ISLAMIC LAW

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ISLAMIC LAW

Sharia compliance is to observe the Sharia as part and parcel of the daily life of a Muslim. The term Sharia is a reference to the Qur’an and Sunnah (which includes the Hadith). By the operation of the Sharia, Muslims are guided as to how they should live and treat others. The Qur’an is not always the primary source, as the Sunnah can abrogate verses of the Qur’an by way of Naskh, thus, making the two interchangeable. The recorded Sunnah (Hadith) falls into six Hadith books - 2 Sahih and 4 Sunan.

These Hadith collections have been subjected to the Hadith sciences of ilm al-rijal or asmā' al-rijal and some Hadith have required Ijma from the 5 schools/jurists as to the meaning. This has been done to ensure that the Hadith does not result in an unintended application causing an unintended abrogation. There are further relevant sources which support the Sharia; these being - Qiyas, Istihsan, Qawl-al-Sahabi, Maslahah Mursalah, Sadd al-dharia’h, Istishab al-ha’l, Urf and earlier scriptural laws. It should be also noted that Sharia as a system of laws is not practised across the Muslim world, nor is it a law of a particular land. Sharia often sits alongside Secular law.


Muslims by their vertical covenant with God are obliged to follow the Sharia, but this can be a difficult task given that many Muslims live in countries where the Sharia is not recognised as a law making it difficult to observe.
 

ISLAMIC MARRIAGES

Overview

One area where Muslims can comply with the Sharia is in terms of Marriages (Nikahs) as some marriages may be recognised. There are two main categories. Firstly, if the individual has married following the formalities of the Marriage Act 1949. Secondly, if they were married overseas in a country where the Nikah is recognised. However, a Nikah marriage which takes place in England & Wales will not be recognised if it does not follow the formalities and the parties will be regarded as cohabitees, but if it is followed by a civil marriage then it will be a valid marriage. Even if all the rules are complied with when it comes to a Sharia based Nikah marriage to make it a legally valid marriage, there are still issues when it come divorce as an English divorce will not end the Sharia based Islamic marriage, one still needs a Talaaq, Khula or Faskh to occur which often leads to inequality should a husband not issue a Talaaq.

The issue with Sharia based Nikahs are that they often fail to include all the terms which are designed to protect both parties. We can assist in the drafting of the terms of the Nikahs when it comes to the Dower, assets or the children as well as the use of Talaq al-Tawdid etc. We can advise pre Nikah as to the Dower, the usage of Talak al Biddat, Talaq al-Tawdid, Khula, and assist in drafting the terms of the Nikah, so that an informed decision can be made by those entering the Nikah.

In terms of an Islamic Marriage, we can advise in the following areas:

  • The creation of a Nikah should you wish to have a Sharia based marriage only
  • The position of the parties in regard to Talak al Ahsan, Talaq al Hasan Talak al Biddat, Talaq al-idda, Talaq al-Tawdid, Khula & Faskh; both pre and post marriage
  • The variation of any Dower post Nikah
  • The use of pre & post nuptial agreements to run alongside a Nikah
  • The position of the parties in regard to Talak al Ahsan, Talaq al Hasan Talak al Biddat, Talaq al-idda, Talaq al-Tawdid, Khula & Faskh
  • Assess if the Nikah process that is to be relied upon is a qualifying or non-qualifying ceremony in light of the Marriage Act 1949
  • Advise on the issues of Hadana, which is the custody of any children. The Mahr or the Dower when it is due. Khula and its process. Talaq including Talaq ul tawhid (the right of the woman to divorce)
  • The role of a Wali when it comes to marriage in light of the Forced Marriage Provisions
  • Advise on the enforceability of any terms of the Nikah under English law

Frequently Asked Questions

Why are not all Nikahs recognised? Marriages that take place in England & Wales without following the formalities of the Marriage Act 1949 are not recognised but where they have followed the formalities of the Marriage Act 1949, they will be recognised or if the Nikah occurred overseas in country where the Nikah is recognised, then the law of the land will recognise the Nikah as a valid form of marriage.

What if the Nikah ceremony did not follow the Marriage Act 1949? It will not be recognised as a legal marriage, so in the eyes of the law the individual is co-habitating, but Islamically they are married.

I had a Nikah, then I had a Civil Registry wedding, what is my position? You are legally married by way of the civil registry so you can ask the courts for a divorce, but the Islamic marriage will need to be terminated as well.

