Divorce can be a complicated and emotional process, particularly so if you are trying to navigate the processes associated with religious divorce in addition to a civil divorce.
Many Muslim couples in the UK are married solely under Islamic law, through a religious marriage. This does, however, mean that the marriage is not legally recognised under UK law. The actual number of Islamic marriages in the UK is unknown.
Couples who have an Islamic ceremony in the UK and do not have a civil ceremony to register the marriage under UK law, are treated as cohabitants if the relationship breaks down, or one party passes away.
At the moment, cohabitees have no automatic entitlement to make claims in the event of relationship breakdown, including financial, capital, spousal maintenance or pension claims.
Islamic Divorce
Islamic divorce can be initiated by either party. However, different procedures are followed depending on whether the husband or the wife wishes the divorce and within this, whether the marital contract (Nikah) has been adhered to throughout the marriage.
However, before divorce is initiated, Islamic law does encourage couples to appoint arbitrators to help with potential reconciliation, similar to marriage counselling.
If the couple is also married under English law, a civil divorce must be sought alongside the religious divorce.
Should the husband wish to initiate divorce, the process is called Talaq. In this case, the husband is the ‘contract breaker’ and must pay the Mahr (also known as a dowry, paid to the wife only) in full should it have been deferred in part or full, or allow the wife to keep it entirely if has already been paid.
In cases where the wife wishes to initiate divorce, a different process follows, and she must seek the divorce from a Sharia Council. There are three types of divorce process, depending on whether the parties agree on the divorce, whether the husband has broken or failed to fulfil the agreements made in the Nikah or if the wife is suffering oppression.
These are: Khula, Faskh and Tafreeq.
The Islamic Council provides in depth information into the various types of divorce available for Muslim couples.
Civil Divorce
If the couple are married under English law as well as Sharia law, a civil divorce must be sought alongside the religious divorce.
A number of resources can be found across the Stowe Family Law website, including how to get divorced.
In some cases, a husband may want a civil divorce but does not agree to grant a religious divorce. However, within the Matrimonial Causes Act 1973, an application can be made to an English court requesting that a Conditional Order is not made final until the religious divorce has been pronounced.
If the husband has not paid the Mahr in full, should the couple also be legally married in the UK, the wife can seek to recover it by making a financial application to the Family Court as part of the overall financial settlement. In cases where the couple is married only under Islamic law, the wife may be able to issue a claim for breach of contract, especially where there is a written marriage contract with a stipulated sum.
It is important, if you are seeking an Islamic divorce, to seek support from the Islamic Council, which is a charity set up to solve the matrimonial problems of Muslims living in the UK. This body can dissolve an Islamic marriage but cannot dissolve a civil marriage, which must be referred to the English courts.
At Stowe Family Law, we have lawyers who specialise in Islamic divorce and can offer legal advice tailored to your specific situation. Divorce can be complex and especially so if you are divorcing under religious and civil law but guidance and support is available.
Useful Links
Civil Divorce – divorce glossary
Rights of Cohabitees – listen on Spotify
