We know that going through a separation or a divorce can be a complicated and emotional process, particularly if you are trying to navigate the processes associated with religious divorce in addition to a civil divorce.
Culturally, it is believed that when Muslims marry, they should first marry under the eyes of God, and if there is a separate civil registry to be performed, then that can be done at a later date. With this mindset, some Muslims are of the view that Islamic separation must be done as soon as possible so that they are no longer married in the eyes of God.
Unfortunately, this is where problems begin, so you must understand the different methods of Islamic divorce before you act.
Islamic Methods of Separation
Either party can initiate an Islamic divorce. However, different procedures are followed depending on whether the husband or wife initiates the divorce. It also depends on whether the marital contract (Nikah) has been adhered to throughout the marriage.
There are four main methods of separation in Islam:
- Talaq: This is when the husband initiates the divorce. In this instance, the husband breaks the contract and must pay the Mahr. The Mahr, also known as a dowry, is paid in full to the wife only.
- Khula: This is when both parties have mutually agreed to separate. While the Khula is typically initiated by the wife, the husband and wife agree on the divorce terms.
- Faskh-e-Nikah: This is the dissolution of an Islamic marriage pronounced by a Sharia court, initiated by the wife. This type of divorce is sought if the husband and wife do not mutually consent to divorce or the husband refuses to give Talaq. In Islam, it is prohibited for a husband to unreasonably refuse to grant Talaq, so a Faskh enables the wife to seek divorce in this circumstance.
- Tafweedh-e-Talaq: This is when the power of Talaq is transferred to the wife. Under English law, neither party has the power to grant a divorce. It is instead in the hands of the Judge. Islamic law puts the power in the hands of the man or the woman, depending on the type of separation used. The Tafweedh-e-Talaq is when the husband agrees to transfer his power of Talaq, allowing the wife to have that same right.
While these processes may sound confusing, at Slater Heelis, we have specialist Islamic divorce solicitors who are experienced in dealing with all different aspects of divorce and will be here to support you every step of the way.
Common Confusions and Misconceptions
The biggest confusion occurs with the Khula and the Faskh-e-Nikah. The Khula applies explicitly when both parties agree to separate by consent, usually following the terms that the wife agrees to repay her Mahr (dowry) to the husband.
Faskh-e-Nikah is the dissolution of a marriage by a Sharia Council. It occurs when the wife wants to divorce, but the husband unreasonably refuses to grant the Talaq. In this instance, any outstanding Mahr must be paid to the wife.
This mix-up occurs when people use the term Khula for everything that is not the Talaq (husband initiating the divorce). This not only means incorrect usage of the terms, but it also means that people have an incorrect understanding of the consequences. In the case of Khula, the Mahr is repaid by the wife to the husband (if agreed); however, in the case of Faskh-e-Nikah, any outstanding Mahr must be paid to the wife.
There are also several alternative spellings that you may come across, such as Khula: Al-Khul, khuluk, kuhl; Faskh: fasakh; Talaq: Tilaq, talak; Mehr/Mahr.
Is Your Sharia Marriage Legally Recognised?
Many Muslims in the UK will have an Islamic religious ceremony – a Nikah – in an unregistered building and won’t have an additional civil ceremony. Unfortunately, while this marriage is recognised under Sharia law, it is not under the Marriage Act 1949. Under UK law, the Nikah is only recognised as a religious ceremony, carrying no legal weight.
To be recognised by UK law, you must be married under Sharia law in a country where this type of marriage is recognised by law or get a civil marriage in addition to an Islamic one.
In November 2022, Channel 4 released a documentary titled “The Truth about Muslim Marriage”, where it was revealed that 66.5 per cent of Muslim couples who had undergone a Nikah had not validated their relationship under the relevant law.
Of that 66.5 per cent, 28 per cent of couples wrongly believed they were legally married.
So, why is this an issue? Regarding your rights and protections, those who are only married through a Nikah hold the same legal recognition, or lack thereof, as a cohabiting couple.
This can cause problems in the unfortunate event of divorce or death, where the parties do not have access to legal recourse relating to assets, pensions, and benefits.
Because of these legal complexities, we highly recommend you speak with a family law solicitor before starting any of your divorce proceedings.
Our Experts
Kaleel Anwar, one of our family law specialists, has extensive experience in all areas of family law and is regularly instructed in complex cases by Muslim clients worldwide.
At Slater Heelis, we can provide comprehensive legal support for Islamic Sharia Law and civil divorce procedures. We understand the cultural and religious sensitivity required for your matter, and our team will be on hand to help you every step of the way.
If you need help navigating your divorce, child arrangements, or financial settlements, don’t hesitate to contact our team. You can contact us by calling 0330 111 3131 or by filling out our contact form here.