My Nikah is not recognised so what about the Dower (Mahr)? A woman is entitled to this as part of the Nikah and it should be paid regardless of it being recognised by the law of the land. Where it is not paid then the woman has the right to bring an action through the civil courts to recover the amount set as the Dower.

Does obtaining a divorce through the courts end the NikahNo, as the family courts can only end the legal marriage which is recognised by the Marriage Act 1949. The family courts do not have the power or the ability to end an Islamic marriage based upon a Nikah, it is still subject to the rules of Talaaq.

How to end the Nikah & the Registry wedding? If you are about to divorce or in the process of divorcing or have divorced by way of the family courts, then the husband can start the Talaq process; where a Talaaq Al Tawhid clause exists, then the woman could start the process.

What If there is no Talaq al Tawdid Clause & the husband is not willing to give a Talaq, then what can be done? A woman can request a Khula, this being her right and the husband should not withhold it and should he do so, the only option is act upon the Khula.

What is a Khula?  It is the right of the woman to bring to an end the marriage contractPrior to the advent of Islam, a wife had practically no rights to seek a divorce from her husband. This all changed with Islam and the introduction of contract-based marriages, which allowed each party to terminate the contract. The man is given the power of Talaq and the woman is give the power of the Khula  as set out in Qur’an Surah 2, v. 229. There is a requirement is for the woman to return the Mahr or a part of it as a release payment.
Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to the Prophet and said, "O Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him)." On that Allah's Apostle ﷺ said (to her), "Will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet ﷺ said to Thabit, "O Thabit! Accept your garden, and divorce her once” • Sahih al-Bukhari, Vol. 7, Book of Divorce, Hadith 197.

What if the husband refuses to agree to a Khula? This is where matters become more grey, as a Muslim man should not leave a woman in limbo based upon his own relationship with God. Where this occurs, the only option is to seek a Faskh which is a judicial separation of the parties. The principle of faskh has it's roots in the view of Imam Maliki who viewed 4:35 “If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things” as requiring an intervenor and Ibn ‘Ashur view was that verse 4:35 makes it obligatory to appoint arbitrators in case of a continuing dispute between the spouses which is denoted as ‘shiqāq’ (breach or discord). It is in these circumstances that parties have to approach organisations such as the Sharia councils for advice and support. 

What if the Khula is agreed? As with all contracts a party has the right to bring that contract to an end. The power to end a marriage contract is given to the man on the basis of Surah 2, verse. 229 "If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom". On a woman seeking to terminate the  marriage contract and where it is agreed then, the woman has to pay the man.

  •  The Hanafi view is that once a woman gives her intention of seeking a Khula, the process starts. There is no requirement for the pronouncement of the Khula, provided it is clear what is being sought, so there is no need to follow a set formula to give effect to the non-judicial Khula (Faskh).
  •  The Shia have a procedure when it comes to the Khula, that being that two witnesses are required and the words such as al-khul and al -talaq are to be used.  Mughniyya notes a woman would have say to “I pay you this much for divorcing me” and the man is to respond by saying “I grant you khul for it”. To be valid they require a Khula to be unconditional.

The Effect of the Khula? According to the Hanafi  school the Khula is  regarded as a Talaq Win ba in bainunah sughra’ (irrevocable divorce)  which then prohibits a man coming back to the wife without her consent which is the logical position as pointed out by Ibn Rushd “What is the point of the wife paying Khul compensation to her husband if he has the right to come back to her even if she is in her Idda?”. A Khula is on par with a husband giving one divorce and it can be an immediate request or one which is conditional, but it is not regarded as talak.

 

ISLAMIC CONTRACTS

Islamic contracts are based upon the Sharia and are becoming more common. However, drawing up of a Sharia based contract which is enforceable in the courts can be difficult given that the Sharia is not recognised as an actual law. We can advise and help to devise business related contracts, which sit within the parameters of both the English law and Sharia, meaning that a person could still turn to the civil courts to seek enforcement.

For a valid (batil) Sharia based contract to arise there has to be an offer (ijab), acceptance (qabul), consideration, consent, capacity (ahliyyah), the object of the contract is not illegal, there is no misrepresentation products are free of defects, good title and there is a right to rescind. A Sharia based contract can be oral or written but overall, they are written given the wording of Verses 2:282 and 24:33. On the face of it, the laws employed for the creation of contract are similar but they are not the same. A contract in the eyes of the English law is regarded as a part of the laws of obligations, which has it's roots in the legacy of Roman Law. The differences between the English and Sharia based Islamic contracts is that one can contract to marry under Islamic law provided there is an offer, acceptance, parties are competent, consent and there is a Dower and a Sharia based Islamic contract is created under the auspice of God laws of social justice & fairness. There is a spiritual and moral obligation to do right, as Muslim accept that it is God who creates wealth and gives it (Verse 6:151).

