Some Muslim couples in the UK are married under Sharia law, but not English civil law.  As such, this can pose considerable challenges if the marriage falls apart, including in relation to the rights of individuals to a fair financial settlement.  In this article, we will delve into the fundamental aspects of divorce under Sharia law, the issues that may arise, and how these can be addressed.

Marriage under Sharia law

A fundamental aspect of Sharia marriage is the ‘nikah contract’.  The purpose of a nikah contract between a couple married under Sharia law is to clearly define the rights and responsibilities of each individual, including the promise of the husband to pay a mahr (a bridal gift) to his wife.  The mahr, which must have monetary value (e.g. jewellery, cash, or property), is intended to symbolise the taking of financial responsibility of the husband for his wife, who then owns the gift outright.  The contract will also contain the explicit consent of both parties to the marriage, any prenuptial conditions, including where the couple will live.

What are the grounds for divorce under Sharia law?

According to the Islamic Sharia Council, a British registered charity whose role includes helping to resolve issues for those married under Sharia law, the following are grounds for divorce (this list is not exhaustive):

  • Where the wife suffers physical, financial or emotional harm from the husband
  • Where the husband suffers certain physical defects, such as impotency
  • Adultery or infidelity
  • Where there is a difference of religion

What are the types of divorce under Sharia law?

The Sharia law system varies considerably from that of English civil law in the forms of divorce which can be applied, based on the circumstances of the separation.  These are as follows:

  • Talaq refers to the right, under Sharia law, of a man to divorce his wife. At the outset, where possible, an arbitration meeting will be arranged with a view to attempting to arrange a reconciliation (akin to an alternative dispute resolution process).  If this is not successful, the intention to divorce may be made verbally or preferably in writing by the husband.  Following the pronouncement of the intention to divorce, a period of time must be allowed (‘iddat’) during which time, if the man does not change his mind, the divorce is considered to be completed.  In order to register the divorce formally, an ISC talaq application form must be completed, and the full payment of any Mahr owed to the wife by the husband.  If and when the divorce is finalised, a talaq certificate can be requested as proof of divorce.
  • Khula applies whereby a divorce is requested by the wife and the husband consents to the request. Under this process, the man may seek the return of the marriage gift (Mahr), however, the granting of this request by the ISC will depend on a range of factors including whether there are children and if they are financially supported by the husband.
  • Faskh-e-Nikah refers to the dissolution of an Islamic marriage requested by the wife, but there is no agreement by the husband. In this case, the pronouncement of divorce is made by a third-party, e.g. an Imam.  As such, this is a form of judicial dissolution.

If you are considered your options in relation to the dissolution of an Islamic marriage, it is important to fully understand the types of dissolution available, their implications, and select the best route to choose given your exact circumstances.  As such, it is vital to seek the guidance of a family law Solicitor in the UK who will be able to advise you accordingly.

In situations whereby a couple are married under both Islamic and English civil law, and the husband wants to divorce in civil law, but not religious law, the Divorce (Religious Marriages) Act 2002 (DRMA) contains provisions which ensure the English Court does not grant a decree absolute until he cooperates with the issuing of the talaq. 

Final words

While at present there is no requirement for a Muslim couple to enter into both Islamic law and English law marriage, the Council of Europe has recently made recommendations that civil marriage should be compulsory, either before or during the religious ceremony, to ensure women are protected under law.  Whether this becomes mandatory in the future or not remains to be seen, but this underpins the importance of either party seeking expert family law guidance in relation to a proposed dissolution of an Islamic marriage, to ensure your interests are protected, and those of your children.

If you require detailed legal advice on Islamic divorce matters, please call us on 0161 941 4000 or find out how we can help with religious divorce here