Divorce

Chapter 5
Divorce

Introduction

In a lecture on ‘Why Marriages Fail’, the Muslim cleric Shaykh Haitham al-Haddad (2009), speaking as a member of the ISC, addressed the issue of divorce. There is a ‘huge problem in terms of marriage breakdown’ in the UK, he began. In his experience some half of Muslim marriages in the UK encounter problems and many end. The children suffer most: ‘We are leaving our children to the streets and the streets are taking care of our children. Then all of us are wondering why we have so many gang problems within the Muslim community’. Marriage breakdown is the work of Satan and there is little worse than divorce. ‘Shari’a is very keen to keep the matrimonial relationship intact’, and many marital problems can be solved.

The present chapter continues discussion of the politicization of the Muslim family by focusing on marital breakdown, a matter of increasing concern among Muslims and other minorities (Qureshi 2014). Jhutti-Johal (2013: 210), for instance, cites a comment from a Sikh solicitor who also acts as a marriage-broker, reflecting on thirty years’ experience:

In the past I was happy to arrange a marriage because I knew it would last. However, now I am too scared. You can’t trust children or parents. In the past if things went wrong I was called in to speak to the couple, and we would tease out problems and things would be ok. However, today if there is a problem, children are not prepared to listen or talk.

The social and economic changes of recent decades (including work-stress) were, he said, affecting relationships between couples and with their respective families, leading to increasing incidences of marital breakdown and difficulties in effecting reconciliation.

There are three related components: getting a divorce, the financial settlement, what happens to children. The second and third are often the most fraught in their effect on the lives of those involved. Concerning Muslims, there is a substantial literature on financial settlements, in particular mahr, including its possible status within a prenuptial agreement (inter alia Fournier 2010a, Mehdi and Nielsen 2011). Often incorrectly glossed as ‘dowry’ or sometimes ‘dower’, mahr refers to money or valuables due to a wife if her husband divorces her; if she institutes a divorce, then her claim may be forfeit. Normally the mahr which is in two parts (‘prompt’ and ‘deferred’) is indicated in the marriage contract, often cursorily. Child custody is less well documented. If discussed at meetings of Shari’a councils, members usually remind each other that they should leave such matters to the family courts (Bano 2012a), or at least that their advice conform with what the courts might determine (Bowen 2013b). Imams in fact claim that Islamic and English law are not at variance in this respect; the best interests of the child are paramount in both.1 The present chapter will say little about children, nor does it cover international divorces, the recognition/non-recognition of which has many implications, for example for immigration status (Charsley 2012; Charsley 2013; Hobson 2008; Menski 2001; Shah 2007; Sona 2014; Warraich and Balchin 2006).

If, as Chapter 3 explained, Muslims in Britain marry twice, they may divorce twice. One is according to English civil law, essential if a civil marriage has been registered and the couple wish to marry again, the other is through Islamic law, essential for the woman if she is devout and wishes to remarry in accordance with religious practice and principle. This requirement is not confined to Muslims in Britain: in Sweden, for example, Muslims divorce in Swedish law at a district court, and in Islamic law using the offices of an Imam (Arvidsson 2011). The lack of a civil or religious divorce may place husband or wife, but especially the latter, in serious difficulties. Jewish women are in a similar situation concerning the divorce document (get) which must be ceremonially presented by a husband to his wife (Fournier 2010b describes the procedures; see also Fournier et al. 2013²). Failure to obtain a get endangers the status of the wife’s subsequent children (de Blois 2010; Douglas et al. 2011; Estin 2009; Rutten 2010). Devout Catholics whose marriage must be annulled by the Church according to stringent rules encounter similar difficulties, while Protestants may have problems persuading their church to conduct a marriage when one or both of a couple has previously divorced, though the Church of England permits the religious ‘blessing’ of a such a couple’s civil marriage, as happened with the Prince of Wales and Mrs Camilla Parker-Bowles in 2005.