The Prohibition of Interest: The rationale behind the principles of not using interest (Riba) extends to contracts. Riba is regarded as causing an imbalance in wealth distribution, as well as having a negative effect upon the economy as a whole, which in turn affects society at large. This is why contracts which are speculative in nature (Maysir), involve gambling (Qimar), where the object is not legal (mubah), the cause is not legal (sabab) are prohibted.

Contracts have to be conducted in a just and honest manner which means that they cannot offend the principles of Gharar which is regarded as “potential deceptive ambiguity”. Gharar is where information has been withheld exposing a party to a needless risk or where the contract creates an imbalance favouring one over another. Where Gharar arises, it will invalidate any contract unless it is minor in nature but should be avoided.  Hakim b. Hazim (Allah be pleased with him) reported Allah's Messenger (ﷺ) as saying "Both parties in a business transaction have the right to annul it so long as they have not separated; and if they speak the truth and make everything clear they will be blessed in their transaction; but if they tell a lie and conceal anything the blessing on their transaction will be blotted out" (Sahih Muslim Book of Transactions Hadith 3661).

A Sharia based contract cannot be rooted in anything which is prohibited in Islam and this extends to situations where a third party is engaged in activities which are prohibited.

Sharia based contracts come in a number of forms and we can advise on how to set such agreements up for those who wish to comply with religious obligations in the arena of commerce, business and partnerships.

Types of Islamic Contracts

Musharakah Contract

Musharakah’ is a word of Arabic origin which literally means sharing, this is not a word which you fill find in Islamic law. According to Mufti Usmani, the closet word which is used in Islamic law is Shirkat the meaning of which has been sub divided by Fiqh into Shirkat ul Milk (where two parties jointly own a property) and Shirkat ul-Aqd (where a mutual contract has arisen). Musharakah is the ideal form of Islamic financing according to Mufti Usmani.

Musharakah contracts are joint enterprise contracts where all the partners share the profit and loss in equal shares subject to the investment. Any ‘Musharakah’ contracts will be subdivided into Shirkat ul Milk and Ul Aqd.

Shirkat ul Milk will arise where two or more people decide to purchase an item through choice. Shirkat ul Aqd also known as a joint commercial enterprise is divided in to ul Amwal - a partnership with capital, A’mal - with services, & ul Wujooh - of goodwill.

Issues over any distribution of profit, capital investment methods, losses, capped losses, work rations, the liability of the partners, or termination all need to be addressed in line with the Sharia. 

Mudarabah Contract

“Mudarabah” is a special kind of partnership where one partner gives money to another for investing it in a commercial enterprise. The investment comes from the first partner who is called “rabb-ul- mal", while the management and work is an exclusive responsibility of the other, who is called muda.

Mudarabah is an Arabic word means a type of Islamic business partnership with specific conditions. Mudarabah is also one of the profit loss sharing Islamic contracts and under this contract, the first party, provides the money or capital, and the other party (entrepreneur) provides the labour, management, and experience. So, it is one party lending to another for a commercial venture.

A Mudarabah must meet the requirements of an Aqd and not be batil or fasid. All agreed investment will be the responsibility of the Rabb Ul Mal who has no right to engage in the management of the business. Any losses will be limited to the investment made by the Rabb Ul Mal and he cannot claim from the Mudrib unless it can be shown that there has been negligence on part of the Mudrib.

There are two forms of Mudarabah; the restricted form, where the funds can only be used in a particular or identifiable business (al mudarabah al muqayyadah) and the unrestricted form, where the funds can be used by the Mudrib as he sees fit (al mudarabah al mulaqah).

Depending on the version of the Mudarabah, any purchases made by the Mudrib belong to the Rabb Ul Mal, the Mudrib is only entitled to the agreed share of the profits on the sale made, the fact the assets which have been acquired by the Mudrib does not mean he has a right to the increase in the value of the assets. The Mudrib is not entitled to a salary.

Issues over division of profit, loss of profit, expenses, termination including any notice period for termination and the rights of investment by the Mudarib wants to invest need to be addressed pre contract being signed. 

