The Inter-play Between English Law And Islamic Law – Divorce

How to end your Nikkah – Islamic divorce

Talaq

If you are a man, the Nikkah can be terminated by:

• pronouncing Talaq (divorce) – ' I divorce you', 'I have divorced you'
• Dhihar – comparing the relationship you have with your wife to a relationship that would be incestuous
• Iyla- by taking an oath not to engage in marital relations and fulfilling the oath for 4 months
• Lia'an- by accusing and starting proceedings against the wife for adultery

Khula

If you are woman, you can request a Khula i.e. ask the husband to divorce you. Unless the reason for the khula is the behaviour of the husband, it is normal for the Mahr to be paid back to the husband. For more information about Mahr, click here.

If the husband refuses to pronounce the Talaq, you can apply to the Sharia Council to issue the Khula.

Is my sharia divorce recognised in law in England and Wales?

This will largely depend on whether you had a legally recognised marriage. If your Nikkah was not legally recognised, then you were never married in the eyes of the law and will be treated as cohabitees. Click here to view our article about cohabitee's rights and consider whether a separation agreement might be right for you.

If your Nikkah is recognised as legally valid, then the law is broadly as follows:

• If your Islamic divorce took place entirely overseas in a country where the Islamic divorce is recognised as a legally valid form of divorce and you complied with the formalities as per the law in that country, your divorce will be recognised by the English courts. You may still however need to resolve your financial claims against each other, click here for more information: Finances in Divorce – Gardner Leader. [Note that if the Islamic divorce was initiated in England and Wales e.g. by the pronunciation of Talaq and then registered in a country where Sharia law is recognised, although you will be divorced under Sharia law, you will still be married according to the laws of England and Wales].
• If your Islamic divorce took place in England or Wales then although you may be divorced under Sharia law, it will not be recognised as a legally valid divorce in England and Wales and you will need to apply for a civil divorce. For more information on how to obtain a civil divorce, click here: Get a divorce: Check you can get a divorce – GOV.UK (www.gov.uk). It would also be prudent to resolve financial claims, click here for more information: Finances in Divorce – Gardner Leader.

I already have an English divorce, do I still need an Islamic divorce?

Depending on what school of thought you follow, there are differences in opinion regarding this. For peace of mind and certainty it is therefore best that the dissolution of the Nikkah is dealt with separately.

Although Sharia Councils have somewhat differing procedures, the core elements are the same:

• There is usually a fee for the application although exemptions may be available.
• A narrative is usually required regarding why the Nikkah has ended.
• The narrative is usually then sent to the other party and options may be considered for reconciliation.

If reconciliation is not possible then the Islamic divorce is either granted by:

• Talaq – the husband granting the divorce
• Khula – an agreement that the husband agrees to give the wife Talaq, possibly in return for her repaying some or all of the Mahr to the husband
• Faskh – dissolution by a Shariah court (if the husband will not agree to the Talaq)

Sharia councils are likely to be swifter in accepting that a Nikkah has ended where a decree nisi/conditional order or decree absolute/ final order has been granted as it shows that the marriage has broken down irretrievably.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.