Introduction

This article focuses on the different types of Islamic/Shariah divorce, the overlap with civil law and the relevant financial implications. Many Muslim clients experience marital breakdown in this jurisdiction, so it is useful to gain a better understanding of the issues they face and the holistic advice that is needed. The cultural aspects have not been considered within the article, but should also be borne in mind when advising Muslim clients.

Islamic marriage

An Islamic marriage which has complied with the necessary customs and practices in a state which recognises it to be legal may also be recognised as a lawful marriage in the jurisdiction of England and Wales, under the lex loci celebrationis principle. An Islamic marriage is conducted by way of a Nikah ceremony. The ceremony differs between cultures. Generally speaking, the ceremony requires the bride’s father or male relative, two adult Muslim witnesses and an Imam or Muslim officiant. Usually, a Nikah contract is signed along with the witnesses.

Islamic divorce

There are various types of Islamic divorce, as follows:

(1) Talaq – the ending of the marital relationship by the instigation of the husband (by his choice and his consent), and this involves specific, well-known phrases. There are different types of Talaq, and these are addressed in more detail below.

(2) Khula – where the wife initiates divorce proceedings, but the husband and wife both agree on the terms of the divorce, usually regarding the repayment of Mahr (financial consideration given to the wife by the husband upon marriage).

(3) Faskh-e-Nikah – this is the dissolution of the Islamic marriage, pronounced by a Shariah court, upon the wife’s application. Faskh is not uttered by the husband nor is it conditional upon his consent or choice. Faskh can only occur when there is a reason that makes it necessary or permissible, e.g. financial difficulty on the part of the husband, presence of a defect preventing intimacy, etc. If the ruling is in the wife’s favour, then she does not have to return the Mahr.

(4) Tafweed-e-Talaq – when the right of a woman to divorce is included in the marriage contract (i.e. delegated to her or a third party). This can be with or without stipulating conditions. It is important to, therefore, consider such matters at the point of the Nikah contract being drafted.

Talaq, the most common type of Islamic divorce, can be divided into two categories:

(1) Revocable Talaq – the husband divorces his wife for the first or second time (this can be by uttering specific phrases or by way of written divorce on both occasions), without her offering him any compensation for that (sometimes, the return of gifts or Mahr is advised by the Shariah Council as per Shariah principles). Here, it is permissible for him to take her back before her Iddah (the stipulated waiting period is usually three lunar months for divorced women) ends. The choice to reconcile in these circumstances exists only before the expiry of the Iddah period.

(2) Irrevocable Talaq:

• major irrevocable divorce is when a husband issues a third (and final) divorce to his wife. In this case, it is not permissible for her to go back to him until after she has married someone else, in a valid and genuine marriage (i.e. after consummating the marriage), and the new husband leaves her (known as the practice of Halala). The parties cannot reconcile under Shariah law without Halala taking place which is why the Shariah Council advocates the use of relationship counselling/mediation for parties contemplating a divorce.
• minor irrevocable divorce is when the man divorces his wife for the first or second time, then her Iddah ends, or he divorces his wife in return for compensation, or he divorces her before consummating the marriage with her. In this case, it is permissible for him to take her back, but it must be with a new marriage contract and a new Mahr.

Talaq can be immediate or subject to conditions, as detailed below:

(1) Talaq with immediate effect – e.g. when the husband says to his wife, ‘You are divorced’ or other implicit words with the intention of divorce, without making the divorce conditional upon anything.

(2) Talaq which depends upon a condition – tied to a clear oath or clear condition, e.g. ‘When the sun sets, you are divorced.’

Civil law overlap and financial aspects

Besides navigating the complexities of Shariah family law, it is also important to bear in mind that, if the couple have a valid marriage (under the jurisdiction of England and Wales), they should also consider a civil divorce, the arising matrimonial financial matters and the arrangements for any children.

An Islamic divorce which takes place in the jurisdiction of England and Wales is not recognised to be legal and therefore does not end the civil marriage. Generally, for a foreign divorce to be recognised in England and Wales, it must meet the following criteria:

(1) the order must be effective in the law of the country in which it was obtained; and

(2) at the date at which the order is sought, either party to the marriage will need to be habitually resident, domiciled or a national of the country in which the order was obtained.

Accordingly, if either party was to obtain an Islamic divorce in a Muslim state/country which recognises the marriage to be valid and effective, the divorce may also end the civil marriage in the jurisdiction of England and Wales. Parties may also choose to obtain a declaration of the divorce by way of an application to the High Court or Family Court, which is compliant with Part III Family Law Act 1986.

Transnational divorce

Many Muslim couples conduct their personal affairs (especially relationships) in more than one jurisdiction as they have ties to other countries. This could involve international marriages, divorces or offshore assets. It is vital to keep this in mind when looking at an Islamic marriage or divorce as usually the laws of the various jurisdictions involved may not align.

The case of Hussain v Parveen [2021] EWFC 73 raised an issue with regards to the validity of a divorce (the wife’s first divorce in this case) which was commenced and concluded in two different jurisdictions. The petitioner in the case was the respondent’s ‘second’ husband who contended that when the respondent married him in Pakistan, she remained married to her ‘first’ husband. This was on the basis that her divorce from the ‘second’ husband was transnational in nature and could not be recognised in this jurisdiction. On that basis, the petitioner sought for his marriage to be annulled.

