Many Muslim couples in the UK have both an Islamic marriage and a civil marriage, though some couples enter an Islamic marriage without entering a civil marriage. Where a couple has entered a civil marriage or has an international marriage which is recognised in the jurisdiction of England & Wales, the English and Welsh Courts can pronounce a Final Order to end the marriage, and deal with the associated matrimonial finances.

An Islamic divorce is necessary, separately, to terminate the Islamic marriage, and a civil divorce does not automatically end this. If the Islamic marriage is not dissolved, there are consequences, for example, a woman will not be able to enter a new religious marriage contract.

Nikah

In Islam, marriage is the lawful union of a man and woman based on mutual consent. The Sharia (Islamic law) prescribes rules to regulate the functioning of marriage and the family. Islam discourages divorce, but, unlike some religions, it does make provision for divorce by either party, via different processes, and provides guidelines for the same.

An Islamic marriage contract is a formal, binding contract that outlines the rights and responsibilities of the bride and groom. One of the essential elements of the Nikah contract is that the husband agrees to pay the wife Mahr i.e. financial consideration to secure the contract and to highlight his commitment to the union. Mahr can be paid promptly at the time of the Nikah or deferred to a later date (or a combination of both).

Islamic Divorce

Before divorce is initiated, Islamic law encourages the husband and wife to appoint arbitrators to aid reconciliation. If reconciliation fails, the husband and wife are guaranteed the right to divorce as established in the Quran. The procedure differs depending on whether the man or the woman initiates the divorce.

There are various types of Islamic divorce, as follows:-

1. Talaq – 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.
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, the 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.

Islamic Sharia Council

The Islamic Sharia Council (ISC) was formed to solve matrimonial issues encountered by Muslims living in the UK. The ISC deals only with Islamic marriage and cannot dissolve any civil marriage, which must be referred to the English and Welsh courts. A divorce decision issued by the ISC dissolves an Islamic marriage and the parties are provided with a certificate of divorce.

English and Welsh courts do not have jurisdiction over matters relating to Islamic marriages, however cultural and religious issues are often dealt with, within matrimonial proceedings.

It is possible to apply for an Islamic divorce at any time. If the parties have a civil marriage, the Islamic divorce can be applied for at any point before, during or after civil proceedings have begun. In practice, it is easier to obtain an Islamic divorce following progress in the civil divorce proceedings.

Overlap in law

Whether a Muslim couple has a civil marriage, Islamic marriage or both, they require specialist advice from an expert who understands the nuances of culture and religion.

For example, where a husband has not made the Mahr payment as per the terms of his Nikah contract, and the parties are now divorcing, a wife who also has a civil marriage is able to request the court to adjudicate on the issue as part of any financial remedy application.

If there is no civil marriage, then a breach of contract claim may need to be pursued, and the Islamic divorce would need to be actioned separately. There may be additional financial claims relating to property or children which would fall outside matrimonial civil law but within the remit of family law (co-habitee claims).

Navigating Sharia Divorce Law in this jurisdiction is a complex area. Our Aysha Chouhdary has over 12 years’ specialist experience in such matters and works alongside the ISC and professionals in other jurisdictions.