Murabahah Contract

“Murabahah” is according to Mufti Usmani is a term of Islamic Fiqh and it refers to a particular kind of sale having nothing to do with financing in its original sense. It is cost plus profit agreement and the basic ingredient of Murabahah is that the seller discloses the actual cost he has incurred in acquiring the commodity, and then adds some profit thereon. This profit may be in a lump sum or may be based on a percentage. If the profit is not disclosed then this not a Murabahah, but a musawamah and where the payment is not made on the spot the agreement would have to be a Bai’ Mu’ajjal, for it to be a Murabaha the payment must be on the spot.

There are rules to such agreements which have to be complied with to make it Sharia compliant. We can help you deal with the issue of creating such an agreement.

Ijarah Contract

Ijarah is a term of Islamic Fiqh. Lexically, it means ‘to give something on rent’. According to Mufti Usmani the Islamic term ijarah is used for two different situations. It can mean ‘to employ the services of a person on wages given to him as a consideration for his hired services and it can relate to the usufructs of assets and properties. This is the form of Ijarah which will apply to the context of commercial and business transactions.

In essence, they are lease agreements but there are rules to such agreements which have to be followed to make them complaint with the Sharia; especially when it comes to the leasing of items. Compliance has to occur with the Sharia when it comes to the payment of rent, late payments, sub-letting etc which could infringe the rules on riba as well as the rules on Head Leasing. 

Salaam Contract

A basic rule of a valid sale under the Sharia is that the product must exist, the seller must have ownership and the seller must be in possession of the product physically or constructively which means if the seller of the product has not taken delivery of the product directly or through an agent then the product cannot be sold on. This rule can be avoided in the case of a Salam sale which is a sale where A agrees to supply B with a product at a future date in exchange for B paying for the product in cash and in full on the spot. A is the muslam ilaih B is rabb us salam and the cash price is ra’s ul mal, there must be a fixed date set for the delivery of the goods that were exchanged for the funds.

Salam was permitted by the prophet to allow the likes of farmers to sell their products before they had been harvested, in this way they could survive pending the harvest and then pay the financier with the goods harvested. 

Istisna Contract

This is the second exemption to the rule that the person selling the goods must be in possession of the goods at the point of sale. Istisna contracts are used in the sphere of manufacturing as opposed to growing products in the case a Salam contract in essence an Istisna contract is where A places an order with B to manufacture a specific product for B, where the specification are agreed and that the price is fixed and agreed.

There are rules on cancellation and at what stage it may occur – either party may cancel the contract by giving notice pre the start of the manufacturing process, but if the process has started then the contract cannot be cancelled unilaterally by giving notice. The price need not be paid on the spot and there need not be a fixed delivery date. Once the goods have been manufactured the customer then customer in the absence of a valid reasons should not reject the products.

We can advise on the following Sharia based contractual agreements

  • Musharakah which is a joint enterprise contract based upon joint financial investment.
  • Mudarabah which is a contract which is based upon investment which is not all financial.
  • Murabahah which a cost plus profit contract.
  • Ijara which is a leased based contract where a benefit is transferred.
  • Salam which is a future based contract where payment is made on the spot but the return occurs in the future and
  • Istisna which are contracts where goods are produced or manufactured to a specific requirements

We cannot provide any financial advice when it comes to Sukuks, mortgages or loans based upon the Ijara, Musharakah or Murabaha principles.

We will also seek guidance as and when it is required based upon the school that is being followed.

 

Guardians (wali)

A Guardian is usually a male relative who is also known as a wali. The role of the guardian is to protect those under their charge and to ensure that their best interests are catered for.

How many types of Guardians are there?

There are three types of Guardians for the person & marriage (Wilayat at-tarbiyya) and property (al-wilayatu alal maal), but the roles can overlap. Guardianship is not the same as Hadana (custody), although the two areas may overlap.

What is the need for a Guardian?

It is to ensure that those who are not able to manage their own affairs are looked after, it is akin to parental responsibility for a child or a power of attorney for an adult. It is a tool to protect the interest and the welfare of those who need it the most.

Marriage & Guardians

When it comes to Marriage, a Guardian has two forms power vested in them, a right of compulsion (al-wali al-Mujber) & a right without compulsion (al-wali ghair al Mujber). Although these powers may exist, they have to be read in light of the consent when it comes to marriage and they are rights are to be exercised line with the law or they may lead to a forced marriage taking placing.