The ‘first’ husband pronounced Talaq (by way of a letter which was later converted into a divorce certificate by a mosque in England) in accordance with the Muslim Family Laws Ordinance Act 1961 which governs marriage and divorce in Pakistan. This was later registered by the wife with the Union Council in Pakistan, to validate the divorce in Pakistan.

Sections 2 and 3 Recognition of Divorces and Legal Separations Act 1971 was considered in this matter, namely the requirement for the divorce proceedings to be commenced and finalised in the same jurisdiction by way of a ‘single act’. The court held in this case that the divorce between the wife and the ‘first’ husband could not be recognised in the English courts as the divorce was not obtained in a single act, instead, there had been a series of events in two different jurisdictions.

Legal precedent had been set in the case of R v Secretary of State for the Home Department ex parte Ghulam Fatima [1986] AC 527 where it was held that a Talaq obtained/declared in England was not a valid divorce within the definition of ss 2 and 3(1) Recognition of Divorces and Legal Separations Act 1971. Lord Ackner’s comments in this case were particularly relevant:

‘In my view the word “obtained” connotes a process rather than a single act. To obtain a divorce a party must go through a process, in the same way that a person obtains a university degree or any other qualification. If that process is part of a judicial process (proceedings) and therefore linked to one judicial authority, it seems to me that there is logic and sense in saying that the proceedings must begin and end in the same place. Accordingly, the mere fact that the divorce is “obtained” in the sense of “finalised” or “pronounced” in one country cannot in my judgment dissociate the process of “obtaining” it from the proceedings in which it was obtained.’

Mahr

Mahr is an obligatory, usually financial, gift (according to Shariah principles) provided by a husband to his wife at the time of an Islamic marriage. There is no set amount prescribed, however, the husband’s means and the parties’ agreement are relevant in determining the amount or item (could be jewellery, etc).

The obligation of payment of Mahr in Shariah law derives from the Qu’ran and is referred to in Surat 4 as follows:

‘And give to the women (whom you marry) their?Mahr?(obligatory bridal money given by the husband to his wife at the time of marriage) with a good heart, but if they, of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm (as Allâh has made it lawful).’

Mahr can be paid immediately at the time of the Nikah (muajjal) or deferred (muakkar) to a later date. It can also be divided (some to be paid immediately and some deferred to a later date or determining event). Usually, if partial or whole Mahr is deferred, it must be considered and dealt with upon the parties’ Islamic divorce.

There are specific Shariah laws and principles regarding Mahr. Each matter is fact-specific and specialist guidance from the Shariah Council should be sought, alongside assistance from a Shariah family law expert. Generally, however, if the divorce takes place prior to consummation of the marriage, the wife is entitled to half of the Mahr amount if already specified. If the husband pronounces the divorce, the wife is entitled to retain the Mahr in full. If any amount is outstanding, the husband will be liable for the outstanding balance, but this is difficult to pursue in the jurisdiction of England and Wales unless there are financial remedy proceedings or the husband is a God-fearing man (Shariah Council involvement).

It is to be noted that the terms of the Nikah contract itself, including the provision for Mahr, are not automatically recognised within financial remedy proceedings and, therefore, they will need to be factored in as a matrimonial asset (be it cash or property/land, etc). In the event there is no recourse to the Family Court (civil divorce/financial remedy proceedings), then civil proceedings regarding the contractual (Nikah) dispute would need to be considered (proportionality and costs implications to be factored in).

In the case of Shanaz v Rizwan?[1964] 2 All ER 993, the parties married in India in 1955 and the terms of Mahr were included in the Nikah contract. The husband divorced the wife in 1959 and the wife brought a financial claim in England, where the parties resided. The wife sought remedy in the civil courts for breach of (Nikah) contract and was successful in retrieving the outstanding Mahr amount.

Similarly, in the case of Uddin v Choudhury [2009] EWCA Civ 1205, the court recognised and upheld the terms of the Nikah contract.

Issues arise when the Nikah contract is verbal only or when the written contact cannot be obtained. If there is no valid marriage, the parties would be treated as a cohabiting couple. In this instance, addressing the financial matters would be confined to TOLATA and Schedule 1 claims.

Precautionary steps

Precaution is always best when dealing with a Muslim couple.

Accordingly, having a Nikah contract properly drafted by a Shariah family lawyer alongside a prescriptive pre-nuptial agreement, should assist when dealing with the financial aspects arising from an Islamic divorce. It is to be noted that whilst a post-nuptial agreement can be executed if precautionary steps have not been taken prior to the marriage, there is nothing similar available under Shariah law.

For whatever reason, if the appropriate precautionary steps have not been taken, it is vital that the assistance of an expert family lawyer, who also specialises in Islamic/Shariah law, is sought in the event of marital breakdown. Special consideration would have to be given to the religious and cultural nuances alongside the legal options available before formulating the best strategy for the client.

Lastly, it would also be best for specialist advice from lawyers and/or the Shariah Council in the other jurisdiction to be consulted to ensure that complete legal advice has been provided (which would avoid issues/difficulties in the future, as was the case in Hussain v Parveen [2021] EWFC 73).