Islamic divorce and its legal status in the UK
The daughter of Dubai’s ruler, Princess Sheikha Mahra Bint Mohammed Bin Rashid Al Maktoum, recently made headlines by not just announcing her divorce via an Instagram post, as is often the way with high-profile divorces, but using the post to ‘initiate’ the divorce.
The post itself read: “Dear Husband, As you are occupied with other companions, I hereby declare our divorce. I divorce you, I divorce you, and I Divorce You. Take care, Your ex-wife.” Within this, Sheikha Mahra invoked the Islamic triple talaq, which is a form of divorce where a husband divorces his wife by pronouncing “talaq” three times – whether verbally, written or even social media. The practice has been outlawed in many Islamic countries, including Egypt, Jordan, and the United Arab Emirates. It is also not permissible for a woman to invoke the triple talaq.
Speculation has ensued about what happens next for the Princess and her husband. It is likely that, as this practice is outlawed, the couple will need to navigate a divorce via one of the accepted divorce routes. Although Islamic law encourages couples to try reconciliation, where this is not possible, divorce is legal and accepted, both when initiated by the husband or by the wife.
For the husband, the process is called Talaq. A man can divorce his wife without her agreement but is then considered the ‘contract breaker’ and becomes liable to pay the full Mahr (a payment similar to a dowry) to his ex-wife. If it has already been paid to her in full, she is entitled to keep it.
For a woman wanting to divorce her husband, there are three avenues:
Khula – the wife initiates the divorce and the parties both agree to it, or the husband is persuaded to agree.
Faskh-e-Nikah – the wife applies to a sharia council to have the marriage dissolved without the husband’s consent on the basis of valid grounds, such as the husband has not fulfilled his marital responsibilities, which are outlined in the Nikah (the Islamic marriage contract).
Tafweedh-e-Talaq– this when the power of talaq is transferred to the wife and will usually be stipulated in the Nikah document. It is important to check if the conditions have been specially met.
Although there has been no information revealed about the actual divorce process for the Dubai Princess Sheikha Mahra, it is possible she could take the Khula route, if she did not have the power of talaq transferred to her. Her social media post hinted at her husband’s infidelity, suggesting that he has not fulfilled his marital duties. If this is the case, the Faskh-Nikah process may be most suitable.
Islamic Marriage in England and Wales
Many Muslim couples living in the UK are only married under Islamic law, through a religious marriage. However, Islamic marriage is not legally recognised in England and Wales.
Should an Islamic marriage be recognised in the country in which it was performed, and the marriage conformed to the regulations of that country, it will also be recognised under UK law. Therefore, marriage and divorce laws apply to the couple under England and Wales jurisdiction, even though Islamic marriage is not recognised.
In order for an Islamic couple’s marriage to be recognised in England and Wales, the couple would need to have a civil ceremony in addition to their religious ceremony. This would afford the couple the same rights and responsibilities as other civilly married couples.
Matters can become complicated if the couple chooses to not have a civil ceremony, instead relying purely on their religious marriage, and the relationship breaks down or one party dies. Legally, the couple would be treated as cohabitees, thus there is little to no legal or financial protection, and no automatic entitlement to make any claims under the law.
Islamic law states the wife is entitled to her full Mahr if her husband initiates the divorce. When the wife initiates divorce, there are protections in place under Islamic law, specifically Nafaqah, which requires the husband to provide financial support to his wife and any children during their marriage, and sometimes after divorce, although this can be up to interpretation of Islamic law. There is, however, a universally recognised financial responsibility towards children after divorce.
Nevertheless, there is very little protection for cohabitees in this country. This can leave the financially weaker party, often the wife, financially vulnerable under UK law.
Islamic Divorce in the UK
Should the couple have a civil marriage, in addition to being Islamically married, and decide to divorce, the divorce process is the same as for any other married couple who has had a civil marriage. In fact, there may be more financial security through a civil divorce as financial settlements are encouraged, and provisions will be made for each party on a needs basis.
In some cases, the husband will desire a civil divorce, but refuse to grant a religious divorce. In this circumstance, the wife may be able to apply to the Family Court to request that the conditional order is not granted until the religious divorce is pronounced, under the Matrimonial Causes Act 1973.
Until a civil divorce has been pronounced through the granting of a final order, a couple remain married in the eyes of UK law, even if a religious divorce has taken place.
Protective measures for Islamic couples
There are options for recourse in the UK through a Sharia Council, should an Islamic divorce occur but financial provision not be made, or the Mahr not paid in full. The Islamic Sharia Council (ISC) was formed to manage the marital problems of Islamic couples in the UK, and deals with Islamic divorces.
Where there is a civil marriage, and the wife is struggling to regain her Mahr, she may be able to make a claim under Section 25 of the Matrimonial Causes Act 1973 for the Nikah (marriage contract) to be considered by the court. Where there is no civil marriage, she may be able to claim for a breach of contract.
As Islamic couples are viewed much as cohabitees in England and Wales (if there has been no civil marriage), similar options are available for financial protection, which may be worth considering even if the religious marriage allows for such protection.
For example, clients may need a cohabitation agreement to supplement their Nikah, allowing for a degree of security if the relationship breaks down and one party needs to bring a claim before the court.
However, the best option, as cohabitation agreements are not legally binding in England and Wales, is for couples to have a civil wedding, or civil partnership, giving them the same rights as UK married couples.
Conclusion
It remains to be seen whether Princess Sheikha Mahra’s invocation of the triple talaq will be recognised, and how the couple’s divorce may proceed. What is interesting to family lawyers in England and Wales is the impact this may have on Muslim women wanting to initiate divorce.
It is important that family law professionals are aware of the different routes and divorce concepts associated with Islamic divorce, and the interlinking with civil divorce. Clients should have a clear view of their rights under English law, and the legal standing of an Islamic marriage.
Sobiah Hussain is a Senior Associate at Stowe Family Law
