In the latest of our podcast series, Family Law specialist Ruby Tufail talks about Nikah, Mehr, Talak, Khula and other forms of Islamic divorce and how they interplay with divorce laws in England & Wales. Listen to our podcast by clicking the link or read the transcript below.

https://thppodcasts.simplecast.com/episodes/islamic-marriage-and-divorce-in-the-uk-vRpXc_jL

Hello and welcome to the podcast from THP Solicitors. Our guest today is Ruby Tufail, a solicitor in our Family & Divorce department. Ruby specialises in all areas of divorce including advising Muslim couples on Islamic marriage and divorce in the UK, both regarding the Muslim ceremony and how to end a marriage under civil laws in England & Wales.

So Ruby, let’s start with talking about Nikah. Is Nikah recognised under English law?

Thanks, Melissa, a really interesting conversation. Before I answer your question, I think it’s quite important to share with you the fact that over 3.9 million Muslims are living in the UK.

Now firstly, let’s go back, to what is a Nikah? A Nikah is a religious ceremony undertaken by a man and wife to bring them together in matrimonial harmony. There are some conditions to a Nikah:

• there must be wilful consent from both parties
• two adult witnesses to the ceremony
• a legal representative or Wali, who is normally the father of the bride
• and bridal gift to the bride from the groom, known as Mehr, which I will go into more detail about later

So, is a Nikah recognised under English law? It depends on where the marriage took place. When you enter a Nikah ceremony in the UK, and providing you have met the full condition I have just outlined, your Nikah will be valid under Islamic law but unfortunately unless you have a civil legal ceremony you will not be legally married under English law and you would only be treated a ‘cohabitees’.

By only undergoing a Nikah ceremony in the UK, couples are in effect denying themselves security and the other advantages that come from a civil marriage. So, my advice will always be, that when getting married, you should always have the civil ceremony first and then have the Islamic ceremony. I appreciate that most people would not wish to live together until the Islamic ceremony but by doing it this way you provide protection. Time and time again, I see clients who have had an Islamic ceremony and were promised a civil ceremony and it never happened.

Now, this is where it becomes a bit complex. A Nikah will be recognised in the UK if you got married aboard in a country where Nikah is legal. I’ll give you an example. I was actually married in Pakistan, and I’ve only ever had a Nikah, but because I got married according to the law of the country where the ceremony took place, and it was registered. When my husband came to the UK, our marriage was recognised under UK law and we didn’t have to have a separate civil ceremony.

Now in the event of a divorce where you have got married abroad, because your Nikah has been recognised under UK law not only would you have to have a divorce under Islamic law, you would also need to have a divorce under civil law as well which is obviously important.

It sounds quite complex. Where you had your Nikah is really important and defines if you may need to have a civil marriage as well if you are living in the UK, as that determines if your marriage is legally recognised here.  

The key thing is, just to remember, if you got married abroad according to the law of the country, when you come to the UK your marriage will be recognised under civil law. If you got married in the UK under Islamic law, you need to have a civil ceremony to get the marriage rights that you would be entitled to.

Moving onto methods of separation in Islam, there are a number of different ways that couples can get divorced depending on who instigates it.

The two main methods are granting of the divorce by the husband, which is Talak. Talak is where the man unliterally gives a divorce to the woman with or without cause. However, he then has to pay the bridal gift, Mehr, as a financial settlement in full.

I briefly touched on Mehr earlier. In Islam, when marriage vows are recited the husband gives his wife a gift which is known as Mehr as part of the marriage contract. Mehr is documented and in the event of divorce, Mehr is what would be paid as a ‘settlement’. Mehr is normally paid at the time of the marriage ceremony, sometimes it can be deferred. It can be nominal amounts or huge. Often people put in a small amount such as £10 or £100 as they are confident in a happy union and just want something nominal, and others have a large Mehr for protection in case things go wrong. There are normally lots of discussions about it before the ceremony.

Now if the wife wants to get divorced in Islam it is called a Khula. Khula is where the wife can, without giving a reason, ask the husband for a divorce, however, the condition is that the wife is usually asked to repay the Mehr to the husband. There is no allegation of fault. In some instances, if they both agree, it can also be agreed that the wife does not need to repay her Mehr to the husband depending on the circumstances of the divorce.

There are also two lesser-known ways of getting divorced. There is the Faskh-e-Nikah or Tafweedh-e-Talaq. Excuse my pronunciation!

The Faskh-e-Nikah is the dissolution of an Islamic marriage pronounced by a third party upon application by the wife, normally a Qadhi (a judge who sits in a Shariah court). The reason why a woman may seek dissolution of marriage by way of Faskh-e-Nikah is when the husband refuses to give Talaq. It could be because the wife is not happy that the man is not looking after her properly, or the marriage has broken down and the husband is refusing to give the wife a divorce, so you would ask for the Qahi to grant you a divorce.  Abroad you would apply to the Shariah Council, and you could also apply to the UK Shariah Council here in England.

Talaq-e-tafweez is a form of agreement, a bit like a prenuptial agreement. It’s made either before or after marriage providing stating grounds when the wife may seek divorce from her husband.  One of the most common grounds is if a husband took on another wife, as in Islam, subject to certain conditions, a man may take up to four wives, but a bride may specify in a marriage contract that if the man took on another wife, she could get divorced.

I actually went to see a local Imam at my mosque to ask about Talaq-e-tafweez and see how popular a form of divorce it was. He said he does get instances of Talaq-e-tafweez being used as a form of divorce, and sometimes the wife specifies a crazy long list of ‘circumstances’ and that they have to be watered down to the significant ones. There have to be really good reasons, it can’t just be that, for example, the husband does not cook the wife dinner! It needs to be more serious ground than that.

These last two methods of divorce under Islam, are for women normally to instigate the divorce process.

As we covered at the beginning, is it important to remember that if your Nikah was recognised as a legal marriage in the UK you need to get a civil divorce under the laws of England & Wales.

Yes, so if you have had a marriage that is recognised in the UK, just because you have entered the marriage under Islamic law you are not legally divorced and you would also need to end the marriage under civil law.

That’s so important. I have had people come to me where they have started a civil divorce and then for some reason the other party won’t grant the divorce. So, the two should really be side by side when you start divorce proceedings. It is possible to apply for an Islamic divorce at any time whereas under civil law your marriage needs to have been valid for at least a year. Your Islamic divorce can start before or after the civil proceedings, although my own advice would be that it’s best if they run parallel to each other.

Have you got any final words of wisdom?

I think let’s go back to the beginning. Any Muslim who is thinking of getting married, go and visit your local mosque. Imams are now more approachable, whereas in the past you may have shied away from approaching an Imam, more and more mosques are now offering matrimonial services.

If you are thinking of getting divorced, go and see someone who specialises in divorce, like me. Whilst I cannot help you get a divorce under Islam, I can guide you as to what steps need to be taken with regard to Islamic divorce and the civil process. I have links with local Imams at mosques that I can refer you to – there is help out there.

I am hoping that at some time in the future, Islamic marriage will become valid under UK law and you won’t need to have a further civil ceremony. There has been consultation on this but at the moment we are still behind, and I do think there needs to be something done. The government does need to make sure that rights are given to Muslim women in particular, as those who have just had a Nikah in the UK are left in a vulnerable position.

Well, thank you, Ruby. We appreciate your time. You can find out more about Ruby Tufail on our website, or general information on our legal services and divorce, on www.thpsolicitors.co.uk