How Does Islamic Divorce Work in England and Wales?
28 November 2019
Islamic wedding ceremonies that take place in England or Wales are not legally recognised unless a civil ceremony is also carried out. If a Muslim couple does marry in a civil ceremony as well as a religious ceremony, then they will be able to apply for a civil divorce alongside their Islamic divorce. However, if no civil ceremony has been carried out, the Court may not be able to assist in the divorce proceedings.
In this article, we look at how the divorce process in England and Wales works for Muslim couples.
Is Islamic Marriage Legally Recognised in England and Wales?
Under English Law, religious ceremonies that conform to the Church of England, Judaism or the Society of Friends (commonly called Quakers) are usually legally recognised marriages. Other religious ceremonies, including Islamic ceremonies, are usually not legally recognised meaning that a couple may need to take further steps to have a legally recognised marriage in England and Wales.
If a couple wishes to have an Islamic ceremony conducted in England or Wales, then they will need to also conduct a Civil Ceremony in order for their marriage to be recognised under English Law. If a religious ceremony takes place abroad and it is recognised in that country as a legal marriage, then the English Courts will normally recognise that marriage as being legally valid.
Muslim Marriage and Divorce
Under Islam, a marriage is normally undertaken by the signing of a Nikah, which is essentially a marriage contract. If a Nikah is undertaken in England or Wales without a civil ceremony then the marriage will be recognised under Islam, but it will not be legally recognised in England and Wales.
The likely consequence of this is that neither spouse will be able to rely upon English matrimonial law in the event of a breakdown of the marriage. In these circumstances, the couple may have limited options available in which the English Courts can assist. These options are usually dependent on whether there are children from the relationship and/or there is an owned property.
For those in an unrecognised marriage with children or an owned property, there are normally two routes available to settle financial matters:
- A claim under Schedule 1 Children Act – The purpose of this claim is to provide payment and/or property for the benefit of any children that the couple has together. This type of claim can be helpful where the primary carer for the children is left without anything.
- A claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) – The purpose of this claim is to establish whether a trust has been created in respect of the owned property. A successful claim would mean that one spouse is able to establish a share in the house that is owned by the other.
Both of these applications can be quite complex and we would not recommend launching a claim without taking independent legal advice. At Co-op Legal Services, our Family Law and Divorce Solicitors can carry out a comprehensive consultation for a fixed fee of £199 + VAT.
If the marriage is not legally recognised in England or Wales and the couple do not have children or own a property, then the English Courts will normally not be able to assist with the division of assets.
The situation is different if the couple have undertaken both a Nikah and a Civil Ceremony. Under these circumstances, the couple may wish to undertake an Islamic divorce, known as a Talaq or a Khula, alongside a civil divorce to dissolve both the religious and civil marriages. This would mean that they are divorced in the eyes of the law, as well as under Islam.
Civil Divorce Process in England and Wales
To dissolve the civil ceremony, there is only one ground for divorce, which is that the marriage has irretrievably broken down. This must have happened as a result of one of the five legally recognised reasons (or 'facts') for divorce:
- Unreasonable behaviour
- Two years separation (with consent)
- Five years separation
One person will need to complete the Divorce Petition, stating the reason for the breakdown of the marriage, and submit this to the Court. This will begin the civil divorce proceedings. As part of the civil divorce process, the Court will also decide how the matrimonial assets should be divided between the couple.