by Sarah Al-Jourani

Sarah Al-Jourani, a Sharia specialist family solicitor provides advice on sharia law and what the legal rights are for those in civil partnerships.

Islamic marriages and divorces conducted in England and Wales are not legally recognised unless they are combined with the civil (legal) requirements. A lot of my clients often find themselves stuck, wanting an Islamic divorce in England, but finding that there is no legal mechanism to help them obtain one. 

So, here are some pointers on how to avoid pitfalls of Islamic marriages and divorces.

Married abroad

If you enter into an Islamic marriage abroad and it is recognised in the country that it took place in to be a legal marriage, then your marriage may be recognised to be legal in England and Wales. This means that you cannot register the marriage, as you are already married. However, if you have an Islamic marriage only in England or in a country that does not recognise the marriage to be legal, you may not be recognised under the law in England and Wales to be married and therefore you will not have the same rights as someone who is.

Protecting your rights in an Islamic marriage only

If you do not want a legal marriage in England, only an Islamic marriage, you can look to protect your assets by way of a Cohabitation Agreement (sometimes also called a Separation Agreement). This document works to set out what will happen to your joint assets and the family home in the event of a separation as the law that would apply to finances in a divorce would not apply to you. You could even look to add provisions within the agreement that allow for a separation of your finances in a Sharia compliant way.

Getting a prenuptial agreement

If you want to enter into a legal marriage, in addition to an Islamic marriage, you could instruct a lawyer to advise you on entering into a prenuptial agreement. This document will set out how your finances are to be separated in the event of a divorce and can be done before or after the marriage (known as a post nuptial agreement if done after). This document can be drafted with provisions that align with Sharia law to allow for a Sharia based financial separation – providing that it does not contradict the necessary laws in England and Wales.

If you do not want a legal marriage in England, only an Islamic marriage, you can look to protect your assets by way of a Cohabitation Agreement.

One Talaq is enough

You do not need to give or receive three Talaqs to be divorced in Islam. This is a big misconception which is often misinterpreted. One Talaq given clearly is all that is necessary. Followed by a three-month Iddah (waiting) period. Providing the wife is not pregnant and there is no reconciliation during that three-month period, the divorce is final. It is better and preferred for the Talaq to be given in the presence of witnesses and for paperwork to be given from an Islamic body such as a mosque or the Sharia Council for the avoidance of doubt, but it does not have any effect on the Islamic divorce in England if there is no paperwork.

Getting a Khula or Faskh

As a wife, if your husband is refusing to give you Talaq you can apply for a Khula or even ask for a Faskh. A Khula is the process in which a married woman initiates the divorce and it is agreed by the husband. The Iddah period will still apply and under Sharia law, the wife should return her Mehr. If the Husband does not agree to the Khula, an Islamic body can dissolve the marriage by way of Faskh if the reason for the application meets one of the recognised grounds such as the husband absconding or grossly neglecting his wife.

Wife holding power of Talaq

To get ahead of issues with Talaq, a wife can request (by agreement) for power of Talaq to be given to her in the Nikkah agreement. This is known as Talaq al tafwid and can have conditions applied to it in the Nikkah agreement. It is important to obtain advice before entering into a Nikkah agreement in England and Wales to understand the legalities of the status of your relationship and your rights in both Sharia law and the laws of the country.

A wife can request (by agreement) for power of Talaq to be given to her in the Nikkah agreement. This is known as Talaq al tafwid and can have conditions applied to it in the Nikkah agreement.

As you can see, there is a lot of advice that can be given and a lot of misconceptions and misunderstandings about Sharia family law and how it can work in England and Wales. I feel passionately about sharing my knowledge and education on this very complicated area of law and ensuring fairness and justice is applied.

More information

I have written a series of Sharia family law articles which address these issues further:

Mahr:https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102ior2/sharia-series-mahr-and-the-english-court-system

Divorce in Dubai:https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102iyan/sharia-series-marriage-and-divorce-in-dubai

Triple Talaq:https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102iu1r/sharia-series-talaq-talaq-talaq-a-triple-threat-a-look-at-the-validation-of

Validity of Islamic Divorce:https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102imsx/sharia-series-validity-of-marriage-a-focus-on-tousi-v-gaydukova-2023

Void, voidable or non-marriage:https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102irc2/sharia-series-void-voidable-or-non-marriage

Sarah Al-Jourani is a Family Law Solicitor who has been with Irwin Mitchell since 2015. She deals with all aspects of family law including divorce, financial settlements, child arrangements and in international and Sharia family law matters. Her contact details are provided below.

Mobile: 07747457383

Email:Sarah.AlJourani@IrwinMitchell.com

Sarah Al-Jourani | LinkedIn

Sarah Al-Jourani | Family Law Solicitor Sheffield| Irwin Mitchell