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A Practical and Legal Analysis of Islamic Marriage, Divorce and Dowry

Charlotte Proudman, barrister, provides some legal and practical guidance on Islamic marriage, divorce and dowry and describes the procedures at Birmingham Central Mosque's Sharia Council.

Charlotte Proudman, barrister

This article is intended to provide family lawyers in England and Wales with some practical and legal guidance on Islamic marriage, divorce and dowry. In order to offer guidance beyond the purely theoretical or jurisprudential, I have described in particular the practice in Birmingham Central Mosque's Sharia Council.

1. Nikah Contract
In Sharia law marriage is viewed as a contract by which the parties agree to live as husband and wife in accordance with the guidance contained in the two primary sources of the Sharia, the Qu'ran and the Sunnah of the Prophet Muhammad. One of the essential elements of a nikah (Islamic marriage contract) is that the husband agrees to pay the wife a dowry (see below).

Although Muslims believe that a nikah contract performed in England and Wales is valid in the eyes of God, it is not a valid marriage per se under the law of England and Wales. The parties are merely cohabitees. Thus many Muslims marry in a registered mosque in England and Wales in accordance with S 26(1)(a) Marriage Act 1949 or undergo a civil marriage as well as a nikah.

FPR 2010, PD 7A, 3.1 provides that the validity of a nikah conducted overseas, if undisputed, is proved in England and Wales by the production of a marriage certificate or similar document issued under the law in force in that country; or a certified copy of such a certificate or document obtained from the register of marriages kept under the law in force in that country. Where a nikah contract is not in English it must be accompanied by a translation certified by a notary public or authenticated by a statement of truth.

2. Islamic Divorce
In the event of a divorce where a civil marriage was entered into, the English courts can pronounce a decree absolute and end a valid English marriage. However, since Muslims believe that no human jurisdiction can supersede Sharia law, many Muslims believe that an Islamic divorce is necessary to terminate the nikah contract, for complete assurance that they are divorced. Since the English courts cannot pronounce Islamic divorces, a Muslim must apply to a Sharia council to obtain a Sharia divorce. 

Sharia councils
A study conducted by Civitas, an independent think tank, in 2009 found 85 Sharia 'councils' operating in the UK. These bodies included Sharia councils, informal mechanisms, such as local mosques, and the Muslim Arbitration Tribunal ('MAT'), which is able to make legally binding decisions in accordance with the Arbitration Act 1996.

All Sharia councils operating in the UK apply at least one of the four recognised Islamic schools of thought: Hanafi, Shafi'i, Maliki and Hanbali. Consequently each Sharia council applies different interpretations of Sharia law, often resulting in enormous disparities in the way in which Sharia councils operate and the decisions they reach. Not surprisingly, many Muslims who seek an Islamic divorce through a Sharia council engage in what may be described as "forum shopping". Some Muslims will contact a number of Sharia councils to ascertain their school of thought before making an application for an Islamic divorce. For example, the Ahmadiyya community, which belong to a distinct sect of Islam, usually resolve their legal disputes through Ahmadiyya Sharia councils only.

While the MAT and some Sharia councils may rule on a wide range of legal disputes from domestic violence to child residence, over 90% of the caseload of most Sharia councils consists of Islamic divorce.

Birmingham Central Mosque: Islamic divorce process
To gain a greater insight into the Islamic divorce process I attended Birmingham Central Mosque's Sharia Council to observe the Sharia divorce process. Established in the late 1990s, the Sharia council rules on Islamic divorce only and applies all four Islamic schools of thought to reach what the arbitrators consider to be a just and fair decision. However, having attended a number of Sharia councils in England, it is important to note that all Sharia councils are distinct in their Islamic divorce approach. I therefore consider two Islamic divorce processes conducted by Birmingham Central Mosque's Sharia Council: first, the Islamic divorce process appropriate to parties who have entered into a nikah contract but have not registered their marriage under English law; and, second, the Islamic divorce process appropriate where the petitioner has obtained a decree absolute from the English courts.

Islamic divorce process: Nikah contract but no valid civil marriage
Growing numbers of Muslims are entering nikah contracts without undergoing a civil marriage. Sadly many Muslims believe their nikah contract is registered under English law, only to discover upon divorce that they are merely cohabitees. When there is a valid nikah contract but the marriage is not registered under English law, Birmingham Central Mosque's Sharia Council implements a gender distinct procedure for Islamic divorce.

