British Family Law up against Religious Principles

Nobody wishes to live in a state which, as time passes, becomes a jungle, where might becomes right and the whims of the mighty become the law. Nobody wishes to live in a state where states within the state are created and there is no secular body of law. Nobody wishes that but safeguarding the rights of minorities and respecting their ethical values is not only preservation of human rights but also brings about harmony in the region[1]. Laws are regulative of human activity but can also be repressive, because we natively abhor that which is repressive; we are all in some measure critical of law. Undoubtedly, it is difficult to speak of the ‘intersection’ of law and religion, since they are at a primitive level of differentiation. Legal Historians, like W. Seagle, have debated endlessly the question of how we can differentiate between primitive custom and primitive Law. A recent attempt on reconstruction of this issue has been made by H.L.A Hart, who speaks of “rules of recognition” and “rules of change” as constituting signs of the rise of law out of mere custom. For many peoples-though certainly not for all-the line between law and religion is a thin one. Law as an expression of a way of life with enforceable norms is matched by religion which gives divine sanction to both the norms and the way.[2]

Today, Britain has become home to various religious and ethnic groups, so as to say, it has become a metropolitan. Where there is so much diversity, the rights and customs of the minorities and their cultural practices cannot be negated. The impact of various high levels of social, religious and cultural radicals on the British law has been heatedly debated over the years. The debated parts are the clashes between religious values and the state law. The continuous use of the yardstick for a reasonable man fails to commemorate the cultural and behavioral code of litigants and affects the delivery of justice in English Law. Thus, the English law, until recently, totally failed to understand the religious and cultural values and failed to create an atmosphere deemed acceptable by all the people of all ethnicities, from various walks of life. This is called Legal Pluralism.

The dichotomy however remain as to how to create an atmosphere which gives the citizen a free hand in practicing his/her cultural and religious rituals within set boundaries. The English law does not recognize systems of personal law for different communities. However, it is recognized as ethnic customs  which accept these rituals as long as they don’t clash with the British law or if they do not violate any treaties to which The Great Britain might be signatory to.

In England, anti-discriminatory laws such as the Race Relations Act 1976 tend to safeguard the rights of the minorities by seeking to create equality in nearly all fields of life and curbing discrimination. This all is called multi-culturism. The failure of English Law to fully recognize each community’s rituals has agitated the people so much that a clear rise in this multi-culturism politics and the demand for segregated communities is seen[3]. One of those people who observed discrimination in the British society and made a call for accommodation religious and cultural practices into the English legal system was the famous legal anthropologist, Werner Menski, who said and I quote

If in the coming 50 years Britain is to maintain itself as a concrete

nation on the  world  map, then it  is  to  curb  discrimination and

racism and accommodate all religious ethnic groups in the society”

If one defines religion as ‘believes’ and ‘faith’, he will not only be doing injustice to himself but to the people at large or anyone who reads this paper Religion is a code of conduct, the way of living or the guiding principles that govern our lives and brings us back on the right path. No religion preaches terrorism, hatred, discrimination, racism or destruction of family life. Infact, all religions preach peace, maintenance of harmony, love and having a prosperous family life. Religions have changed lives in the past and today ‘sincere and true following’ of them probably remains the only fine line between good and evil.

Then, the question that whether or not the British family law should separate itself from specific religious principles, and only then it will be able to apply itself on the modern society in unreasonable. Modern society, where people have probably chosen to forget that they are accountable to a God, where people are far off from religion, and where social crimes and unethical practices have taken, and we talk of undermining the religion even more. What a pity!

This is Britain, the home to many religious and ethnic groups. We have Muslims, Hindus, Jews, Christians, Sikhs, Gypsies and Afro-Caribbean. They all are part of the federation. If we are to prosper further we have take the minorities along, and as Menski (2006) in his research writes, accommodate them with us and also not to forget that we have to curb ‘non-religiousness’ and once again let all the ethics preached by all the religions flourish again and let all religious communities have freedom to practice their religions in a safe environment. This also brings about peace and harmony in the region.

It has been observed that the failure to recognize every community’s separate religious identity and customs has given birth to militancy, extremism and ultimately terrorism. So, the remedy is simple, as mentioned above.

Yes, indeed it is true that as most of the religions were established centuries ago, some of their rules are difficult to apply on the modern society, nor has the law of the state been very successful in the modern society, especially when it comes to saving marriages (or limiting divorces) and family from being torn apart, which today has sadly become relevant to an infant’s play with dolls, where they marry and divorce every day. This is where the State Law needs to strike an understanding with the religious principles and adopt some of the good things being preached by all religions thus creating an atmosphere deemed acceptable by all.

In Britain, Family law covers divorce, adoption and parental responsibility. A comparison between Law and religion on these issues will be a clear indicator that one cannot survive without the other, and a strong commemoration must be established between the two.

First is the issue of marriages, which is a legal relationship between a man and a woman. All religions preach of marriages and most of them state it as a ‘legal unison of two souls’ and the sweetest of all relations, all of them bound both husbands and wives with some responsibilities and all religions basically prohibited the living of a man and a woman together unless they are married as it gives birth to unethical practices and huge social issues, but this is however, not prohibited by the British Law, which is were we see the first vast difference or contradiction between state law and religion. We all wish to see an atmosphere free from all social shortcomings; hence a need is felt for the British law to stricken itself.

