A guide to Islamic marriages and divorces

About the Author

Name: Sumayyah Saloo

Title: Trainee Solicitor

Email: Sumayyah.Saloo@LinderMyers.co.uk

August 4th, 2022

Arranging the marriage:

Marriages are commonly arranged by the parents, family members or close relatives. The individuals are then free to get to know their potential spouse (in the presence of a chaperon) before making the decision to marry.

It is important to note that it is forbidden in Islam for anyone to force, coerce or trick a person into marriage.

The wedding ceremony: Nikah:

The Islamic marriage ceremony is known as the ‘Nikah’. This contract is legally binding under Islamic law and is also a social agreement which bestows rights and obligations on both parties. There is a requirement for the contract to be agreed verbally and in writing.

The Nikah ceremony is conducted by an Islamic judge, imam or anyone who is trusted and familiar with Islamic law. The ceremony is generally intimate, including the bride and grooms immediate family and friends. The ceremony is commonly held at a mosque but can be conducted at the bride’s home or any other venue that is appropriate for a religious ceremony.

The groom represents himself at the ceremony and the bride is represented by her negotiator, known as the ‘Wali’, and two other witnesses of her choosing. The Wali and witnesses are male guardians who are there to represent the bride’s best interest. The Wali and witnesses must be people with mental capacity which means that minor children or people who have a limit in their capacity to understand the legal contract cannot act.

The formal proposal of marriage, known as ‘Ijab’, is commonly given first by the bride. The bride will give Ijab to her Wali and the witnesses who will confirm this at the official ceremony. The Ijab should be given on the day of the ceremony or a couple of days in advance. It should not be given too early.

At the ceremony, the imam or person officiating the marriage will normally start with a sermon and recitation from the Quran. The imam will then ask the Wali to confirm that the bride has agreed to the marriage and to confirm the ‘Mahr’ (dowry) that has been agreed. The imam will then ask the groom to confirm if the marriage is agreed by reciting the word ‘qabul’, which is the equivalent of saying I do. There is no requirement for any specific vows to be said.

Once the ceremony is complete, the bride and groom are married and a certificate is provided as proof. This religious ceremony or certificate of marriage is not recognised in the UK so a Muslim couple must still have a civil ceremony to make their marriage legally binding under English law.

Divorce:

Divorce is allowed in Islam but is seen as the most disliked permissible action a Muslim can make. The Quran states that “a divorce is only permissible twice; after that, the parties should either hold together equitable terms, or separate with kindness” (chapter 2, Verse 229). The divorce should be seen as a last resort however there should be no shame placed on the request of a divorce. This is because Allah (God) provides that sometimes this is in the best interest of all of the parties involved and no-one should remain in a situation where they are suffering or distressed.

There is a requirement that the parties treat each other with respect whilst going through the divorce process. The couple are required to evaluate the relationship and try to reconcile. The couple should communicate their feelings, fears and needs with each other. The assistance of an Islamic counsellor should be used if communication is difficult. If reconciliation does not work, the couple can proceed with the next step of the divorce.

The next step is to appoint a family member from each party to help evaluate the situation and acknowledge each parties strengths and weaknesses. The family members should sit with the couple and see if they can identify any areas that can be worked on to improve the situation and possible reconciliation. If this fails, then the family should leave the couple to pronounce the divorce

The divorce is initiated by the husband and is known as the ‘Talaq’. The husband must pronounce the talaq and this can be done verbally or in writing. It is best practice for a witness to be present. As the husband has pronounced the divorce, the wife has a right to keep the mahr agreed at the nikah.

The general rule is for the talaq to be given three times. This can be done all at once, in which case the couple must divorce, or can be given in stages. It is commonly advised for the talaq to be given in stages so that the couple can continue to work on the marriage with the possibility of staying together.

If for some reason the husband refuses to pronounce the divorce, the wife can make an application to the sharia council to provide the divorce. This is called Khul’a and is the process by which the wife can break the marriage contract. Since the wife is breaking the contract, she forgoes her right to keep the Mahr and may need to return this to the husband. The sharia council will deal with the divorce is a manner which is similar to English Law and will provide papers to confirm the divorce which will be served on the other party. The wife would need to provide proof and evidence of the cause of the divorce and must show that the husband has not fulfilled his responsibilities.

Any Islamic divorce process has a three month waiting period before the divorce is finalised. Reconciliation is still encouraged during this time and should the couple wish to end the divorce and stay married, they may do so (provided the talaq hasn’t been given three times). If the couple do decide to divorce at the end of the waiting period, it is best to do this in the presence of two witnesses who can verify that the parties have fulfilled all of their obligations and that the final talaq has been pronounced.

If after the divorce is finalised, the couple decide to re-marry each other, a new marriage contract and Mahr must be agreed. Re-marrying each other can only be done twice after which the law states that after the third divorce they cannot remarry each other again.

Finances:

During the nikah, the bride’s mahr, commonly known as the dowry, is agreed. This is a requirement of the marriage and is essentially a gift from the groom to the bride. The gift remains the bride’s property as security in marriage and must be paid directly from the groom to the bride. The Mahr can be money, gold, property or any other valuable assets the bride wishes and can be paid in one lump sum, as one gift or can be a schedule of payments.

As mentioned above, when the husband initiates the divorce it is the wife’s right to keep her Mahr. There is no other requirement for a husband to continue to support the wife once the divorce is finalised. Though this is not a set rule and the parties can negotiate their assets and divide these in a manner they see fit. An Islamic counsellor can be used to assist in the matter

Children:

Children are given the highest responsibility when parents consider divorce. The financial responsibility of any children from the marriage lies primarily with the father. The child maintenance should be agreed in a manner which is in line with the father’s financial circumstances.

When considering child arrangements on divorce, there are again no set rules. The couple can make arrangements that are best for the children. The guidance states that they must take into account how to best provide for the child’s emotional and physical needs.

Conclusion:

It is important to have an understanding of the religious aspect of a divorce when dealing with a Muslim client. By being aware of the other factors that affect their separation we can see the bigger picture of the commitments or pressures they may be facing which may affect their availability or finances in the legal separation/divorce.

Terminology:

Islam = religion

Muslim = a person who practices Islam

Nikah = Islamic marriage

Imam = Islamic leader

Wali = brides negotiator

Ijab = proposal of marriage

Qabul = acceptance of marriage

Mahr = brides gift

Talaq = divorce

Khul’a = wife initiating divorce

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