Modes of Islamic Divorce

As Hamilton (1995) notes, neither Judaism nor Islam allow equal access to divorce on the part of men and women and this contravenes various international conventions, though she admits that the conventions may be difficult to reconcile with other rights concerning religious freedom. There are several modes of Islamic divorce including talaq (with several versions; see Pearl and Menski 1998 or Fournier 2010b for details), khul’a, mubar’at, faskh and talaq-e-tafweez. In practice, the categories are not always as distinct as they are portrayed.

Talaq

Husband initiates divorce. In some codes of Islamic law (and some Muslim-majority countries) a husband may divorce his wife simply by pronouncing talaq (‘dismiss’) three times (or once on three occasions). This is known as a ‘bare talaq’. In some jurisdictions, including Pakistan (Muslim Family Law Ordinance 1961) and Bangladesh, there is an extended procedure (‘procedural talaq’) which involves a husband giving notice in writing of the pronouncement of talaq to the Chairman of the Union Council of the ward in which the couple lives, with a copy for his wife. There are provisions for reconciliation during a 90-day period (iddat) when the marriage is in a state of suspension and the talaq divorce can be revoked.3 Unless revoked, after 90 days (or at the end of the wife’s pregnancy if she is with child) the divorce will take effect.

In the UK and other Western countries (Foblets et al. 2010; Fournier 2010a, 2010b, 2010c; Mehdi 2003, 2005, 2008, 2010), a talaq divorce is not recognized if uttered within the national territory. In Qureshi v Qureshi ([1971] the court had recognized a procedural talaq pronounced on the premises of the Pakistani High Commission in London, a decision which Pearl and Menski (1998: 384) call the ‘high water mark of liberality’. This was overruled by the Domicile and Matrimonial Proceedings Act 1973, Section 16(1): ‘No proceedings in the United Kingdom, the Channel Islands or the Isle of Man shall be regarded as validly dissolving a marriage unless instituted in the courts of law of one of those countries’. While no talaq performed in England is thus legally acceptable (for example Sulaiman v Juffali [2002]I), a procedural talaq obtained overseas in a country where it is valid, by couples who are citizens/residents/domiciles of that country, may be accepted, though what is a ‘procedure’ might be questioned, and depending on the circumstances such a divorce might not be recognized by the immigration authorities. With a talaq divorce the husband is required to forgo any claim to mahr or pay up if he has not done so already. If the marriage has not been consummated the wife is only entitled to half.

Khul’a

The wife initiates proceedings though the husband may be required to agree to a divorce by uttering talaq. According to Pearl and Menski (1998: 283) in ‘classical Hanafi law, the wife cannot insist on a khul, the husband must actually pronounce the talaq, and therefore it is an agreement by mutual consent’. This is the position taken by the ISC:

Once the husband agrees to divorce her in exchange for some money or the remission of her dower, the divorce is known as Talaq. It is as valid as the Talaq given by the man of his own initiative. Khul’a depends upon the agreement reached between the two parties. If the husband agrees to give Talaq provided that his wife either abandons her right to the dower (if the dower has not yet been paid) or return back the amount of the dower to the husband (if [it] has been paid).4

This interpretation is, however, controversial: some councils will not grant a divorce without the husband’s agreement, others will, and Khir concludes that:

most modern family laws have taken the moderate view that no-fault divorce can take place either upon the mutual consent of the spouses or by order of the court if the wife so wishes. The court can impose it on the husband, even if he does not consent, if the judge is convinced that the wife cannot tolerate the continuation of the marriage (2006: 300).

Additionally (and apparently unusually), should the wife apply to a Shari’a council for a divorce and investigation shows that the husband has misbehaved then the council may deny him the mahr. If, however, the mahr is to be returned it is held by the council for six months until the husband claims it, if indeed he does so.