The practice of divorcing has become a common thing in the west, especially Europe and North America. Divorce is the dissolution of a marriage or the end of a marriage. In most countries a divorce has to be legitimized by a court of law and the reasons behind the decision is scrutinized. An announcement or an annulment is considered enough to legitimize a divorce in British Law and the courts do not interfere unless it is a matter of spousal support or alimony, child custody, child support, or distribution of property. On the contrary, most religions speak of divorce as a last resort if relations between husband and spouse cross the limits of discomfort, however, before that all efforts should be made to make the couple reach some understanding and the marriage should be saved. Muslims are often criticized for polygamous divorces, but the truth of the matter is that all they try to do is to save the marriage and give the couple ample time for reconciliation. The British Law once again needs to adopt something like this in order to lessen the rate of divorces in the country which is creeping up as time passes.

To be fair to the British law, however, efforts were made to recognize separate religious ways of marriage and divorce. One such example is the Divorce (Religious Marriages) Act 2002 which enables the Jewish women to announce a Jewish divorce (‘get’) before the announcement of a civil divorce. It also enables the Muslim women to take self-asked-for divorce (‘khulla’).

In the case of child adoption, however, the State law has given more rights to the adopted child than any other religions. Most religions preach that the adopted child should be surnamed on his own birth father’s name and is not the heir to the adopting father and should not inherit any of his heirlooms. The state law protects adopted children and their rights, and once the adoption is finalized they have as many rights as a normal child has.  Adoption and Children Act 2002 has also attempted to formulate a code which will promote greater use of adoption, improve the performance of the adoption service and put the children at the centre of the adoption process. It aligns the adoption law with the relevant provsions of the Children Act 1989 to ensure that the child’s welfare is a paramount consideration in all decisions relating to adoption.Child adoption is an issue where the human rights play a significant part, and to some extent overshadow the religious principles. It is difficult to assess that under what circumstances these laws were formulated in the religions centuries ago, but today indeed the law has the upper hand on this issue.

The same thing is observed in the inheritance laws. Most religions preach in a little discriminatory matter as to how the assets of a man should be divided amongst his heirs if he dies without leaving a will, some say the daughter should get more than the son and some vice-versa. The state law once again holds the upper hand, and does not recognize any sex-discrimination in its laws of inheritance and the assets are divided equally. Once again, it is difficult to assess that under what circumstances these laws were formulated in the religions centuries ago, but today on the modern society, where neither of the genders is weak, it is difficult to apply them.

As far as the issue of parental responsibilities is concerned, a nearly balanced equation is witnessed. Parents are indeed responsible for their offspring’s brought up, as commanded by both law and religion. They are responsible for providing him/her with clothing, shelter, food, education, a healthy atmosphere to live in and all the basic necessities of life. Until a child reaches the age of maturity, the parents are solely responsible for their offspring’s actions. However, the rise in teenage crime is due to the leniency of the law on children, where they can register a case against their own parents just because they used their hands on him/her to keep the child under control. Indeed it is a pity that parents don’t even have that much right which is indeed what all religions provide. This is also the reason why the attachment between parents and children has lessened with the passage of time.

British law and culture has totally failed to provide reciprocation of this law. The children have no responsibilities on their parents under the law. As soon as the child matures, he/she leaves his old parents to rot never taking a look behind. It looks as if they apparently forget that how their parents brought them up when they were young, how they helped them when they were deemed totally helpless. To such extent has this problem grown that incidents have been reported where a child living a few counties away refuses to come over for his parent’s funeral due to his busy schedule and instead asks the local church to hold the services and burial. All religions preach children being responsible for their parents especially in the old age. Muslims are commanded in the Holy Quran to look after their parents and adhere to their commands and to pray for them. It is written in the Holy Quran and I quote:

” O my Lord ! Have Mercy on my parents

and help them like they helped me when

I was young”

This is the one thing the British law and the western culture immensely lack. The British Law needs to inherit some of these values in order to make Family law a complete family package where rights of each member is recognized.

A quick recap of this paper clearly shows that the society cannot survive without both the religion and the law. The British law needs to make it self a bit more flexible in order to create a system which does not hurt the values of any of the religious and ethnic communities After all, the minorities in Britain is a good solid percentage in the overall population and they are all citizens of Britain and have a right to practice their religious preaching.

However, the answer to the question ” that whether or not the English family law should be separated from any specific religious principles and act as a secular body of law and only then will it be successful enough to apply itself on the modern society” is NO.

Religions teach us basic ethics upon which all ancient civilizations flourished and upon which all modern societies intend to prosper. The law should accommodate all religious ethics and give itself a better chance of dispatching justice even in the most complicated cases.

Britain is a free state, where the fundamental rights of a citizen have never been damaged. Citizens have always been free to speak, move around, cast their votes and practice their religions For the survival of a co-existing society where people from various ethnicities live side by side, it is important that the British law recognize their separate religious identities and believes.

This and only this can stop the politics of multi-culturism in the country and create an atmosphere of peace and harmony and prospering Britain, which can become a model state for all other countries facing the same problem.

[1] “All human beings are born free and equal in dignity and rights”-Universal Declaration of Human Rights 1948    art1.

[2] Religion And Law: Some thoughts on their intersection* Mulford Q. Sibley **.

[3] Ever since the Empire Windrush docked at Tilbury in 1948, providing the first supply of cheap labour to postwar Britain, the minority ethnic population has grown steadily until it is now around 4 million, comprising 7.1 per cent of the total population. (Office for National Statistics, Population Trends, 105, Autumn 2001).

 

Barrister Waqas Sarki did his bachelors in law from the Univerity of Manchester in 2008 and was called to the bar, at the Honourable Society of Lincoln’s Inn, on 22nd July 2010. He has been a legal advisor to a multi-million corporate firm for the last 2 years and is a specialist in Corporate and Commercial Law. During his time in the private sector he has brokered several settlements between his clients and the public sector, on the issues relating to Information Governance Laws.
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