The Financial aspects of Islamic Divorce
The Financial Aspects Of Islamic Divorce
According to the 2021 United Kingdom census, Muslims in England and Wales numbered 3,868,133, or 6.5 per cent of the population. If you are seeking an Islamic divorce, you may be confused about how Sharia law interacts with the law in England and Wales, especially when it comes to the division of money, assets, and property, keep reading for a full explanation of the financial aspects of Islamic divorce. If you require further information, please get in touch with a Family Law Solicitor who is experienced in Islamic divorce law.
First things first – is your marriage legally recognised in England and Wales?
In 2022, Channel 4 released the documentary The Truth about Muslim Marriage. The programme showed that 66.5 per cent of Muslim couples who had undergone a Nikah (Islamic wedding ceremony) in the UK had not made their marriage legal in England and Wales by having a civil ceremony. Worryingly, 28 per cent of couples who had not participated in a civil marriage ceremony in addition to a Nikah ceremony wrongly believed they were legally married.
For an Islamic marriage, Nikah ceremony, or Sharia marriage to be legally recognised in England and Wales, it must have taken place in a country where this type of marriage is recognised by law, for example, Saudi Arabia, Pakistan, or Iraq. If you have such a wedding in England and Wales, where this type of marriage is not legally recognised, you must have a civil ceremony in the UK; otherwise, according to English law, you are merely living together (cohabitating) rather than legally married.
Islamic divorce – the basics
There are four main ways to end a marriage in Islam:
• Talaq: This is where the husband asks for a divorce. Because he is breaking the marriage contract he must pay a Mahr or dowry to his wife.
• Khula: Both parties agree to end the marriage. Khula is normally begun by the wife; however, both spouses agree on the terms of the divorce. If the husband is not at fault, he can compel the wife to return the Mahr as it is she who broke the contract.
• Faskh-e-Nikah: The marriage is dissolved by a Sharia Court, after the wife initiates the divorce if the couple cannot agree to separate 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.
• 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 following conditions must be satisfied before an Islamic divorce can be granted:
• The wife must not be on her monthly cycle.
• Only one divorce must be given, that is the husband may say to the wife: "I divorce you".
• Two witnesses must be present.
• After the divorce is pronounced, the woman has to pass her term of iddah (three menstrual periods).
Islamic divorce and the financial settlement
If a wife has entered into a civil marriage as well as a religious marriage, they can apply to the Family Court to seek recovery of the Mahr. In such cases, the Court will apply the factors listed under section 25 of the Matrimonial Causes Act 1973 when considering the settlement. These are:
• The resources available to the parties, both capital and income and extant or reasonably foreseeable.
• The financial needs of each party, considering the needs of dependent children and any disabilities.
• The duration of the marriage and the age of the parties.
• The conduct of the parties (but only in exceptional circumstances).
• The standard of living enjoyed by the parties.
• Any benefit either party will lose because of the divorce.
• The contributions of each party to the marriage (both financial and non-financial).
In cases where no civil marriage took place, a wife can claim breach of contract to force her husband to pay the Mahr.
Regarding financial assets such as property, business shares, cars, furniture, and investments, family law in England and Wales considers the financial settlement of property and assets separately from the divorce. The Court will examine the factors under section 25 of the Matrimonial Causes Act 1973 to reach a fair financial settlement. Most couples, with the help of a Family Law Solicitor, can negotiate a financial settlement between themselves and if a dispute arises, mediation or round-table negotiation is often preferrable to going to court. However, if you do reach a mutual agreement, it is essential to get it finalised by the Court via an application for a Consent Order.
Final words
Regardless of faith, getting divorced involves separating two lives that, in some cases, have been intertwined for decades. An experienced Islamic Divorce Law Solicitor will do everything possible to help you and your spouse reach a financial settlement between yourselves, saving the cost and stress of court proceedings. However, sometimes this is not possible. If going to court proves inevitable, you need a talented, strategic legal team who can protect your best interests.
If you have any questions regarding this article, please call us on 0300 3732424.
