Recognition of Shariah family law in the UK: assessing the application of Shariah succession within Scots law in theory and practice

Abstract

The practice of Shariah family law has been growing in the UK over the last few decades. This growth in practice has encountered a slow pace of recognition within the existing legal systems, which means that Muslims living in non-Muslim countries who wish to follow Shariah family law in their personal affairs, including marriage, divorce and succession, may face some obstacles in their ability to pursue these practices. This thesis seeks to clarify Shariah family law practices among Muslims and their recognition within the legal systems of England and Scotland. More precisely, this thesis concentrates on investigating the practice of Shariah succession among Scottish Muslims and its applicability to Scots law. This research utilises mixed doctrinal and empirical methods in examining the research issues. The first part of the thesis conceptualises the broad acceptance of Shariah law in Europe. It begins by examining in context how Shariah law practices are tolerated within the scope of multiculturalism. Subsequently, it moves to examine the process whereby the European Convention on Human Rights may lean more toward restricting Shariah practice, unlike Christian practices, because of the influence of Christianity in shaping modern human rights law. It examines a recent case in Shariah succession practice which may show some flexibility in the accommodation of Shariah family law practices. The second part of the thesis assesses the practice of Shariah family law within domestic and private international law. This assessment demonstrates how failure to recognise Islamic marriages and divorces in the UK impacts on the practice of succession. The last part of the thesis examines the perception of Shariah succession practice among Muslims in Scotland. An empirical approach was adopted because of the lack of case law and secondary literature in this area. It argues that despite the potential conflicts between Shariah and Scots law, an Islamic will could be applied within the framework of Scots law. However, it concludes that intestacy law may not be feasibly applied without the consent of all of the beneficiaries of the deceased’s estate. This thesis concludes that while Muslim heirs could maintain the rights assigned by forced heirship rules in Shariah law, other factors might hinder their wishes to apply those rules. This could be due to the amount and type of assets the deceased may leave, whereby applying the forced heirship rules may not satisfy the inheritance rules of Scots law.