Sharia Series; talaq, talaq, talaq – a triple threat? A look at the validation of Islamic divorce.
Earlier in this Sharia Series, I explored Islamic marriage, the process and the recognition, highlighting the key requirements for an Islamic marriage to be recognised as a legal marriage in the courts of England and Wales. It’s equally important, therefore, to also consider the Islamic divorce process and legal recognition within the jurisdiction of England and Wales.
Islamic Divorce
Divorce in Islam is permissible but should always be a last resort with certain steps being exhausted by the spouses first, such as Islamic counselling. Some couples will opt to use family members for the arbitrations, whilst others will turn to professionals within the religious community. If that fails, the process to follow depends on the party that is initiating the divorce.
TALAQ
If the husband is initiating the divorce, this process is known as talaq. Only the husband has the right of talaq, unless the power of talaq has also been provided to the wife in the marriage contract (known as talaq i tafweez.)
For talaq to take place, the husband needs to pronounce to his wife clearly that he is ending the marriage, and providing talaq. This is a unilateral repudiation of the marriage. It is not necessary for the talaq to be provided in writing, or to be witnessed. However, some Islamic scholars will say that the ideal talaq is pronounced clearly by the husband whilst the wife is not menstruating.
Once the talaq is pronounced, there is a waiting period of three months before the marriage has ended. This period is known as the iddah. During that period, if the parties reconcile then the marriage remains valid. If the parties choose to reconcile after that period, a new nikkah is required for the marriage to be recognised to be valid under Sharia law.
Triple talaq
The reconciliation can only take place twice, and therefore upon a third talaq there can be no reconciliation during the iddah. This is known as the ‘absolute’ talaq. Some husbands may choose to give three talaqs at once, which will essentially mean that there is no availability for reconciliation. Another option sometimes exercised is that a husband will give one talaq per month during the iddah period, which will again mean that the divorce is final with no possible reconciliation.
The practice of triple talaq has been banned in many countries, with India criminalising the act under the Muslim Women (Protection of Rights on Marriage) Act 2019.
Once a final talaq is complete, the parties are not able to remarry unless after their divorce the wife remarries another man and that second marriage is ended by divorce or death.
KHULLA
The process of a khulla is an Islamic divorce in which the wife initiates divorce proceedings. The general consensus of the Islamic schools is that a husband’s agreement is required for a khulla to be valid.
The iddah period will apply again and the parties can reconcile during the khulla without need for a new nikkah. Khula is a final divorce and if the parties do not reconcile during the marriage, it will not be permissible for them to remarry in a similar manner to the triple talaq.
FASKH
If the husband does not agree to the Khula and does not pronounce talaq the wife can consider applying to dissolve the marriage by way of a faskh. Mufti’s and Islamic institutions such as the Sharia Council have the power to dissolve a marriage if one of the reasons has been met. These can be because the husband hasn’t met the fundamental rights of the wife such as her husband providing her with necessities such as clothing and food, and a marriage free from any kind of violence.
Again, the three-month iddah will apply following the pronouncement of the faskh.
Civil recognition
Similarly to Islamic marriage, an Islamic divorce which takes place in the jurisdiction of England and Wales is not recognised to be legal and therefore does not end the civil marriage.
Generally, for a foreign divorce to be recognised in England and Wales, it must meet the following criteria:
- The order must be effective in the law of the country in which it was obtained; and
- At the date at which the order is sought, either party to the marriage will need to be habitually resident, domiciled or a national of the country in which the order was obtained.
Therefore, if either party were to obtain an Islamic divorce by the aforementioned processes in an Islamic state which recognises the marriage to be valid and effective, the divorce may also end the civil marriage within the jurisdiction of England and Wales.
Some parties may also choose to obtain a declaration of the divorce by way of an application to the High Court or Family Court which is compliant with the Family Law Act 1986, part III.
Transnational divorce
It is important to note the effect that a transnational divorce can have. A key case is the 2021 case of Hussain v Parveen in which the court considered whether the wife’s first divorce had been concluded in a valid manner. The parties to the proceedings were the wife and her second husband.
During the initial divorce, the first husband pronounced talaq by way of a letter given to the wife’s second husband, which a mosque in Bradford converted into a certificate. This was later registered by the wife with the Union Council in Pakistan which was the process to validate the divorce in Pakistan.
Sections 2 and 3 of the Recognition of Divorces and Legal Separations Act 1971 was considered, and in particular the requirement for the institution of the proceedings taking place in being in the same country in which the divorce took place. It was concluded that the divorce between the wife and the first husband could not be recognised in the English courts as the divorce was not obtained in a single act.
The conclusion of Lord Ackner in the case of R v Secretary of State for the Home Department ex parte Ghulam Fatima [1986] was considered by the court due to its relevance:-
“In my view the word ‘obtained’ connotes a process rather than a single act. To obtain a divorce a party must go through a process, in the same way that a person obtains a university degree or any other qualification. If that process is part of a judicial process (proceedings) and therefore linked to one judicial authority, it seems to me that there is logic and sense in saying that the proceedings must begin and end in the same place. Accordingly, the mere fact that the divorce is ‘obtained’ in the sense of ‘finalised’ or ‘pronounced’ in one country cannot in my judgment dissociate the process of ‘obtaining’ it from the proceedings in which it was obtained.”
Islamic divorces can be very complex, especially as there are no jurisdiction restrictions to an Islamic divorce being valid regarding the Islamic marriage in Sharia law. It is important for parties to seek advice before proceeding with an Islamic divorce, especially one that may give rise to transnational issues.
Read more about Irwin Mitchell's expertise in Islamic Divorce.