Petitioner: Husband
Men can divorce their wives unilaterally by pronouncing talaq three times either consecutively or on three separate occasions depending on the Islamic school of thought by which the married couple abide.  Once talaq has been pronounced, the wife enters what is known as the idda period which lasts for three menstrual cycles (three months). If the husband and wife reconcile within the idda period, the marriage continues. In the event that they have not reconciled within the idda period, the marriage comes to an end. If the wife is pregnant, she will have to wait until the child is born before the idda period commences.

Although the husband is able to divorce his wife unilaterally without involving a Sharia council, the husband and/or the wife may apply to the Sharia council for an Islamic talaq certificate, which can be used as evidence that the couple are now divorced.

Petitioner: Wife
Unlike men, women cannot unilaterally divorce their husbands. As a result 98% of Islamic divorce petitioners at Birmingham Central Mosque are women. 

When a wife approaches the Sharia council to obtain a divorce she is asked to complete an application form, provide an acceptable form of ID, together with a copy of her nikah contract, and pay a fee of £100 to cover administration costs (a further £100 will be payable to the Sharia council when issued with a divorce certificate). If the petitioner does not have a copy of the nikah contract, she will be required to provide the Sharia council with a sworn statement along with evidence that the marriage took place, e.g. wedding photographs.

At the application stage, the wife will also be asked upon what ground/s of divorce she intends to rely. Birmingham Central Mosque applies 16 grounds of Islamic divorce: for example, desertion, polygamy without a wife's consent, intolerance of a husband's consumption of alcohol and/or drugs. Once the grounds of divorce are decided, the petitioner must then provide as much evidence as possible to substantiate her case. For example, if the petitioner alleges domestic violence, she will be asked to provide copies of court orders, medical reports and police records.

Upon completing the application stage, the petitioner will be invited to meet with the Sharia council's reconciliation unit to discuss the marriage breakdown.

Following the reconciliation meeting, the Sharia council will send the respondent up to three letters, putting the respondent on notice of the petitioner's divorce application and requesting an immediate response. If the respondent replies to the Sharia council's letter, a joint reconciliation meeting between the parties will be arranged, providing both parties agree.

In the event that the respondent does not reply to any of the Sharia council's letters or the joint reconciliation meeting is unsuccessful, the next stage involves the parties presenting their case before the panel of arbitrators.

Three Sharia law arbitrators sit at Birmingham Central Mosque on one day of each month. During their sitting they often rule on over 20 divorces.

At the final hearing the petitioner will present her case orally before the judges. Very few respondents attend; however if they do attend, they are also given the opportunity to present their case in the presence of the petitioner or separately.

Both the petitioner and respondent are asked to bring to the final hearing two witnesses to the events surrounding the marital breakdown. If they are unable to produce two witnesses they must provide reasons for their failure. In such circumstances, it is usual practice for the arbitrators to continue to arbitrate without the required witnesses. 

If the petitioner and respondent have children of the family, the petitioner will be asked about current contact arrangements. The arbitrators emphasise the importance of contact and appeal to the mother to facilitate contact. However, Birmingham Central Mosque does not have jurisdiction to rule on child related matters, as jurisdiction is reserved to the civil courts. Therefore the Sharia council can only emphasise the importance of contact without enforcing it.

On the basis of the case presented to them, the arbitrators will decide whether the petitioner should be granted a Sharia divorce. If they do so, the next stage is for the arbitrators to decide what 'type' of divorce should be granted. This will depend on the petitioner's and respondent's circumstances.

There are three types of Sharia divorce following a wife's petition:

  1. Khula is given when a husband and wife have consummated the marriage and the wife asks the husband for a divorce and the husband agrees. Once a khula has been pronounced and the idda period has come to an end, the husband and wife are divorced.
  2. Tafreeq (dissolution) is granted when the husband and wife have consummated the marriage and the wife wants a divorce but the husband refuses to give his wife a divorce. Once the arbitrators agree that a tafreeq should be pronounced and the idda period has come to an end, the marriage is dissolved.
  3. Faskh (annulment) is pronounced by the Sharia council when a marriage is fundamentally flawed (e.g. forced marriage) and the marriage has not been consummated.

Once the divorce is finalised the petitioner and respondent are issued with an Islamic divorce certificate.