Islam and Forced Marriage

Islam has not and does not promote marriages against one’s will, “Other women are lawful to you, long as you seek them in marriage, with gifts from your property, looking for wedlock” (4:24). The importance of consent is evidenced by the Hadith relating to Khansa' bint Khidam who was married against her will, the Prophet cancelled her marriage (Sahih al-Bukhari, Vol. 9, Book of Tricks, Hadith 99 ). Consent is essential as noted by the hadith of “A'isha (Allah be pleased with her) reported: I asked Allah's Messenger ﷺ about a virgin whose marriage is solemnised by her guardian, whether it was necessary or not to consult her. Allah's Messenger ﷺ said: Yes, she must be consulted. 'A'isha reported: I told him that she feels shy, whereupon Allah's Messenger ﷺ said: Her silence implies her consent” (Sahih Muslim, Vol. 3, Book of Marriage, Hadith 3305).

Silence does not equate to consent in all circumstances; silence will be deemed consent in the context of shyness as opposed to any other reason for remaining silent. The words of the Prophet are important as it is God who has created the laws, but God also states “And we have not revealed the book to you. Except that you may clearly explain to them those things in which they differ. And (as) a guidance and mercy for a people who believe” (16:64), Ibn Kathir (Tafsir Ibn Kathir Nahl, Page 82 ) notes the Qur’an was revealed to the prophet “to explain the truth to mankind”. The Hadith of A’isha has to be read into the following Hadith - “The Messenger of Allah ﷺ said: The marriage of a woman who marries without the consent of her guardians is void” (Sunan Abi Dawood, Vol. 2, Book of Marriage (Kitab Al-Nikah), Hadith 2078 ) which suggests that a Guardian has full control over whom a woman marries as consent has to exist.

A Guardian only has a qualified power to marry a woman- it was narrated from Ibn 'Abbas that the Prophet ﷺ said: "The guardian has no right (to force) the previously married woman (into a marriage). and an orphan girl should be consulted, and her silence is her approval." (Sunan an-Nasa'i, Vol. 4, Book of Marriage, Hadith 3265) and it is more explicit in following Hadith which is regarded as Hasan. It was narrated that Abu Hurairah said: “The Messenger of Allah said: 'An orphan girl should be consulted with regard to marriage, and if she remains silent, that is her permission. If she refuses then she is not to be forced”(Sunan an-Nasa'i, Vol. 4, Book of Marriage, Hadith 3272). If the marriage is forced then it can be cancelled which is no different to Section 12 Matrimonial Causes Act 1973.

Forced Marriage & the English Law

The English law defines a forced marriage as “… a marriage in which one or both spouses do not consent to the marriage but are coerced into it. Duress can include physical, psychological, financial, sexual and emotional pressure. In cases of vulnerable adults who lack the capacity to consent to marriage, coercion is not required for a marriage to be forced” Parties who are involved in forcing a person to marry can be prosecuted as it is a criminal offence under Section 121 Anti-Social Behaviour, Crime and Policing Act 2014. Those at risk of a forced marriage can seek protection from the courts.

Where a person lacks capacity, they too can fall into the definition of being forced into a marriage. The issue of capacity is governed by The Mental Capacity Act 2005 which assumes that a person has capacity unless it is established otherwise,

In order to show a person lacks capacity outward appearances are not enough. The test does the person lack the ability to make decisions for themselves which is subject to the requirements of the best interests of the person. The lower the IQ the more evidence will be required to show now only do have the ability to consent, but also have to ability to understand if their partner is consenting to having a sexual relationship.

How can we help?

We can advise Guardians as to the English law concerning their guradianship. This would ensure that thye remain within the law, reducing the risk of criminal action.

We can provide guidance to Guardians when it comes to compliance with the law on consent and capacity to ensure that they are not overreaching their positions or falling foul of the law when it comes to Forced Marriage provisions as well as the Mental Capacity Act 2005.

If you are at risk of a forced marriage or a victim of one, then you should;

  • Notify the Forced Marriage Unit or the Police or Social Services or any other relevant body immediately
  • If you are abroad contact the nearest British embassy and inform them
  • If you are unable to contact anyone, then request a third party to make contact on your behalf
  • Apply for a Forced Marriage Protection Order
  • If already married seek legal advice on the nullification of the marriage on the basis there was a lack of consent under Section 12 Matrimonial Causes Act 1973
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