Issues around Islamic Divorce
For Muslim couples in the UK who are contemplating divorce from an Islamic marriage under Sharia law, there is often confusion as to the implications of doing so, and how this compares to an English law divorce. In this article, we will explain some of the unique aspects of divorce under Sharia law, and how specific issues can be overcome.
What is a nikah contract?
Under Sharia law, marriage is entered into with a contract which defines the rights and responsibilities of both parties. One of the main aspects of this nikah contract is the commitment by the husband to pay his wife a dowry – a demonstration of his commitment, honour, respect, and desire to be married to her. The contract may also layout where the couple will live, provision of specific responsibilities, and whether the wife has the right to initiate divorce.
What is the role of the Islamic Sharia Council (ISC)?
The ISC is a UK charity which exists to help resolve marriage related issues by the application of Islamic family law. As such, the ISC only deals with Islamic marriages, not English civil marriages, and will ultimately make the decision regarding whether a certificate of divorce should be issued.
Crucially, the ISC will typically seek to effect a reconciliation between parties seeking divorce, acting in the role of arbitrator. In some cases, they may insist that specific conditions be met by either party, which if not adhered to may then lead to the granting of a divorce.
What is the Sharia law position on divorce?
The rules and rights pertaining to Islamic divorce can seem quite complex to the uninitiated; firstly, let’s consider the grounds for divorce.
The ISC defines the following as being grounds for divorce; whereby the:
- Husband suffers specific physical defects
- Husband accuses the wife of not being chaste.
- Husband is not traceable.
- Applicant embraces Islam, but the husband refuses to do so.
- Husband ill-treats the applicant or fails to fulfil his marital obligations or does not maintain her, despite having the means to do so.
- Husband doesn’t divorce his wife for one of the reasons mentioned, when so ordered by an ISC judge.
In addition, there are several forms of divorce which depend on whether it is the husband or wife who is initiating the process:
When divorce is initiated by the husband
Talaq: Divorce is most commonly initiated by the husband (a process referred to as ‘talaq’) and by doing so (either verbally or in writing), he is deemed to have broken the contract and hence must ensure his wife receives all of the dowries she is due.
Under this process, there is a defined waiting period of three months (‘Iddah’). Talaq requires the completion of an ISC talaq application form and the full payment of the dowry owed. Once the divorce is granted, either party can request a talaq certificate.
When divorce is initiated by the wife
There are three variants of divorce if it is the wife who initiates the process; these are as follows:
Khula: Khula applies where a divorce is initiated by the wife, and the parties agree on the divorce. The husband can request the wife return her dowry as she is deemed to be the breaker of the contract (assuming he was not at fault).
Faskh: If the husband is considered ‘at fault’, the wife may apply for divorce by providing evidence her husband did not fulfil his marital responsibilities, e.g. by not providing support, a separate home and conjugal rights to his wife. She may also argue that specific conditions in the nikah contract were not met – in this case, the ISC may grant a conditional divorce, and if the conditions remain unmet, full divorce will be granted.
Tafreeq: Where the wife separates and seeks the services of ISC due to oppression by her husband. The relevant authority will then dissolve the marriage contract through a process of annulment.
Are there potential conflicts between a civil law and Islamic divorce?
In some cases where a couple are married both under English civil law and also Sharia law, conflicts may occur if a husband agrees to the civil divorce but not the religious divorce. In such situations, the Divorce (Religious Marriages) Act 2002 (DRMA) makes it possible for the English Court not to grant a decree absolute until the Islamic divorce is in place. In practice, given the power of the ISC to dissolve the marriage based on the husband seeking a civil divorce, invoking the DRMA may not be required.
This article only covers the essentials of Islamic divorce, and as such, anyone considering or facing such circumstances should seek legal advice from a legal practitioner specialising in Sharia family law. Unlike English civil law, a number of options and considerations must be taken into account when proceeding with the dissolution of marriage under Sharia law. By seeking expert guidance before matters proceed too far, you can save yourself considerable anxiety, cost, and time, and, most importantly, achieve the best possible outcome for you and your children.
If you require detailed legal advice about Islamic divorce or any other Sharia law matter, please call us on 0808 168 6042. We are a Legal 500 firm.