plantations in America for the space of fourteen Years". To forge, alter or destroy a marriage register became a hanging offence.
Such draconian punishments as deportation, hanging, or cropping the ears of offending clergy—the latter penalty applied on the Isle of Man from 1757—may seem repugnant today, but the point is that imposing harsh penalties upon those who conduct unregistered marriages has a long-standing precedent in law. First the church and then the state introduced penalties to help ensure that marriages took place as public events and were officially registered, in order to protect vulnerable women and their children.
Unfortunately in recent years Western jurisdictions have been largely indifferent to the damaging implications for Muslim women of the creeping acceptance of sharia marriage practices, including the proliferation of unregistered marriages. Forgetting the hard-learned lessons of the past, a misplaced multicultural benevolence has caused authorities to turn a blind eye to the dangers of illegal religious marriages.
An example of such blindness was reported in 2001, when the Australian radio and television host Geraldine Doogue interviewed Sheikh Fehmi, a leading Australian imam, the Grand Mufti of Australia from 2007 to 2011. Sheikh Fehmi claimed that the Australian government had accepted unregistered polygamous marriages when it granted the right to Muslims to conduct weddings in 1968: previously the Muslim practice of polygamy had made the government reluctant to grant Islamic clerics status as marriage celebrants. Sheikh Fehmi reported coming to an understanding with the then Attorney General, Bill Snedden, that a Muslim man's first marriage would be registered, but the authorities would turn a blind eye to further marriages as long as they were unregistered:
Narrator: Muslims rarely marry outside their religious group and while this couple probably take it for granted they can have a wedding according their custom, in Australia this is a relatively new occurrence. Islam recognises polygamy so prior to 1968 Imams like Sheikh Fehmi were not permitted to celebrate marriages.
Sheikh Fehmi: It used to be at the time the late Mr Snedden he was the Attorney General. So I had a good meeting with him one day and tried to convince him that it is important for the Muslim to marry their own people. But he used to say to me, Well you know Sheikh Fehmi that you Muslims may marry more than one and when we are not allowed to let anybody here for have only one wife. I said to him, Listen to me please you may register the first one and don't worry about the second one. He laughed and said, All right we won't have anything to do with the second one. I stopped at the idea and at the time we had gained recognition from the Attorney General for all our Imams around Australia from that year onward.
Western jurisdictions originally legislated for public registration of marriages in order to prevent the very practice which Bill Snedden allegedly agreed to condone. This indifferent attitude to marriage is one reason why forced marriages are running out of control in the West, to the detriment of thousands of young Muslim women.
The reasons for preventing the practice of unregistered Islamic marriages are as valid today as they were in thirteenth-, sixteenth- and eighteenth-century Europe: to ensure that vulnerable women and girls are not coerced into marriages against their will, and to reduce the vulnerability of women to sexual exploitation and abandonment.
Many feminist scholars have criticised the institution of marriage and called for its abolition altogether. There is a decline in confidence in the institution of marriage across the West, and perhaps this is one reason why Western jurisdictions have become lackadaisical about policing illegal religious marriages. However, the fact remains that some forms of marriage are worse for women than others: these include concubinage, polygamy, and forced marriages in which girls are compelled to marry older men against their will. Such "marriages" stand worlds apart from the long-established ideal in Western jurisdictions of two adults entering into a publicly registered lifelong exclusive marriage covenant of their own free will. The reasons for the state to regulate marriages apply equally well to unregistered unions contracted by minority religious groups today as they did for Church of England marriages in the mid-eighteenth century.
Western nations need to take firmer measures to deter a variety of marriage-related practices condoned by specific interpretations of Islamic law, including polygamy and the trafficking of under-age girls into forced marriages. Such measures must not only target the "grooms" and the walis; they also need to target marriage celebrants, as in the Marriage Act of 1753. It should be illegal—with criminal penalties—for a registered marriage celebrant to conduct unregistered religious marriage ceremonies.
Governments should also make it illegal for marriages—even unregistered ones—to be conducted by anyone except in conformity to the marriage laws. Celebrants who conduct extra-judicial marriages should be stripped of their licence to conduct marriages and they should be denied tax-deductible charitable status as ministers of religion. Those who conduct unregistered forced religious marriages should feel the full force of the law by being charged with criminal offences under anti-trafficking and anti-paedophilia legislation. Male relatives who act as walis for forced marriages should likewise be prosecuted for sex trafficking. Furthermore, religious organisations who employ someone found guilty of conducting an illegal religious marriage should be made criminally culpable and stripped of their charitable status if they cannot show due diligence in preventing their staff from conducting illegal marriages. The witnesses of illegal marriages should also be made culpable for their actions: if witnesses are aware that the bride is under-age, or being married against her will, they should be prosecuted for aiding and abetting sex trafficking or paedophilia.
Modern states once again need to find the will to protect women from abusive "marriages" solemnised under the guise of religion by targeting those who conduct illegal Islamic marriages. There can be no place for complacency driven by multicultural political correctness. The Australian feminist academic Sheila Jeffries has rightly called the privileging of Islamic religious perspectives on women's rights "reverse racism". It is an unacceptable and dangerous fallacy that second-class human rights for Muslim women are good enough for them, simply because they happen to be Muslim. It would be grotesque if those who choose to speak up about the plight of Muslim women are accused of "Islamophobia". The true bigots are those who find the sexual abuse of Muslim women to be multiculturally acceptable.
Governments cannot afford to be negligent where Islamic marriages are concerned. The first victims of such negligence will be Muslim women. They are already being victimised in their thousands. Those who conduct or collaborate in conducting unlicensed religious marriages—whether they be the "husband", the woman's male guardian, the witnesses, or a cleric—must be made to suffer the full force of the law.
Mark Durie is an Anglican Vicar in Melbourne and a Shillman/Ginsburg Fellow at the Middle East Forum, Philadelphia.