Islamic divorce process: Petitioner has obtained a decree absolute
Where there have been parallel civil proceedings the Islamic divorce is swiftly granted. Upon obtaining a decree absolute from the court, the husband or wife may apply to Birmingham Central Mosque's Sharia Council to obtain an Islamic divorce. The petitioner must submit a completed Islamic divorce application form, provide a cheque for £200.00 and a copy of the decree absolute certificate. The Sharia council will then issue the petitioner and respondent with an Islamic divorce.

In the event that the respondent wants to object to the petitioner's application for an Islamic divorce, the respondent is entitled to make representations before the Sharia council but it is most unlikely the Sharia council would refuse to issue an Islamic divorce as a decree absolute demonstrates that reconciliation is highly unlikely.

Matrimonial Causes Act 1973, Section 10A: Proceedings after decree nisi: religious marriage
The English courts do not have jurisdiction to speed up the process of gaining an Islamic divorce. Section 10A of the Matrimonial Causes Act 1973 can only stay a decree nisi until a religious divorce has been pronounced in Jewish marriage cases. Section 10A has not been extended to Muslim marriages.

For more information on this provision, see Religious Marriages: Staying a decree absolute in order to increase the chances of obtaining a religious divorce, written by the author.  

3. Dowry

One of the essential elements of a nikah contract is the dowry. The dowry is to be paid by the husband to the wife either at the time of the nikah and/or at a specified time after the nikah to be determined by the spouses, e.g. upon divorce. The terms of the dowry are included in the nikah contract. Following marital breakdown, the wife may want to claim any unpaid dowry. The Sharia councils do not have jurisdiction to rule upon or enforce dowry payments, thus the wife will seek legal redress through the English civil courts.

If the parties have entered into a civil marriage, the wife may request the English civil courts to award her her dowry in ancillary relief proceedings. Case law indicates that dowry payments will be taken into account in such proceedings in accordance with S 25 MCA 1973 to ensure that fairness and justice are upheld to both parties, particularly where cultural or religious beliefs advocate the importance of dowries (see NA v MOT [2004] EWHC 471 (Fam) [2004], All ER (D) 238, Otobo v Otobo [2002] EWCA Civ 949, Uddin v Choudhury & Ors [2009] EWCA Civ 1205).

This is not the only remedy available for wives who wish to obtain their dowry. Those who are unsuccessful in claiming their dowry amount in ancillary relief proceedings and others who did not enter into a civil marriage have the option to issue a claim against their husbands for breach of contract if their they refuse to honour the (nikah) contract and pay the contractually agreed dowry amount. The first significant dowry case in English contract law was Shahnaz v Rizwan [1965] 1 QB 390. The plaintiff claimed a payment of £1,400 as the sterling equivalent of the deferred dower specified in an Islamic marriage contract, payable on the dissolution of the marriage, which occurred when the husband divorced the plaintiff by talaq. Winn J upheld the plaintiff's claim on the ground that it was based on a recognised contractual obligation, enforceable under Islamic law by ordinary civil action (aside from matrimonial proceedings) and that there was no reason why the same remedy should not be afforded here.

Conclusion
At present, some may argue that Sharia councils serve a purpose in ruling on Islamic divorce only. However, it is important that the Sharia divorce process implemented by the Sharia councils and even the MATs is not contrary to English law; for example, the cost of an Islamic divorce should not vary according to the gender of the petitioner, as this is a form of gender discrimination contrary to the Equality Act 2010.

Although Birmingham Central Mosque's Sharia Council only rules on Islamic divorce, other Sharia councils and even the MAT rule upon child residence, child contact disputes, domestic violence, forced marriage and many more family related matters which many argue should be reserved for the civil courts. Recognising the potential problems of "arbitrators creep", Baroness Cox is sponsoring the Arbitration and Mediation Services (Equality) Bill which aims to prevent Sharia councils and the MAT from ruling on family and criminal matters within the British court's jurisdiction. It will be interesting to see how far the Bill progresses through the Houses of Parliament.

In any event, it is hoped that there will be greater encouragement for married couples to register their nikah contracts under English civil law. This in turn will ensure that the parties, and in particular wives, are afforded all their rights upon divorce according to English civil law. If increasing numbers of nikah contracts are registered under English civil law, the English courts are likely to see an influx of ancillary relief applications by wives requesting financial relief including payment of their dowry. At that point the courts may be persuaded to give greater recognition to the custom of dowry in ancillary relief proceedings. Therefore there will be no need for wives to pursue separate proceedings under contract law to obtain their dowry amount, which may further protract legal proceedings.

31/1/12