Islamic divorce and civil divorce
April 24, 2015
It is believed that an Islamic divorce is necessary to terminate the nikah contract to make it certain a divorce has been effective even if there has been a legal divorce as well. It is believed that human jurisdiction cannot supersede Sharia law. English courts cannot pronounce Islamic divorces and so Muslims have to apply to a Sharia Council to obtain a Sharia divorce.
All Sharia councils in the UK apply at least one of the four recognised Islamic schools of thought: Hanafi, Shafi’i, Maliki and Hanbali. These each apply different interpretations of Sharia law. Many Muslims who want an Islamic divorce will contact a number of Sharia Councils to ascertain their school of thought before making the application for the divorce.
There are a number of Muslims who enter into nikah contracts without undergoing a civil marriage. Many of these believe that there nikah contract is registered under English law and have a shock when they want to file for divorce because they discover they are merely cohabitees.
When a couple under Islamic law get divorced the process will differ depending on whether they are a man or a woman.
Men can divorce their wives unilaterally by pronouncing talaq three times either consecutively or on three different occasions depending on the Islamic school of thought by which the couple abide. Once it has been pronounced, the wife enters what is known as the idda period this lasts for three months. If the husband and wife reconcile during this period then the marriage will continue. If however the marriage is not reconciled within this period then it will come to an end. If the wife is pregnant then she will have to wait until the child is born before the idda period can commence. The Sharia council does not have to become involved but they need to contact them if they want proof of the divorce.
If the petitioner on the other hand is the wife, they cannot unilaterally divorce their husbands. To get a divorce she would have to approach the council, fill in an application form, bring proof of ID, with her nikah contract and pay £100 to cover admin costs. She will then be asked why she wants a divorce. There are 16 grounds of Islamic divorce: polygamy without a wife’s consent, desertion and intolerance of a husband’s consumption of alcohol and/or drugs are just a few examples. The petitioner must provide as much evidence as she can to support what she is saying.
The petitioner is then invited to meet with the council`s reconciliation unit to discuss the marriage breakdown. After this meeting the council sends the respondent three letters putting him on notice of the petitioner`s divorce application and request an immediate response. They will try and organise a joint reconciliation meeting but if this does not work the case will appear before the panel of arbitrators.
At the final hearing the petitioner presents her case, very few respondents attend. They are both asked to bring two witnesses to the hearing. If they are unable to do so then they must provide reasons for not doing so. If the couple have children the arbitrator will ask about the current contact arrangement and will advise them to put something in place. The arbitrator will then decide if a divorce should be granted.
There are three types of Sharia divorce following a wife’s petition:
- Khula – Husband and wife have consummated the marriage and the husband agrees to a divorce;
- Tafreeq (dissolution) – they have consummated the marriage but the husband refuses to give a divorce.
- Faskh (annulment) – when a marriage is fundamentally flawed (e.g. forced marriage) and the marriage has not been consummated.
Once the divorce is finalised both the petitioner and respondent are issued with an Islamic divorce certificate. If there has been civil divorce proceedings, then an Islamic divorce can be granted quickly. It is hoped more people will register their nikah contracts under English civil law. Then the parties in particular wives are afforded all their rights upon divorce according to English law.
It is important that both parties to the marriage, whether Islamic or Civil, know their rights and obtain the correct divorce should their marriage unfortunately breakdown. AFG LAW can advise clients in respect of this.