He argues that English law allows Beth Din courts to settle disputes between Orthodox Jews according to religious (Jewish) law so why wont the English courts let Islamic law decide on the same basis; according to Muslim religious law?
Fortunately, UK law is not as blind as it often appears. In 2010, the Supreme Court recognised the validity of pre-nuptial agreements (including that that vary the division for marital property from the 50-50 split basis). But court added an overriding caveat in situations where one party had been pressurised into signing an agreement that disadvantaged them (or where the courts were of the opinion that the agreement was unfair), then such an agreement would be invalid (fundamentally unfair) and the settlement would revert to an more equal division.
Dr Ziba Mir-Hosseini (an expert on Islamic family law) points out that ‘Muslim law on marriage is fundamentally patriarchal and that a man can divorce a wife if she refuses to submit to his will.
Another factor arises in that whilst both parties may own property, the concept of marital property does not exist and this deprives the woman to the right to alimony.
Yet more concerning is the issue that arises over parental rights, under Islamic law the father automatically retains those rights, moreover, the woman looses rights if she remarries.’
As such, Dr Mir-Hosseini suggests, the Muslim law would be fundamentally unfair and therefore invalid. A stance I support.
An interesting jurist debate (I am in favour fo keeping religion out of the law all together – in much the same way was feminists rightly assert that language warps the law, religion has the same effect). However, is this not really a case of a problem with many religions: they are fixed and no updated and so lag behind modern western cultures?
I note too that Dr Al-Saffar represented himself in court. had he sought legal counsel, would he have adopted the same legal argument?