Combining UK and Islamic law

[ivanava]

But we are bordering into a grey area argument here. The solicitor is a service provider. He cannot tell what his client to do. He has to support what his client wants. As a service provider, he cannot turn a person away because of their religion, and this is governed and enforced by the recently updated Equality Act. Does that make sense to you ? To me, they are just protecting themselves so that they do not land into legal hot water. Nothing more to it than that.

 

Maybe muslims have been turned away before in the past, and that is why there had been dedicated muslim solicitors who deal with this kind of thing. Because if this is the case, then we are going back to that good old hair dresser example again about discrimination without intent or actually realising the remit of the law itself for business owners.

 

Solicitors are asked by employers often anyway with regards to Employment Act. You forget that as a solicitor, they are still needing to act impartially too. Without biases. I know this because I once had to deal with an employment issue, and I understood what the lawyer was doing, without being implicit. He follows my instruction and can only answer what I ask, in accordance to the law, but without advice on how he wants me to deal with the situation.

 

No one as said they should turn them away, all the solicitor needs in order to write the will is the list of people their clients want to leave money to and the amount for each person, this information should be given to the solicitor by the client, it shouldn't be the solicitor advising the client on who to leave it to.

[999tigger]

The client must surely already know their own religious beliefs, so why would the solicitor need to know them.

 

---------- Post added 27-03-2014 at 19:42 ----------

 

 

So explaining that they can leave their wealth to any one they like should be enough.

 

1. So that the solicitor can make sure the will is sharia compliant as well if that is what the client wants.

 

2. A solicitor would need to draft the will and then run through it with the client to confirm the property is being distributed in the way he wants.

[salsafan]

FYI Zamo.

 

I found this article from an American Solicitors on what is classed as "Sharia Law". It is indeed interesting, as it really only cover a certain aspect of the legal system. e.g. Family Law.

 

At a practical level, however, Sharia law in Oman is manifested principally in family law matters such as marriage, divorce and inheritance (Miraath). In family law, Sharia law actively governs and all matters are carried out strictly in accordance with Sharia principles.

 

When it comes to the Omani law governing commercial matters, however, Sharia law typically supplies guiding background principles rather than specific rules.

http://omanlawblog.curtis.com/2011/04/sharia-law-in-oman.html

 

This is going to hurt my brain. It gets quite complicated.

I did wondered how US or UK have traded with other countries where Islamic Law already applies, and this is why. Because the Commercial Law is quite similar.

 

By the way, I noted that this is just an article about Oman's Law only. It seems that other countries may have far more complicated structure also too. For example, take Malaysia into account. Only a few of their states follow Sharia Law. The rest of the country does not. So how do citizens actually live in that country ? As above, Sharia only really affect the Family Law when compared to Common Law of other countries.

 

Here is also a list of countries with the different type of laws in existence.

Common Law, and Civil Law are the main legal system for many countries.

http://en.wikipedia.org/wiki/Common_law

Edited March 27, 2014 by salsafan

[ivanava]

If the client says it wants it to be Sharia compliant, then the solicitor needs to know what that means. He then draws up an English will with that in mind.

 

If a client asks who to leave money to then the solicitor needs to treat that at arms length and merely give generic advice about people they could consider. Its really down to the client. the solicitor really is just there to give effect to the clients wishes.

 

Sharia determines who gets what, so in affect if the client doesn't understand sharia it will be the solicitor telling the client who will get the money and maybe even explaining why.

 

The solicitor would be in the position in which he as to explain why the daughter gets less than the son, why one son can't have anything, why the mother and father get more than the wife.

[salsafan]

No one as said they should turn them away, all the solicitor needs in order to write the will is the list of people their clients want to leave money to and the amount for each person, this information should be given to the solicitor by the client, it shouldn't be the solicitor advising the client on who to leave it to.

 

Yes, but the question is, should the solicitor also force a non-Sharia list of distribution of wealth onto the client ? My guess is a "no". Solicitors are there to provide advice and to support.

 

I agree with what the others have said before about this being a marketing thing because in a way, anybody can write in their own adverts "we can write sharia wills", and try to get more businesses that way, but when in reality, all solicitors can indeed write a will. Maybe some solicitors thought that it is far more complex than it seems. I don't know. We are really grasping at theories now and guessing what could have happened.

 

---------- Post added 27-03-2014 at 19:58 ----------

 

Anyway, why are we going into this level of details ? I am not a solicitor.

[carosio]

A solicitor (or any person of legal age) can draft any will they like, it is in the executing process where the problems might emerge. For instance, you could put "I leave everything to the Church of England", or "I leave everything to any Christian Church but not Islam". Again, "I leave everything to the BNP", or I "leave everything to any person provided that they are white".

It's unlikely that a professional will writer would draft the latter two in that form.

 

Here's an interesting article from The Telegraph:

 

By Sadikur Rahman7:49PM GMT 23 Mar 2014

 

The Law Society’s decision to issue a practice note to solicitors who may be interested in drafting “Sharia-compliant” wills for their Muslim clients is shocking.

