Family Law Guide

Guide to Islamic marriage and divorce

Guide to Islamic marriage and divorce

A valid Islamic marriage requires mutual agreement, two adult witnesses and a marriage gift (mahr) to be paid by the groom to the bride. Many Muslim couples also have a marriage contract (nikah) in which they seek to agree the terms and conditions of their future together. These conditions are sufficient to create an Islamic marriage in accordance with Sharia law. If the marriage takes place in a country which recognises Sharia marriages as valid then in the eyes of English law the marriage will be valid. However, if the marriage takes place in England, this will not be the case unless the marriage takes place at a registered venue, such as a registered mosque.

talaq or ‘declaration of divorce’ is used to end an Islamic marriage. The rules vary significantly depending on the country in which this is performed and also as a result of a disparity between the different schools of Islamic jurisprudence. Under Islamic law, following the talaq, a period of waiting (iddah) is also required, during which the couple are supposed to try and reconcile. Should the iddah end without reconciliation, under Islamic law the couple will be divorced. However in England, whilst the talaq is the religious decree involved in divorce, a decree of divorce under the Matrimonial Causes Act 1973 must also be obtained to end any civilly recognised marriage.

Following an Islamic divorce, under Sharia law the husband will no longer be financially responsible for the wife, and will not have to pay her any capital or spousal maintenance (although he will still be responsible for financially maintaining the children of the marriage). As such, it is sensible to try to time the religious divorce to coincide with any arrangement for financial provision if possible, whether that is by agreement or in relation to the English civil law proceedings required to bring the civil marriage to an end.

If the divorce takes place abroad, it may be possible for the weaker party to make a financial claim against the stronger party in England, under Part III of the Matrimonial and Family Proceeding Act 1984. Proceedings under Part III have broadly similar remedies to bringing a financial remedy claim in England in the usual way under the Matrimonial Causes Act 1973. In order to bring a claim under Part III, you need to have had a valid marriage, a proceedings divorce (i.e. some judicial involvement in the divorce) and you must meet the jurisdictional requirements to bring a claim in the English courts.

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