Legal opinion: "To what extent is is permissible for Sharia law to be part of English law?"

To what extent is is permissible for Sharia law to be part of English law?

Sharia law is not part of English law. Sharia law is treated by English law as a foreign law. The courts sometimes need evidence of what foreign law is on a particular matter, in order to decide rights in accordance with English law. Foreign law is a matter of evidence to be brought before the English Court.

For example, if the question arises in an English Court as to the validity of a will made by a Muslim in Pakistan, evidence will be admitted as to the law which would be applied in Pakistan. The English courts would then apply English law to determine whether, if the will was validly made in Pakistan, it should be treated as a valid will in English law. The answer in fact is yes – see the Wills Act 1963, a part of English law.

Similarly, if the question arises in an English Court as to whether two persons were validly married in a Muslim country, the court would receive evidence of the marriage laws of that country, and then decide, as a matter of English law, whether or not the couple are validly married. See the Matrimonial Causes Act 1973 s. 14 and the Foreign Marriage Act 1892.

Although the English Courts may thus have to enquire what the foreign law is on a matter, this is a matter of evidence, a matter of fact. They will determine that as a matter of fact the foreign law says such and such. Then, applying English law to this fact, the court reaches its conclusion as a matter of English law on the issue it has to decide.

There is no question of the English Court applying Sharia law in this process. The English Court applies English law, and would not consider itself competent to apply any other law. In the same way, the English Court would be incompetent to apply French law to a dispute about a French property. Instead the English Court would receive evidence as to French property law, and apply that to the issue the English Court had to decide.

The foundations of English law include of course Acts of Parliament and the common law. Ecclesiastical law (the law of the Church of England) is part of the law of English Law, partly because the Church of England is the Established Church. The law of other Christian denominations is not part of English Law, but is treated as a foreign law. So, too, is Jewish and Muslim law. If the question arises as to the validity of a Jewish or a Muslim divorce, the court will hear evidence on the matter and decide as a matter of English law the answer.

An example of the English Court ascertaining Sharia law but applying English law is Basma Sulaiman Al Sulaiman v Walid Ahmed Al Juffali reported (2002) 1 FLR 479 and The Times, November 28, 2001. In this case the court heard and accepted the evidence of two experts on Sharia law that a Muslim talaq pronounced in England and Wales had the effect under Sharia Law of dissolving a marriage as soon as it was pronounced. However the court held that as a matter of English law a Muslim talaq was an informal divorce obtained otherwise than through a court and therefore could not be recognised in English law as validly dissolving the marriage.

The whole of England and Wales is under the jurisdiction of the Courts. The only way Sharia law could apply directly to a particular area would be for the jurisdiction of the Courts over that area to be removed, and for a Sharia court system to replace it. That would require an Act of Parliament to create a separate jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") in which the Queen's rule no longer applied. The constitutional and political implications of this are immense.

Dr James Behrens, Barrister
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