Faskh/Faskh of Nikah

A judicial annulment of the marriage contract given by a properly constituted Islamic court (or qadi) on the wife’s petition where the husband either refuses to pronounce talaq, or simply fails to respond. The acceptable grounds vary between schools of law (Pearl and Menski 1998: 285 ff.) In the Hanafi school only the husband’s impotence is considered sufficient, but other schools recognize insanity, sexually transmitted disease, desertion, failure to maintain and so on. Fournier (2010b: 7) notes:

… the wife may apply for a faskh divorce, but only in so far as she can demonstrate to the court (qadi) that the limited grounds under which divorce can be granted have been met. It is basically a fault-based divorce initiated by the wife. In the case of termination of marriage by faskh divorce, the wife is entitled to mahr … Although this form of divorce is the most favorable to Muslim women, it is also the most difficult to obtain.

Mubar’at

Divorce by mutual consent (Pearl and Menski 1998: 284; Poulter 1998: 207). The wife may forgo all or part of the mahr to elicit the husband’s agreement.

Talaq-e-tafweez

Sardar-Ali (2013b: 128) adds that since it is a standard part of a nikah contract in Pakistan, ‘it is curious that this norm has not adopted within the Diasporic communities in Britain as an “Islamic” form of divorce nor actively canvassed by Shariah Councils, and Muslim leaders do not encourage it’. Certainly Muslim women in Britain apparently make little use of it, though the MLSCUK provides a delegation form on its website, and indeed did so at the time of Carroll and Kapoor’s survey (mid-1990s). The Muslim Marriage Contract actually makes delegation ‘automatic’, adding that this

reflects a recognition of changes in the Muslim world, including women’s greater public roles, educational achievements and financial autonomy … There is no evidence from countries which have recognised this provision of fiqh that women use this right irrationally. Women usually have far more to lose socially from a divorce than men, so it is to be expected that they would only use this right with great caution.5

One senior Muslim legal academic has nevertheless commented that members of Shari’a councils realize that if marriage contracts routinely contained a delegation clause they would be ‘redundant’, a remark which underlines the perception that some Muslims and non-Muslims have of such councils as conservative, patriarchal and unnecessary.

Council Procedures

In British South Asian Muslim households attempts to resolve the breakdown of a marriage and reconcile the couple usually begin within the family, but if these fail, disputing parties seeking a divorce may be advised to approach individual religious practitioners (Qureshi 2014) or a Shari’a council. The councils are thus a ‘continuation of the process of dispute management by the family’ (Bano 2007: 19). Their dealings with petitioners typically go through five stages (Bano 2012a, 2012b): the applicant contacts the council, perhaps on the recommendation of a friend or family member, often by phone; an application is made (on an appropriate form) on the basis of which the council determines whether there are likely grounds for a divorce; the case is investigated, where possible testing the arguments of both sides, face-to-face; reconciliation is attempted, but if this fails a divorce certificate may (eventually) be issued.

Bowen observes of the ISC that its procedures

combine social pragmatism, a certain epistemological wariness, and an application of fairly well-established principles for dissolving marriages. Moreover, those ISC scholars who come from South Asia frequently refer to practices in Pakistan and India to justify their sense that a body of Islamic scholars, acting outside the state, has the right to grant women judicial divorces. Some also think that ideally the British state would delegate some of its divorce business to them (2010a: 13).

These rules include the conditions for dissolution which usually apply under Shari’a: absence of husband, neglect, abuse, non-consummation and so on.6 Regarding the latter, Bowen comments (2010a: 12) that consummation is assumed to have occurred ‘if the couple had been in khalwat [isolation] and could have touched each other’s bodies’. There are in fact numerous references to wives who state non-consummation as the grounds for divorce (for example the wife who complained that her husband was impotent and declared himself ‘medically unfit’ on the wedding night, in Shah-Kazemi 2001: 28). There is evidence that some such cases concern gay husbands who have been cajoled into matrimony (Nachmani 2009).