This week the question of whether pre nuptial agreements should be made legally binding was raised in a report reviewing family law reform for the Centre for Social Justice. Hardly a hot topic you may think unless you happen to be fantastically rich and about to get married? Well actually such a proposal could effectively legalise a situation of grave injustice experienced by a number of Muslim women.
Although it may come as a surprise to many, the islamisation of family law in Britain is at the forefront of the strategy being pursued by some 'non violent' Islamist groups in the UK. Put simply, the strategy of such groups is to bring about a step by step alignment of British law with sharia - either by lobbying for changes to parliamentary law or by pushing test cases through the courts. Illustrative of this was a meeting that government ministers had with leaders of key Islamic organisations immediately after the arrest of a number of Muslims on suspicion of being involved in a terrorist plot centred on Heathrow airport in August 2006. The government ministers aimed to allay the fear that the arrests had generated in the Muslim community. However the Islamic leaders chose this occasion to make two wholly unrelated requests - Islamic festivals to be made UK bank holidays and a partial implementation of sharia in Britain in respect of Islamic family law. The then Communities Secretary, Ruth Kelly rather naively responded by setting up a commission to look into implementing the first of these.
However, if we are to avoid importing and institutionalising the injustices experienced by some women in the Islamic world, then we need to have our eyes much wider open to the agenda of 'non violent' Islamist groups than the present government has, and this includes even seemingly innocent matters such as whether pre nuptial agreements should be made legally binding in the UK.
Pre nuptial agreements (i.e. agreements made prior to marriage about what would happen in the event of divorce) are based on the assumption that two individuals are freely choosing to spend their lives together. However, in many non western cultures marriage is primarily viewed as being a union between two families, rather than simply between two individuals. A situation, which quite naturally leads to parents being involved in selecting a suitable husband or wife for their children. Now let me say straight away that there is absolutely nothing wrong with arranged marriages where individuals freely decide to follow their parents' choice. I have seen some wonderful arranged marriages that are at least as good as some individually chosen marriages. It needs to be said quite clearly that arranged marriages are emphatically not the same as forced marriages.
However, when marriages - and pre nuptial agreements - are arranged on the basis of sharia a real problem can sometimes emerge. In sharia marriage is regarded primarily as a contract between the two families concerned , a situation that in many ways creates a functional equivalent of pre nuptial agreements. However, sharia states that when a man divorces his wife, which he may do on almost any grounds, he must simply return her dowry - and unless the families agree to additional terms in the marriage contract, that is all the divorced wife may get. The husband keeps the house and everything else. Worse still, if she divorces her husband, for which there are much more limited grounds, she is likely to forfeit even her dowry and can be left both homeless and penniless - as the plight of all too many women in Islamic countries testifies. Such injustices must never be institutionalised in British law.
Whatever the merits of making pre nuptial agreements legally binding - and I remain to be convinced that they will actually strengthen marriage - such a law would unfortunately be used by a minority as a back door route to introducing sharia into Britain. The injustices that sharia imposes on women must never be allowed to be institutionalised in British law.