Navigating Islamic divorce in the UK
Sobiah Hussain explores what legal practitioners should understand in Islamic divorce cases
Divorce can be a complicated and deeply emotional process, whether the relationship breakdown and subsequent proceedings are acrimonious or not. Even in cases where a separating couple are leaving the relationship on good terms, divorce itself can be difficult and long. This is especially true if a couple is trying to navigate a religious divorce as well as a civil divorce.
Many Muslim couples in the UK are only married under Islamic law, through a religious marriage, and have not had a civil ceremony. Unfortunately, the number of Islamic marriages in the UK is unknown as they are not legally recorded. Islamic marriages which take place in the UK are not recognised under UK law, so a couple would need to have a civil ceremony performed in order to be legally married in the eyes of the law.
In the UK, Muslim couples who have not have a civil ceremony are treated as cohabitees, with the same rights (or lack, thereof) as any other cohabiting couple. This means that should the relationship come to an end, whether through breakdown or if one spouse dies, there is no automatic entitlement to make any claims, this includes spousal maintenance, pension, capital, or any other financial claims.
Cohabitants are not currently afforded the same legal rights as married couples. Although reform has been discussed and pushed for in this area for some time now, it may be a while before we see any real change.
However, should a couple have married in a country where Islamic marriages are legally recognised, their marriage will count under UK law. Essentially, if the marriage is recognised in the country in which it was performed and conformed to the marriage regulations of that country, then it will be valid there and therefore legally acknowledged in the UK.
For example, if a couple marry in a country which has Sharia Law, such as Egypt, their marriage will be valid there as it is likely that it adhered to the relevant rules and practices. Should the couple then move to the UK, their marriage will then be recognised and, in the event of a divorce or the death of one party, the relationship will be afforded the same rights as a UK civil marriage.
There are laws in place, if the couple is only married under Islamic law, which protect children in the event of a familial breakdown. UK law makes no distinction between married and unmarried couples when it comes to child arrangements in divorce and separation.
In an Islamic marriage, a contract is signed called the Nikah. This is a formally binding document that outlines the rights and responsibilities of each party, almost like a prenuptial agreement. However, like a prenup, the Nikah is not a valid document in UK law.
If a couple choose to have a civil ceremony in this country, making their marriage legal in England and Wales, then in the event of divorce, the couple will then need to seek a civil divorce as well as a religious one.
If an Islamic couple want to get divorced, there are several avenues that can be taken. These depend on whether it is the husband or the wife seeking the divorce, and within this, what the marital situation is.
Islamic law does encourage couples to try reconciliation through the appointment of arbitrators. This is almost like marriage counselling.
If reconciliation is impossible and a divorce is desired, the process differs depending on who initiates the divorce proceedings.
In the case, that it is the husband who has asked for a divorce, the process is called Talaq. The husband is considered the ‘contract breaker’ and is therefore liable to pay the full Mahr (often referred to as a dowry) which is documented in the Nikah contract. The husband pays the Mahr to his wife, although some will pay it over a period, rather than in one lump sum. If the Mahr has already been paid in full, the wife is entitled to the entirety.
The husband can divorce his wife without her agreement. However, either ex-spouse can apply for an Islamic Talaq certificate – this is then used as evidence of the divorce.
If the wife wants to initiate divorce, she has three avenues available:
- Khula: Divorce is initiated by the wife and the parties agree on the divorce, or the husband is persuaded to consent. If the husband is not at fault, he can require the wife to return her Mahr to end the marriage, because she is the ‘contract breaker’.
- Faskh: Where the husband is at fault, the wife can petition for divorce with cause. She is required to offer proof that her husband has not fulfilled his marital responsibilities (as outlined in the Nikah). The jurist can grant a divorce against a husband unwilling to agree to a divorce.
- Tafreeq: The wife separates and seeks the services of an Islamic court, or more likely, the Islamic Sharia Council (ISC) due to oppression on part of her husband. The relevant authority can then dissolve the marriage contract through annulment.
The Islamic Sharia Council (ISC) was formed to manage the marital problems of Islamic couples living in the UK. It only deals with Islamic divorces and cannot grant a civil divorce.
When the divorce has been pronounced, there is a waiting period known as Iddah which is the length of three menstrual cycles. This is, in part, to determine whether the woman is pregnant. If she is pregnant, the waiting period extends until the child is born.
There are, however, certain criteria that must be fulfilled in order for an Islamic divorce to be granted. For example, the Iddah period needs to be observed and two witnesses must be present.
Some couples in the UK are married both under Islamic law and have also had a civil ceremony to legally recognise their marriage. This does mean that if the couple wishes to divorce, they must complete two separate processes to dissolve their marriage. Essentially, this works the same way as any UK divorce and can be extremely amicable, or acrimonious and lengthy, depending on the couple.
Until a civil divorce has been completed, even if the religious divorce has already been granted, the couple remain married in the eyes of UK law.
Matters can work in the opposite way, where, for example, the husband desires a civil divorce but refuses to grant a religious divorce. In such cases, the wife may be able to apply to the Family Court under the Matrimonial Causes Act 1973, requesting that a Conditional Order is not granted until the religious divorce is pronounced.
In cases where a husband has failed to pay the wife her Mahr in line with the Nikah contract, where there is also a civil marriage, the wife is able to make an application for financial remedy seeking the return of her Mahr. Under Section 25, Matrimonial Cause Act 1973, the marriage contract can be considered by the court to ensure fairness. If the wife is unsuccessful in financial remedy proceedings or did not enter into a civil marriage, she may be able to issue a claim for breach of contract.
Islamic divorce is a relatively underreported topic in the family law circles. This is possibly due to the lack of real figures on how many Islamic marriages there are in the UK, and therefore on divorces too. However, it is important that family lawyers understand the various factors involved in Islamic divorces and how they interact with civil divorce.
Sobiah Hussain is a Senior Associate at Stowe Family Law