Many Muslim couples in the UK have both an Islamic marriage and an English civil marriage, though some couples enter an Islamic marriage without entering a civil marriage. Where a couple have entered a civil marriage, an English court can pronounce a decree absolute to end the marriage. An Islamic divorce is necessary to terminate the Islamic marriage. 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.
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, does make provision for divorce by either party. Islam provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalising the end to their marriage.
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 a nikah contract is that the husband agrees to pay the wife a dowry. The dowry is paid to the wife and to her only. The purpose is for the husband to show honour and respect and his serious desire to marry her and that he is not entering into the marriage contract without any sense of responsibility, obligation or effort.
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.
When a divorce is initiated by the husband, it is known as talaq. The husband's pronouncement may be verbal or written, but once made, there is a waiting period of three months ('Iddah) during which there can be no sexual relations, even though husband and wife are living under the same roof. In the case of talaq, the husband is the contract-breaker, so he must pay the dowry in full where all or part of it was deferred or allow his wife to keep all of it if she has already been paid it in full. A husband can divorce his wife unilaterally, but the husband or wife may apply for an Islamic talaq certificate which can be used as evidence that the couple are divorced.
There are three types of Sharia divorce following a wife's initiation of divorce:
- Khula: A divorce is initiated by the wife and the parties agree on the divorce. If the husband is not at fault he can require the wife to return her dowry to end the marriage because she is the contract-breaker.
- Faskh: Where the husband is at fault, the wife can petition for divorce with cause. She is required to offer proof that her husband has not fulfilled his marital responsibilities.
- Tafreeq: The wife separates and seeks the services of an Islamic court or, more likely, the Islamic Sharia Council (ISC) due to oppression on the part of her husband.
The ISC was formed to solve the matrimonial problems of Muslims living in the United Kingdom in the light of Islamic family law. The ISC deals only with Islamic marriage and cannot dissolve any civil marriage, which must be referred to the English courts. A divorce decision issued by the ISC dissolves an Islamic marriage and the parties are provided with a certificate of divorce.
English courts do not have jurisdiction over matters relating to Islamic marriages. Islam outlines certain steps that need to take place both before, during and after a divorce. The needs of both parties are considered, and children of the marriage are given priority. Guidelines are given for personal behaviour and legal process. Failing to apply for an Islamic divorce could leave the parties with no recourse to assistance in respect of their needs.
Even if the parties have a civil marriage as well as an Islamic marriage, it is vital from a religious perspective that the religious marriage is dissolved, as a woman will not be able to conduct a new marriage contract without the first marriage being dissolved.
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 the husband filing an acknowledgment of service in civil divorce proceedings. The view of the ISC to date has been that the husband's signature on the acknowledgment confirming he does not object to the divorce can be used as his consent for the Islamic divorce. This circumvents the normal process of having to write to the husband to seek his views on a wife's application.
Where a husband has not made the dowry payment under his marriage contract, a wife who also has a civil marriage is able to make an application for financial remedy seeking recovery of her dowry. The content of the marriage contract is considered by the courts under the section 25 criteria (section 25, Matrimonial Causes Act 1973) and is a circumstance that they should take into consideration to ensure fairness and justice are upheld to both parties This is only relevant where there is a civil marriage as well as a religious marriage as the English courts do not have jurisdiction in the absence of a civil marriage. If a wife is unsuccessful in financial remedy proceedings, or did not enter a civil marriage, she may be able to issue a claim for breach of contract to enforce her husband to pay the contractually agreed dowry.