Divorce

There are three main forms of Islamic divorce: talaq, khula and faskh. Talaq refers to a husband’s right to unilateral divorce, whereas khula is a means for the wife to be released from the marriage, and faskh is dissolution at the bequest of a Shariah authority, such as an Islamic scholar or Shariah Council.²⁶ A key difference between talaq and khula is that in the case of talaq the husband must ensure full pay­ment of the dower and thus financially more advantageous for women, whereas with khula as the wife requested the divorce, she may, in turn, have to return the dower to the husband.

Nonetheless, civil law does not resolve religious divorce, thus, the guidelines for petitioning a civil divorce highlight that divorce pro­ceedings may not dissolve the religious part of the marriage.²⁹ This, in turn, creates a further problem for British Muslims, especially where the husband may withhold the religious divorce, as was the case with many participants who attained a civil divorce certificate and pursued an Islamic divorce. Participants explained the importance of Islamic divorce to them.

To hear talaq meant it was official, you’ve severed the link with them [in-laws].

(Faiza)

Otherwise, people think you are still married.

(Fahima)

Religious divorce is more important to me. I needed freedom I needed my sanity.

(Henna)

Research shows that Muslims turn to religious frameworks and norms, for personal needs, and during a crisis, e.g.

During mediation, I asked my husband to give me divorce [talaq]. He said he will not give me a divorce. I asked him ‘why not?’ He wouldn’t answer me. I told him, it is more difficult for women to apply for divorce, whereas you can say it in front of witnesses and it is done. He said ‘I’m not going to do it.’ Later, I found out why it is because he did not want to give me back my gold [mahr].

(Jahanara)

Bano views imams as a linkage between mosques and Shariah Coun­cils, who also act as mediators resolving marital disputes.³⁵ The experts mentioned the use of imams, counsellors or Shariah Coun­cils was usually the last resort, and even then the clients may not reconcile.

People come to the imam or the mosque after they have tried to rectify the situation on their own. They would incorporate their family and trusted friends. The last resort would be to involve the imam.

(Imam #1)

The majority of clients [that come to the Sharia Council] do not reconcile. It is nice when it happens, but it is rare.

(SC Judge #1)

Mediation was not common among the participants, who described that their husbands refused mediation or the families including the in-laws objected to the involvement of an outsider.

We got the imam from the local mosque involved. The imam tried to mediate between us. My husband said he had no money and that he was feeling stressed. It was a case where he was not going to give the divorce.

(Rahima)

My family called the imam from the mosque. He came and lis­tened to my case, but said that I was at fault, I was shocked, and that my husband was a good man. The mosque did not agree to give me an Islamic divorce.

(Lubna)

These two cases demonstrate the extent of an imam’s authority, firstly a limitation, by not granting khula without the husband’s consent, and secondly, overriding powers to deny khula in dismissing the wife’s request. However, each case of khula may present a different outcome depending on the circumstances, though one imam commented where the husband refuses to grant a religious divorce, there is a need for a greater authority.

[Islamic] divorce has two aspects: mediation and the execution of divorce - the latter is a collective duty and requires a Sharia board. When the husband refuses to divorce a woman, where do they go? This is when they turn to a Sharia Council.

(Imam #2)

In alleviating the situation of withheld religious divorce, one of the imams viewed that the civil divorce was sufficient as an Islamic di­vorce, and no further action was required from either party. He cited the Hanafi School as evidence.

If they’ve obtained the civil divorce, even if the wife was the peti­tioner, and the husband signs the papers then it is consent; and in the Hanafi opinion Islamically they are divorced already. So they don’t really need to go through the Islamic divorce process but peo­ple still want to do that because they want to get a sense of comfort that they’ve gone through the Islamic way. So they can get some advice and guidance on what they can do after a civil divorce.

(Imam #1)

Others argue that civil divorce is not valid as an Islamic divorce, and go to the extent of issuing a fatwa (religious edict) that non-Muslims have no jurisdiction in the matter,³⁷ thus adding confusion for those who have already obtained a civil divorce.