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Sharia Family Law

Posted
March 11, 2013
Family Law

Is an Islamic marriage recognised under English law?

An Islamic wedding is known as a ‘Nikah’ and often takes place at the couple’s local mosque.  The mosque in question must be registered in accordance with the Marriage (Registration of Buildings) Act 1990, for the marriage to be recognised as valid under English law.  If not, the effects can be far reaching as under English law, you will be treated as cohabitees instead of husband and wife.  As cohabitees, your rights are fewer and can affect your rights to property and over your children. Forced marriages In Islam, a woman’s consent is required prior to her marriage.  When this consent is not forthcoming or when a woman is forced to marry a man against her wishes, then the marriage becomes unenforceable under Sharia and English Law. The Sharia Council will be able to pronounce an annulment of the marriage and under English law, a Nullity Decree can be obtained from the Courts which will declare that the marriage was void from the start owing to the ‘duress’ used. Divorce in accordance with Sharia law If a couple decides to divorce, the husband can make up to three pronouncements of divorce – each one known as ‘Talaq’.  After the first Talaq, a period of approximately 90 days must ensue where the divorce is held in suspension.  Should the couple reconcile their differences within that time, then the marriage will continue.  Should their differences persist and both parties still seek a divorce – then the marriage will be treated as having ended and both parties may re-marry. Both the husband and / or wife are able to apply to the Sharia Council for an Islamic Talaq certificate, which can serve as evidence that they are divorced.  

If Talaq has been given abroad, in a country where Sharia Law is practised, then it will only be valid under English law if certain conditions have been satisfied. Sometimes when a woman seeks an Islamic divorce from her husband, he will not give ‘Talaq’ willingly.  If this is the case, then in order for the woman to re-marry she must obtain a ‘Khulla’ divorce from the Sharia Council.  The Sharia Council will write to the husband to inform him of her wishes for a divorce.  Their objective will be to arrange a meeting with both parties to discuss the divorce and decide whether to permit it.  Should the husband refuse to respond to their letters or attend the meeting, the Sharia Council will require further documentation to prove that there has been a period of separation between the parties.  

Once this information has been provided, the Council will make the final decision about whether or not to grant the divorce. Financial Rights after divorce In most sharia divorces, no spousal maintenance is owed to the ex-wife once divorced from her former husband, but the husband is under an obligation to maintain the children of the marriage.  Maintenance for a daughter ends when she marries and maintenance for a son ends when he commences full time employment. Personal possessions are to be retained by their owner but shared ownership of property should normally be divided according to each party’s respective contribution towards its purchase price. ‘Mehr’ In Islam, a marriage (‘nikkah’) is regarded as contractual agreement entered into by Husband and Wife.  One essential component of this contract is the provision for a ‘Mehr’ or Dowry.  The Mehr paid to the wife by the husband must be acceptable her.  It can take any form, ranging from a lump sum payment to property or even jewellery and can either be provided immediately upon their marriage or deferred to a later event.  Normally deferred Mehrs are payable on the occurrence of a certain event, such as divorce or the death of the husband. Sometimes, when couples are divorcing, the wife is not given her Mehr by her husband as per the marriage contract.  Under Sharia and Engish law, this can be treated as a breach of contract and can be enforced by the Courts. 

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