The Law Society of England and Wales has withdrawn a controversial Practice Note setting out official guidance for solicitors who have clients wishing to prepare a will that conforms with sharia law. The Practice Note was published in March 2014 and was withdrawn only a few months later in November 2014 following protest from women’s rights and other secular groups. This provides a useful opportunity to consider the relevance of sharia law in England.
What is sharia law?
Sharia law is the Islamic system of law derived from the Holy Qu’ran and the teachings of the prophet Muhammed. In those states where sharia law is recognised as the official law, it is applied and interpreted by Islamic judges and religious leaders. Sharia law deals with many different facets of a person’s life, including the usual criminal, family, civil and property law, as well as “private” matters, such as prayer, hygiene and diet.
The Practice Note
The Law Society issued a practice note following numerous queries from practitioners as to how they should draft a will to take account of sharia law. The practice note made it clear that a will could be drafted pursuant to sharia law, as long as it complied with the Wills Act 1837. The practice note provided guidance for the drafting of a Sunni sharia will (as opposed to a Shia sharia interpretation of Islamic law). How is a sharia will different from the traditional English will?
- Heirs are divided into “primary” (for example: fathers, wives, daughters, sisters) and “residual” (for example: sons and brothers).
- A testator can choose to give one third of his estate to parties who are not primary or residual heirs, such as charities. The remaining two thirds is distributed among the primary and residual heirs;
- Non-muslims, adopted and illegitimate children cannot inherit;
- Any debts, including burial costs must be settled before the estate can be otherwise distributed.
A number of interest groups were concerned that the Law Society had produced a practice note that seemed to endorse a separate system of law from that of the law of England and Wales. Further, sharia law is complex and differs between different states, as well as between Sunni and Shia. Some would say that it is not for the Law Society to endorse a particular interpretation of the sharia law or to express an opinion about sharia law at all.
Sharia law often has the effect of causing men to inherit substantially more than women. Certain interest groups were unhappy that the Law Society was effectively endorsing a system of law the minimises the rights of women. For a legal perspective, commentators have noted that the sharia succession rules are such that it is not possible to know exactly who will inherit, or how much they will inherit until the testator dies, which creates uncertainty.
The withdrawal of the Law Society’s Practice Note does not affect your right to dispose of your assets in accordance with sharia law. The most important thing is that your will complies with the Wills Act 1837.
How is sharia law applied in England?
Sharia law is not compulsorily applied in England. However, it is possible to apply it in some circumstances:
- If both parties agree, the Muslim Arbitration Tribunal will apply sharia law (within the framework of the laws of England and Wales) to resolve a dispute without the need to attend a court. The Tribunal’s decision is enforceable in higher courts pursuant to the Arbitration Act 1996.
- Islamic banks are permitted to offer sharia compliant mortgages (as charging interest does not comply with sharia law). For example, a “Murabaha” plan, where the bank buys a property and immediately sells it to the “purchaser” for a profit. The purchaser will make fixed payments to the bank on the higher “profit” price.