Islamic divorce can be started by either party; however, different procedures need to be followed depending on whether the husband or the wife wishes to divorce. If the couple is also married under UK law, a civil divorce must be obtained alongside the Islamic divorce. But does the UK recognise Islamic divorce? Read on for more information.
Islamic divorce can be started by either party; however, different procedures need to be followed depending on whether the husband or the wife wishes to divorce. If the couple is also married under UK law, a civil divorce must be obtained alongside the Islamic divorce. But does the UK recognise Islamic divorce? Read on for more information.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Liza Gatrell. Vicki is a trusted and highly capable family lawyer and divorce solicitor and a Partner at the specialist family law firm, Stowe Family Law.
Is an Islamic marriage (Nikah) recognised in the UK?
The marriage contract of Nikah has no legal standing if it took place in the UK. Whilst Islamic (Sharia) law does recognise it, if you want the marriage to obtain legal status in the UK, then an additional ceremony will have to take place at a register office. Couples who decide to only hold the Nikah are deemed to be a cohabiting couple under UK law, and therefore not protected in the same way as married couples if the relationship breaks down.
However, if a Nikah has taken place in a country with Muslim family law, a different legal status applies. Marriages in countries with Muslim legislation are legally recognised in the UK, provided the ceremony was conducted in accordance with those laws. If you were married in this way and you wish to divorce in the UK, then you will need to obtain both an Islamic and civil divorce. This will require something called a Talaq or Khula.
What happens if I only have a Nikah without a civil ceremony and want to make a claim for financial relief?
If a Nikah is held in the UK without a civil ceremony taking place, then the marriage will be recognised under Islam but will not be legally recognised in the UK. The likely consequence of this is that neither party will be able to rely on English law in the event the relationship breaks down. In this situation, the couple may have limited options where the court can assist, and is generally dependent on whether there are any children and/or an owned property.
For those in a legally unrecognised marriage with children and/or an owned property, there are two routes that may help settle financial matters:
- A claim under Schedule 1 of the Children Act 1989 – this claim provides payment and/or property for the benefit of any children the couple has together. This type of claim may assist a primary carer of the children who is left with no financial help from the other party.
- A claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) – this claim may help establish whether a trust has been created in respect of the owned property. A successful claim would allow one party to establish a share in a house owned by the other party.
If the marriage is not legally recognised in the UK and the parties do not have any children or property, then the court will generally not be able to assist with the division of assets.
How do I initiate an Islamic divorce?
Should the husband wish to divorce their wife, the process is called “Talaq”. Here, the husband is considered to be the contract breaker and must pay the “Mehr” in full should it have been deferred, or allow the wife to keep it entirely if it has already been paid.
In cases where the wife wishes to divorce their husband, a different process must be followed, and she must seek the divorce from a Sharia Council. There are three types of divorce process, depending on whether the parties agree to a divorce, if 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-e-Nikah, and Tafreeq.
A Khula is when a married woman initiates divorce proceedings, typically for reasons such as immoral behaviour, mistreatment by the husband, or where he doesn’t provide maintenance. A Khula takes on average between 6 and 9 months and generally involves the wife paying all or part of her Mehr back to the husband.
A Faskh-e-Nikah dissolves an Islamic marriage on a wife’s application. This type of divorce is sought if the husband and wife do not mutually consent to the divorce and/or when the husband refuses to give a Talaq, despite the marriage having broken down.
A Tafreeq happens when the wife separates from the husband and seeks the services of the Islamic Sharia Council (ISC) because of oppression by her husband. The ISC will then dissolve the marriage contract through a process of annulment.
How can I obtain a Talaq divorce that is legally recognisable in the UK?
A Talaq divorce which is recognised in law in a Muslim country or jurisdiction will also be recognised in the UK provided certain formal requirements as set out by the Muslim Family Law Ordinance 1961 (MFLO) are met. This includes the following:
- A husband must give notice in writing of the pronouncement of a Talaq divorce to the Chairman of the Union Council of the ward in which the couple live
- The husband must give a copy of the notice to his wife
- There are provisions for attempts at reconciliation during a 90-day period known as “iddat”. During this period, the marriage is in a suspended state and the Talaq can be revoked
- At the end of the 90-day period, the divorce will take effect, unless revoked
If a full Talaq takes place in a Muslim or Sharia country, then it will be recognised under UK law only if the above procedure is followed and:
- The husband/wife is a citizen of that Muslim country
- He/she is habitually resident in the Muslim country
- He/she is domiciled in the Muslim country
Can a Talaq be pronounced only in the UK?
A Talaq divorce pronounced in the UK alone will not be recognised by the UK courts unless the Nikah took place without the additional civil marriage ceremony. If the Nikah took place in a Muslim or Sharia country, then the entire Talaq procedure must take place outside the UK and inside the Muslim country, in addition to a civil divorce in the UK. This would mean that the couple is divorced in the eyes of Islam, as well as the law.
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