How Legally Relevant Is Religion In Divorce?

Date: August 1st, 2012 - Written by: Brookman Solicitors

Henry Brookman discusses the extent to which religion can play a part in the divorce process. Published in The Times.

A recent case in the Court of Appeal has drawn attention to the issue of what happens when religious beliefs and the English divorce process collide after the court dismissed a Muslim doctor’s claim that he was unable to pay his ex-wife maintenance allowance because it was not in accordance with Sharia Law. The doctor argued that under Sharia Law – the religious and moral code of Islam – when a married couple separates, the wife then becomes the responsibility of her family once more. The doctor was told by the judge, Lord Justice Ward who imposed a £60,000 maintenance order on him, in England the rule is that “you share, and the starting point is equal division.”

The interaction between civil and religious marriages is a vexed point for many couples in England. English law will recognise a marriage as valid so long as it was contracted according to the law of the country in which it took place. In England, religious marriages are not recognised as valid unless they are within a few select religious bodies (e.g. the Church of England). An Islamic marriage does not fall within those exceptions and so most Mullahs will advise couples to contract a civil ceremony in addition to the religious ceremony.

When it comes to divorce, it is interesting to note that Sharia Law actually allows for divorces to take place – a marriage under Sharia Law also embodies a form of contract and so following a divorce, the logical step is enforcement of the contract. As is consistent with the aim of Sharia Law, which acts as a guide to living for Muslims, it details a provision for what the ex-wife would receive in a divorce. However, these days, it is symbolic rather than real, for example that she receive ‘six gold coins’ – holding very little meaning in today’s times. This means that it falls to English civil law to decide how the ex-wife shall be supported. As this case shows, the English courts will not accept any religious considerations as a guide to their decision making. 

Interesting problems arise when an Islamic marriage contracted in England is legally recognised in another country – for example in Iran (which recognises Islamic marriages contracted anywhere in the world) – even though it was not recognised in England.

Pre-nuptial agreements could provide a solution to Islamic couples wishing to uphold Sharia Law in their marriages but still to enjoy civil rights under English law. Although this is yet to be tested in the courts, a couple who agree to a well-drafted and thought out pre-nuptial agreement that reflects the provisions of Sharia Law could possibly then have that upheld by the English courts if they later divorce.

If you would like to know more about this issue please contact Brookman Solicitors for more information.

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