Islamic Divorce

When is a marriage a marriage? How do Sharia Law and Divorce work together? These are the questions that you may need to ask if you are considering separating from your husband or wife. Under English law, if a marriage is recognised as a legal marriage, a husband or wife can make financial claims against the other spouse’s assets. Whilst they might be able to make limited property claims as a cohabitee the financial claims that a spouse can make are wide sweeping. For expert family law advice call our team or complete our online enquiry form. The Nikah, Sharia Law and Divorce  Until a court decision a few years ago, if a Nikah ceremony was carried out in the UK the traditional Sharia law Nikah marriage wasn’t recognised in England and Wales as a legally valid marriage unless the couple also underwent a civil ceremony in a registry office. The second civil ceremony was classed as the legal marriage for official purposes. For most couples who celebrated a Nikah the thought that they were not considered legally married despite their traditional marriage ceremony, family celebration, and their recognition as a couple by family and friends, was repugnant. The law isn’t straightforward. If a couple celebrates a Nikah in a country that recognises Sharia law (and therefore the Nikah is a legally valid marriage in the country where the Nikah took place) the Nikah is recognised as a legally valid marriage in England and Wales. With the court ruling, a Nikah that takes place in England may be sufficient for a husband and wife to be classed as married even though they have not participated in a civil ceremony. Why is it important for a marriage to be legally valid in Sharia law and UK divorce law? If you are not legally married under English law then on separation you do not need to start divorce proceedings because under English law your relationship isn’t recognised as a marriage. Under the law, you are treated as if you were a cohabiting couple. That means that you can’t: Apply for spousal maintenance Apply for a share of your partner’s pension Apply for a share of your partner’s house unless you are a joint legal owner or have what is known as a beneficial interest in the property Apply for a share in your partner’s other assets such as shares in a family business if the shares are all held in his or her name As there is such a vast difference in how married and cohabiting couples are treated by the law on separation it is vital that couples know where they stand and whether their marriage is legally recognised or not. Divorce Court ruling on Sharia law divorce and marriage In a high court case, a Mrs Akhtar sought a divorce from her husband, Mr Khan. He opposed the divorce on the basis that they weren’t legally married having participated in a Nikah ceremony in a London restaurant conducted by an Imam with about 150 guests as witnesses to the celebration. The judge ruled that the marriage was void. This decision allowed Mrs Akhtar to bring the financial claims of a spouse, claims that she wouldn’t have been able to pursue if the court had ruled that the Nikah was a non-marriage. Does the legality of marriage ceremonies just affect those participating in Nikah weddings? Many people have been caught out, believing that they are legally married only to find out many years later that their ceremony isn’t a legally recognised marriage, for example, being married at a venue that doesn’t hold a licence to perform weddings and not subsequently participating in a civil ceremony. This can also affect couples who are married at a traditional Jewish ceremony or those participating in a Wicca marriage. [related_posts] Prenuptial agreements, marriage and divorce If a couple are wary of getting married in a legally valid ceremony of marriage because of the potential financial claims that arise from a legally valid marriage then the option of getting married with a prenuptial agreement in place might be the way forward. Prenuptial agreements are designed to stop or limit financial claims on divorce and can be a very sensible step if one or both parties to the marriage want to protect assets such as pre-owned property or shares in the family business. For expert family law advice call our team or complete our online enquiry form. Contact us for help with divorce and Sharia law.

An independent report on sharia law, commissioned by Teresa May when she was home secretary, reported last week on the operation of sharia law in England. The review was set up because of a concern that sharia law was being used as a second legal system in England and potentially sharia councils were discriminating against the women who use the councils to seek a divorce. https://www.gov.uk/government/publications/applying-sharia-law-in-england-and-wales-independent-review Sharia law and councils have no legal standing in England and Wales. It is often reported in the media that sharia law is operating in Muslim communities in England and Wales. It is also said that sharia ‘’courts’’ are becoming a parallel legal system in England and Wales. The report highlights the misconceptions that many people and the media have over sharia law and confirms the fact that sharia councils are not ‘’courts’’ and the members of the council are not ‘’judges’’ and don’t make decisions that are legally binding in English law. Why the concern then about the operation of sharia councils? The worry that led to the commissioning of the independent report into sharia councils was that about 90% of the people who seek help from the councils are women wanting a divorce. Women are the main users of sharia councils as married men don’t need to apply to the council for an Islamic divorce as they can issue a Talaq – a unilateral declaration of divorce. Some will question the need for government concern over women securing Islamic divorces through sharia councils but the worry is that women are reaching financial agreements with their husbands over the division of family assets in order to secure their husband's consent to an Islamic divorce or that when sharia council members are unofficially ‘’mediating’’ agreements with a couple they are applying Islamic law rather than English law to how family assets should be divided and adopting a very different role to a qualified family mediator. That puts Muslim women at a financial disadvantage when seeking a divorce, in comparison to their contemporaries using the British Courts. So why would a woman go to a sharia council rather than to a traditional family law Court to get a divorce and a financial settlement? The report states that many women resort to using sharia councils because they underwent Islamic marriage ceremonies and therefore aren’t legally married under English law. In general that type of marriage can put women under a real financial disadvantage in comparison to women who have participated in an Islamic marriage as well as a British recognised civil ceremony. When coming to its recommendations the authors of the report recognised that to stop women being disadvantaged by turning to sharia law and councils the women needed an alternative redress: the family Court system. The report therefore proposes a change in the law to require those going through an Islamic marriage ceremony to have a civil recognised marriage ceremony. That would then mean that married men and women would have to apply to the Court for a divorce and a financial order. The report also highlights the need to educate on the availability of Court remedies even if a couple have used a form of ‘’mediation’’ or arbitration at a sharia council. That is because the ‘’agreement’’ reached at a sharia council may not reflect the financial outcome that a wife would reasonably expect to receive in an English family Court or is unaware of the options open to her after reaching an agreement as part of the package of getting her husband's agreement to an Islamic divorce. No doubt it will take a while for the report’s conclusions to be digested and fully considered by all the interested parties and any agreed actions implemented through changes in the law. In the meantime what should you do if you think that your only option is to apply to a sharia council for a divorce? Take legal advice from a specialist family solicitor. The sharia council may not be the only option available to you and getting legal advice on what a family Court would award you in divorce Court proceedings could make all the difference to whether or not you decide to use a sharia council , and if you do , the outcome of how family money and property is divided. For advice about any aspect of family or children law please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk