Divorce in Islam: What You Need to Know.

The law on Islamic divorces differs significantly from conventional divorce law in England and Wales. Many muslim couples fall into the trap of mistakenly believing that their Islamic marriage or divorce is recognised in the UK, and, with limited guidance on the topic, it’s easy to understand why.

English law and Islamic law operate on completely different systems, and misunderstanding how they interact can leave you without legal protection or unsure whether you are even married or divorced in the eyes of the law.

Are Islamic marriages (nikah) recognised in England and Wales?

Islamic marriages, or nikah, are slightly different from the standard civil marriages that most non-muslim couples opt for in England and Wales.

A nikah is a binding religious marriage contract under Islamic law. A nikah requires witnesses, a wali (a male who provides consent for the bride to marry), where required, a mahr (a dowry from the groom to the bride), and an Islamic scholar.

If all these conditions are met, a marriage is valid under Islamic law, but, in England and Wales, a nikah on its own does not create a legal marriage unless it has been carried out in a registered building or alongside a valid civil ceremony.

If your nikah was performed in England without a civil marriage, under English law, you and your spouse are treated as cohabitants rather than husband and wife. This can have serious consequences, as cohabitants have the same legal rights as unmarried couples. You do not have the same financial claims as a legally married couple, and crucially, you do not have automatic inheritance rights if your partner dies without a will.

What can be confusing is that if your nikah was carried out abroad and Islamic ceremonies are legally recognised in your country of marriage, the law in England and Wales may recognise it as a legal foreign marriage even if the ceremony would not be legally recognised if it occurred in the UK. This is assessed on a case-by-case basis.

Islamic Divorce in England and Wales

Islam provides several ways that couples can divorce, and divorce can be initiated by either the husband or the wife. However, English law does not recognise most methods of Islamic divorce unless couples also obtain a civil divorce. Confusion often arises because the two legal systems interact and can overlap, creating uncertainty. For example, couples may believe they are divorced under Islamic law, but remain married under English law.

Before any divorce proceedings begin, Islam encourages couples to try to reconcile their relationship through mediation or arbitration, but if this does not work, then there are 5 main ways that Islamic couples can divorce:

1. Talaq is the husband’s unilateral right to divorce his wife without her consent. For a talaq divorce to proceed, a husband must ensure any dowry has been paid and continue supporting his wife during the divorce.
2. Khula is the wife’s right to divorce her husband, with her husband’s consent. In a khula divorce, the wife must return the dowry.
3. Tafreeq is a divorce initiated by the wife. Is Islam, tafreeq divorces are granted by a Sharia court or council where the husband refuses consent for the divorce.
4. Faskh or faskh-e-nikah, which is a form of annulment initiated by the wife and granted by a Sharia court or council, where the marriage is deemed invalid for any reason.
5. Tafweedh is when a husband transfers his right to talaq to his wife, allowing her to end the marriage without his needing to provide additional consent.

Islamic divorce proceedings through any of these methods are usually not legally recognised in the UK unless they take place alongside divorce proceedings in line with English law. Some Islamic divorces that take place overseas may be recognised legally in the UK, but only if they meet specific legal requirements.

Why civil divorces matter in Islamic divorce proceedings

Only Sharia divorces can end an Islamic marriage, and only civil divorce proceedings in England can end the civil element of a marriage.

For a marriage to end under both Islam and civil law, both Islamic or Sharia divorce and civil divorce proceedings must be followed.

This means that couples who have married but not divorced through the correct means may find that they are committing the crime of bigamy if they remarry, and still have financial ties to their husband or wife.

Remember that even if you are married abroad under an Islamic ceremony that is legally recognised in your country of marriage and your marriage is legally recognised in the UK, your divorce will likely only be legally valid under civil divorce proceedings and not Islamic divorce.

What happens if you only have an Islamic marriage?

For couples living in England or Wales, it’s important to have both an Islamic and a civil wedding ceremony. However, for one reason or another, some couples may choose to have only a nikah, or religious ceremony.

If this is the case, while you may be married under Islamic law, you won’t be married as per English law. For all intents and purposes, under English law, you would effectively be boyfriend and girlfriend.

This means that if your relationship ends:

• You cannot make financial claims as a spouse
• If your partner dies, you won’t automatically inherit their estate, nor any transferable inheritance tax advantages
• Your ability to claim financial help for children could be restricted
• You won’t receive any spousal tax exemptions

Many people don’t realise this until their relationship breaks down. If you’re in this situation, you should seek legal advice as soon as possible.

Legal enforcement of dowries

As with most aspects of Islamic divorce, a mahr is enforceable under specific circumstances.

If you have had both an Islamic and civil marriage, the mahr may be considered a marital asset and could be included in any financial settlement or remedy proceedings.

However, if you have only an Islamic ceremony and no civil marriage, the mahr is unlikely to be treated as a marital asset and may be treated as a contractual obligation. In Uddin v Choudhury [2009], the courts confirmed that the mahr may be enforceable if it meets the usual contractual requirements.

Every nikah or marriage is viewed differently, and a very large mahr could attract legal scrutiny. Equally, if a wife initiates divorce through khula, it’s important that they don’t waive their right to the mahr, as this may prevent them from recovering it later.

In short, it’s important to take legal advice before waiving or enforcing any mahr that may be involved.

The validity of overseas Islamic divorces in the UK

If you divorce abroad through Islamic divorce proceedings, your divorce could be recognised in the UK, but this isn’t always the case. An Islamic divorce may be valid in the UK if it meets 5 key conditions:

1. The divorce proceeded through a formal process with official involvement from a council or government body in the country where it took place
2. The divorce process is valid in the country where it was obtained
3. Both the husband and wife had notice of the divorce proceedings
4. At least one spouse was domiciled or resident in the country of divorce
5. The divorce took place entirely in one country, e.g. it cannot have started in the UK and finished in a second country

Importantly, even if a divorce meets these 5 criteria, it isn’t guaranteed to be recognised as valid in the UK.

If this is the case, this can give rise to what’s called a ‘limping marriage’ where you are still legally married in the UK and can create complications for finances, remarriage and immigration.

When to ask for help with Islamic divorce

Divorce is a difficult process, but having to follow two separate divorce processes can complicate matters further.

You should seek legal advice from a divorce solicitor if:

• you had a nikah in England with no associated civil marriage
• you had a nikah abroad but you’re unsure if it is recognised in England
• you or your spouse has pronounced talaq
• you are considering or have pronounced khula
• you have obtained a Sharia divorce certificate but you are unsure if your marriage has ended legally
• you need advice about enforcing or challenging a mahr or dowry
• you require protection from cross border proceedings or would like to challenge the divorce on grounds of jurisdiction
• you are unsure whether you are still married under English law
• you are thinking about remarriage

Islamic divorce and civil family laws don’t always align and your situation may be more complicated than you first realise.

How Britton and Time Solicitors can help

Understanding the nuances of how Islamic marriages and divorce sit alongside English law is essential to protecting your rights. As one of the most highly-rated law firms in the South East, our family law department regularly advises clients on the validity of religious marriages in England, together with child and financial proceedings.

Every case is different and if you would like clarity on your marriage status or on what the next steps might be, our family department will guide you through the process.

Call our solicitors on 0203 007 5500 to arrange a consultation with one of our divorce solicitors in Mayfair or Brighton, or arrange a virtual consultation.