Islamic Divorce

In an increasingly cross-cultural and global society, the complexities around divorce proceedings in England and Wales can be magnified. There are particular considerations around Islamic law and its intersection with the law of this country, surrounding both the recognition of these marriages under both English and Islamic law, with each having their own provisions for marriage and divorce. 

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Is an Islamic marriage recognised in England and Wales? 

Unlike ceremonies that conform to the Church of England, Judaism or Society of Friends, Islamic weddings performed in this country are not recognised here if there is not a separate civil ceremony. A  2018 Independent review into sharia law however found that Muslim couples often fail to register their religious marriage. Normally the marriage involves the signing of the Nikah (a marriage contract). Without a civil wedding ceremony, the marriage is not recognised in this country and if the marriage breaks down, the couple will have limited options in relation to how the English courts can assist since it is regarded as a “non-marriage”. This will depend on whether there are: 

• Children (allowing for a claim under Schedule 1 of the Children Act) 

• Owned property (allowing for a claim uder the Trusts of Land and Appointment of Trustees Act 1996) 

Non-marriages, as opposed to void or voidable marriages, are deemed as having no legal consequence, rendering the court unable to redistribute any of the marital wealth when these relationships end. This is unlike void or voidable marriages, which are considered as having enough of the hallmarks of a marriage to trigger this financial ordering process.  

Further to this, laws and processes must be followed under Islamic law for the dissolution of a marriage to be effective, lest the parties remain bound within the marriage. It is therefore crucial that the parties consider both the religious and civil procedures for divorce to ensure that the divorce is recognised. 

Methods of Islamic Divorce 

There are three main methods of Islamic separation, with talaqs being initiated by the husband and the other two being initiated by the wife: 

• Talaq 

• Khula 

• Faskh-e-Nikah 

TALAQ 

Talaq allows the husband to release his wife from their marriage.  The husband initially applies to the Islamic Sharia Council who will contact the wife to see if she would like to take part in mediation to see if the couple can be reconciled. Where this does not happen, or the couple still wish to separate then the Talaq is issued once the payment of the Mahr has been paid.  

Following this, there is a three-month waiting period (Iddah). The husband continues to be financially responsible for the wife during this window and can, at any point, elect to reconcile with the wife before the expiry of the three months. One this period has passed, the Council issues the divorce certificate to the parties. 

There is a version of instant divorce that has been recognised in India. This allows the husband to repeat the word talaq three times (including in an email or text). Most Islamic countries do not recognise this form of divorce and a divorce performed abroad in this manner is not recognised in England and Wales (except in Azad Kashmir). A husband can delegate his right to divorce in this way to his wife or a third party. This could be done at the time of the marriage or a later date. Once it has been granted, the husband cannot revoke this right. 

KHULA 

This form of divorce is initiated by the wife, but the husband has to agree. This may be dependent on the return of the wife’s dowry returned (Mahr). Where both parties agree then the marriage is ended. 

FASKH-E-NIKAH 

In cases where the husband does not consent to a divorce the wife may apply for a divorce to the Sharia Council for a Qadhi to dissolve the marriage if the husband is not fulfilling his wife’s rights, which includes the husband refusing to give Talaq where there are clear grounds to do so. It involves a qualified Mufti investigating the case before offering mediation to attempt to find a solution.  

If this finding of fault indicates that the husband has fallen short of his Islamic marital obligations, a divorce will be granted. Where the husband has not otherwise fallen short of such, the wife can apply for a conditional divorce. This gives the husband an opportunity to rectify whatever fault she has stipulated, and where this is not rectified, a divorce will be granted. 

RECOGNITION OF ISLAMIC DIVORCE IN THE UK 

It may be that the parties divorce in a jurisdiction where Islamic divorce proceedings simultaneously fulfil the civil requirements of a divorce, for example in Sharia law jurisdictions. Should this be the case, the Family Law Act (FLA) 1986 affords recognition to overseas divorces provided they are obtained by “judicial or other proceedings”.  

The Muslim Family Law Ordinance 1961 sets out the requirements for the recognition of a full talaw divorce performed abroad (as set out above). The overseas divorce is recognised here if: 

• It is effective under the law of the country in which it was obtained 

• At the relevant date, both parties were domiciled in that country, or one was and the other in a country that recognises the divorce 

• Neither were habitually resident in the UK for one year before the divorce date