Before granting a divorce, the court needs to be satisfied that the marriage is in fact a valid one.
Under Islamic law (Sharia law), marriage is viewed as a contract by which the parties agree to live as husband and wife in accordance with the laws of Islam. A nikah contract (the marriage contract), while validating the religious element of a marriage, does not validate the marriage under the laws of England and Wales. The nikah will be recognised in England and Wales if the marriage has taken place in a country where the nikah is recognised as a valid marriage, for example in Pakistan, or where it has taken place in a mosque registered in accordance with s.26(1)(a) of the Marriage Act 1949. Alternatively Muslims often have a civil registry marriage as well as a nikah marriage.
If the marriage took place overseas, the validity of the marriage is demonstrated by a certificate of the marriage, or similar document, issued under the law in force in the country where the marriage took place; or a certified copy of the certificate or document obtained from the appropriate register officer. If the documents are not in English, they must be accompanied by a certified translation of the document.
English courts are able to grant a divorce to a valid marriage. However, many Muslims believe that an Islamic divorce is necessary to terminate the nikah. If a wife is unable to get a divorce from her husband, then she may apply to a Sharia council who may grant a divorce. Sharia councils in the UK operate under at least one of four recognised schools of thought. Before applying for divorce, Muslims should look for a Sharia council that accords with her religious beliefs.
Procedure at the Muslim Law (Shariah) Council UK
The applicant, the wife, completes an application form with copies of the marriage certificate and a signed personal statement outlining the reasons for a divorce. The fee payable is £175. Once the information has been processed, the respondent, the husband, will be issued with a notice and asked either to divorce the applicant or to provide written reasons to the Council for not doing so. If the husband does not reply to the first notice then a second one will be issued. If there is no reply again, then a third and final notice will be issued. If there is no reply then the case will be presented to the full board of the Council at its first meeting after the expiry of the 30 days, with a recommendation of dissolution of nikah.
At the request of the husband, the Council will allow a reasonable period of time for the husband to attempt a reconciliation. If the wife does not agree to a reconciliation after a few months then the Council will dissolve the nikah and issue a Divorce Certificate to the applicant.
If the husband agrees to a divorce subject to certain conditions, for example return of jewellery given to the applicant at the time of the marriage, the offer will be adjudicated by the Council and a decision will then be made. Claims on property and contact with the children cannot be adjudicated upon by the Council.
The Council will not issue a certificate of Islamic Divorce until the Council has received a copy of the Decree Absolute. If the husband gives written undertakings to the Council to agree to an Islamic Divorce after the Civil Divorce and related matters have been concluded, the Council will generally accept those undertakings and wait. However, if the respondent breaches those undertakings the Council will issue an Islamic Divorce.
Dowry
One of the essential elements in the nikah is the dowry (in Arabic, mahr). The dowry, which is any kind of wealth, is to be paid by the husband to the wife either at the time of the nikah and or a specified time after the nikah to be determined by the parties - e.g. upon divorce. If the marriage breaks down, the wife may want to claim any unpaid dowry. Sharia councils does not have any jurisdiction to enforce dowry payments, and as such the wife will need to make a claim to the English civil courts.
The wife may request that the courts award her her dowry in financial remedy proceedings. Case law indicates that dowry payments will be taken into account in proceedings to ensure that fairness and justice are upheld for both parties. In cases where there was a foreign cultural element, for example a dowry, the court will consider how the foreign courts would deal with the financial remedy proceedings - A v T (Ancillary Relief: Cultural Factors) [2004] EWHC 471 (Fam).
If the wife is unsuccessful in financial remedy proceedings, or the spouses did not have a civil marriage, she may make a claim for breach of contract if the husband refuses to pay the agreed sum as the contract is entered into in contemplation and consideration of the marriage, rather than being a matrimonial right- Shahnaz v Rizwan [1965] 1 QB 390.