(2) what steps he is taking to ensure that English courts have the (a) resources and (b) expertise to exercise proper scrutiny of marriages and divorces completed under Sharia law which come before them;
(3) how many consent order forms were issued by his Department for approval by English courts of (a) marriages and (b) divorces completed under Sharia law in each of the last five years; and if he will place in the Library a copy of the necessary form;
(4) how many divorces completed under Sharia law and granted consent orders by English courts involved individuals under the age of 18 years in the last 10 years;
(5) how many marriages completed under Sharia law were referred to English courts for a consent order in each of the last five years;
(6) what estimate he has made of the number of marriages completed under Sharia law which were not referred to English courts for a consent order in each of the last five years;
(7) how many marriages completed under Sharia law were (a) granted and (b) denied consent orders by English courts in each of the last five years;
(8) how many marriages completed under Sharia law and granted a consent order by English courts involved individuals under the age of 18 years in the last 10 years;
(9) what estimate he has made of the number of divorces completed under Sharia law which were not referred to English courts for a consent order in each of the last five years;
(10) how many divorces completed under Sharia law were (a) granted and (b) denied consent orders by English courts in each of the last five years;
(11) how many divorces completed under Sharia law and granted consent orders by English courts were initiated by (a) women and (b) men in each of the last five years.
When a petition for divorce is lodged at a court the court requires information to ascertain that there was a valid marriage between the parties, and the grounds on which a divorce is sought. The religious affiliation of the parties is not included on divorce documents. Hence it is not possible to provide any statistics that relate to the parties' religion.
Marriages conducted in this country under Sharia law are not recognised in England and Wales unless they also comply with the provisions of the Marriage Acts. Therefore “Sharia marriages” are not a legal reality in this country and we cannot obtain statistics for them. We are aware that many Muslim couples undergo both a civil ceremony in a register office and a purely religious ceremony. The former is recognised but the latter is not. Increasing numbers of mosques are registered so that they can offer a joint civil and religious marriage ceremony. Section 55 of the Family Law Act 1986 allows parties to a marriage to apply for an order that their marriage is valid, or to allow “divorced” parties similarly to test the validity of their divorce. This provision is used rarely, and generally to test the validity of marriages contracted abroad and foreign divorces. A Sharia marriage contracted in this country which does not comply with Marriage Act requirements would not be validated.
“Sharia divorces” conducted in this country are also unrecognised by the legal system. The English courts do not approve divorces or annulments granted by any faith group, therefore no statistics are available for them. A Sharia divorce dissolves the religious “limb” of a marriage but leaves the civil marriage intact. This must be dissolved by a civil divorce. If no civil marriage has taken place then no civil divorce is required.
Consent orders differ widely according to what is required in each case. Therefore there is no standard form for a consent order. In a consent order relating to children the court can, among other things, make orders relating to contact, residence, a requirement that either parent do something or refrain from doing it, an order for expert reports or for contact activities or for review. In financial matters a court can deal with income, capital, pensions, assets and can, among others orders, make periodical payment, secured periodical payment, lump sum or property adjustment orders, pension sharing orders, and asset distribution orders.
The only orders that can be made during an extant marriage are an order for validity of marriage, as described above, or an order for judicial separation, which has similar effects to divorce save that the parties are still regarded as married, albeit legally separated. This type of order is usually used by those with a religious objection to divorce. Neither of these orders is likely to be made by consent.
Consent orders can be applied for following negotiations and an agreement reached by the parties directly, or with the help of lawyers, mediators, or a third party, which might be a Sharia council. Sharia councils operate under the statutory basis of the Arbitration Act 1996, established by the previous Government. The family court would be unable to tell whether an application for a consent order (whether within a divorce or in other proceedings) had been made as the result of negotiations conducted through a Sharia council, by the parties themselves, through mediation or by the intervention of any other third party. Applications for consent orders are generally filed by solicitors. In those circumstances the court can see whether the parties had the benefit of legal advice. However, even if lawyers have represented the parties, the court will still check consent orders to ensure that they appear to be within the range of orders that could be made had the matter been adjudicated in court.
There are many forms of alternative dispute resolution available to assist parties to reach an agreement in family cases, but whichever method the parties use; the principles applied by the court are the same. The court cannot simply ‘rubber-stamp’ an agreement in a family case, whatever the process by which the agreement has been reached, and judges can and do ask for further information where there is any doubt about the propriety of a proposed order.
Any proposed consent order submitted to the court, whether the product of an agreement by the Sharia council or not, might be made by coercion and it is the function of the judiciary to question any order which appears unfair.
An order which on its face involved an undue financial advantage to one party or set out arrangements for children which excluded care by or contact with one parent would be the sort of order which alerts a court to potential coercion and the need to ask for further information and, if appropriate, to refuse to make the order requested.
Court statistics do not include the ages of the parties at the time a consent order is made, although the information is available to the court when considering the terms of the order, and is one of the factors taken into account in making a decision as to the fairness or otherwise of an order. The Office for National Statistics' records show that between 1996 and 2005 only 18 women and no men under the age of 18 were divorced.