Even before we consider the technical issues surrounding the drafting of wills and gender discrimination inherent in Sharia inheritance provisions, the Law Society seems to be endorsing different sets of a laws for different groups of people. The idea of equality before the law is being dangerously undermined.

In Britain, unless you draw up a will, your estate on death will be distributed according to the rules of intestacy. I accept that people can do whatever they want with their assets, and it has always been the case that a lawyer must follow the client’s instructions. But this guidance legitimises discrimination towards women, “illegitimate” and adopted children, and non-Muslim partners or offspring who may be the result of inter-marriage.

The key paragraph states: “The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised. Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death.”

 

It adds: “This means you should amend or delete some standard will clauses. For example, you should consider excluding the provisions of s33 of the Wills Act 1837, because these operate to pass a gift to the children of a deceased 'descendant’. Under Sharia rules, the children of a deceased heir have no entitlement, although they can benefit from the freely disposable third [the third of an estate that can be given to non-heirs or charities].

“Similarly, you should amend clauses which define the term 'children’ or 'issue’ to exclude those who are illegitimate or adopted.”

It is hard to overstate how irrational this is. The guidance advises solicitors how to discriminate and avoid equality legislation and, moreover, discriminates on its completion.

 

Of course, a person has always been able to distribute their assets in any way they choose, and a Muslim may legally have done so according to Sharia principles without letting the lawyer know the basis of the instructions. But the difference now is that a solicitor could offer this service and develop a product specifically designed for a Muslim client who wants to distribute their assets according to their religious requirement.

 

There seems to be no recognition of the fact that solicitors are being asked to use and accommodate instructions that, in any other circumstances, would be socially unacceptable. Suppose a client instructed that their assets should not go to a relative because they happened to be of a different race or religion. Would that be acceptable? Moreover, is there now to be pressure applied for assets to be distributed according to Sharia law on the death of a Muslim person who died intestate?

Will the authorities, perversely, then be expected to use these principles, at the risk of acting discriminatorily themselves? Anyone who thinks this is far-fetched need only to look to a recent supreme court decision in Greece, where this is exactly what happened.

 

Even accepting that testators have the right to act in a discriminatory fashion with their assets if they choose to, this guidance encourages solicitors to adopt a separate approach to clients who are deemed “different” – in this case, clients who are Muslim.

This is what is known as the “racism of lower expectations”. Furthermore, the Law Society has set the scene for further disharmony. The guidance also states that “there are specific differences between Sunni and Shia rules on succession. These differences are not covered in this practice note.”

In time, will the Law Society publish different guidance for different branches of Islam? Or different religions? Should it be the role of a secular organisation such as the Law Society to take a view on theological matters?

This raises serious questions about professional ethics and the role of the Law Society. The guidance seems not to recognise that there is a serious potential conflict between the code of conduct for solicitors and the guidance. Here is what the code – which all solicitors must abide by – says about equality and diversity: “As a matter of general law, you must comply with requirements set out in legislation – including the Equality Act 2010 – as well as the conduct duties contained in this chapter.”

 

In other words, it makes clear that solicitors cannot discriminate; yet this new guidance encourages us to facilitate discrimination in advising Muslim clients on how to draft their wills in way that is incompatible with equality legislation.

This is a dangerous precedent and legitimises a discriminatory practice that, without this guidance, clients may have been embarrassed to ask about. The Law Society’s endorsement normalises it and makes it acceptable.

That, in turn, will make it easier for calls to be made for such rules to be formalised, thereby opening the way for Sharia to permeate other areas, such as family law. The guidance should be withdrawn.

 

Sadikur Rahman is a solicitor and a member of the Lawyers Secular Society

[ivanava]

Yes, but the question is, should the solicitor also force a non-Sharia list of distribution of wealth onto the client ? My guess is a "no". Solicitors are there to provide advice and to support.

 

No one as suggested they should.

[999tigger]

Sharia determines who gets what, so in affect if the client doesn't understand sharia it will be the solicitor telling the client who will get the money and maybe even explaining why.

 

The solicitor would be in the position in which he as to explain why the daughter gets less than the son, why one son can't have anything, why the mother and father get more than the wife.

 

Well the solicitor is going to get various sorts of clients. If the client says sharia, but doesnt understand the implications then the solicitor will explain and also provide the draft copy.

 

Yes the solicitor would explain who gets what to the extent those principles divide the property. the client can then decide if thats how he wants it to work.

[ivanava]

Well the solicitor is going to get various sorts of clients. If the client says sharia, but doesnt understand the implications then the solicitor will explain and also provide the draft copy.

 

Yes the solicitor would explain who gets what to the extent those principles divide the property. the client can then decide if thats how he wants it to work.

 

The solicitor replies, "we can only write UK compliant wills which means you can leave your money to anyone you choose to leave it to."

[Dawn123]

Whats your opinion then Dawn 123?

 

I think it is a step back from justice. I think gays and women have equal rights in society and any change to this is wrong. The people who put this backward step into practice should be discussing their defense, for their upon coming trial, when charged, and not be using the legal profession to implement their primitive ideas..