‘Of all the things Allah has allowed, divorce is the most disliked.’

Divorce is only for dead marriages. If there is any possibility of a reconciliation then the divorce should not go through. It is a Muslim spouse’s duty to do everything possible to save the marriage, and for all other Muslims to do their utmost to help save the marriage. Nevertheless, if the marriage has definitely broken down, honourable divorce is sanctioned in Islam, and is preferable to people being obliged to carry on living in unhappiness, despair and unIslamic conditions.

There are numerous agencies that will give advice and help to a couple in difficulties – religious leaders, doctors, the Muslim Women’s Helpline, the Marriage Guidance Council, Relate, the Family Planning Association, the probation service, child-care officers, etc. The husbands and wives generally have to seek this help for themselves, but sometimes a solicitor will put clients in touch with suitable agencies.

In good Islamic practice, before any effort is made to seek a divorce, all efforts possible should have been made to solve the problems and reconcile the spouses. A Muslim spouse has a genuine grievance if either partner has behaved in such as way as to go against the sunnah of Islam, in other words, their ‘normal’ behaviour has become cruel, vindictive, abusive, unfaithful, cheating, lying, neglectful, selfish, sexually abusive, tyrannical, perverted, or they have taken up habitual foul language, drinking, gambling, taking drugs, stealing etc.

Attempting to Bring About Reconciliation

• The practice advised in the Qur’an is for each spouse and to try to behave in the first place according to the good sunnat of Islam as regards kindness, compassion, generosity and so on, in order to prevent problems, and if they should arise, to make genuine efforts to solve the problems.
• Each spouse do their best to overcome shyness, shame, or any other inhibiting factor, and communicate clearly to the other what it is that has upset them. The duty of a good Muslim spouse is to listen to the complaint, and put matters right so far as it is possible to do so.
• Should this not be sufficient, each spouse should argue their case before two ‘helpers’ or ‘advisers’ for each side, who may then intervene on their behalf, and discuss carefully what it is that has caused the marriage to break down. These helpers should give their best advice.
• The spouses should also seek advice from their own families, and listen carefully to that advice.
• Every effort should be made to communicate and discuss their grievances, concerns and problems. If things have reached a drastic stage, it is usually far better to do this with witnesses for both sides, so that unpleasant ‘slanging matches’ and abusive time-wasting talk does not develop.
• The ‘hurt’ spouse should not shrink from honesty in describing the unwanted nonIslamic behaviour that has upset them. In many cases, the first step towards a cure from such things as alcohol and gambling abuse is for the abuser to recognise and admit what he or she is doing, and how it has affected the other spouse and probably the entire family. It is obviously quite normal for guilty parties to resists this strongly, even with threats, but the more it can be brought into the open the more likely it is to be resolved, and the more defence the hurt party should receive.
• If the offending spouse is told very clearly that ‘when you do this I feel…..’, or ‘when you do this the reaction, and what happens in the family, is……..’, then the responsibility for their future actions falls squarely on them, and they are certainly to blame if they continue to do whatever it is, or give adequate explanation of why they are doing it.
  
  These days the general policy of the divorce law is that after all possible avenues for reconciliation have been explored, and the spouses have been properly advised, dead marriages should be ended and not allowed to continue against the wishes of one of the parties. The law does not usually need to look too closely at the conduct of either party when a marriage is failing. Blame will only be relevant in exceptional cases. The courts are generally most concerned to safeguard the welfare of any children, and to ensure that a dead marriage is not perpetuated as a sham.

• Divorce – this legally ends the marriage and the husband and wife are both single again.
• Annulment – this legally ends the marriage and the husband and wife are both single again.
• Judicial Separation
• Separation by informal agreement
• Separation under a written deed
• Separation by magistrates’ court order

• Adultery
• Unreasonable behaviour
• Desertion or abandonment
• Two years’ separation
• Five years’ separation.

In the UK 99% of divorces are undefended. In the 1% where a spouse wishes to reject the divorce, a solicitor should be consulted immediately.

1. Adultery

This is voluntary sex between two people of different sexes, either or both of them being married. Sex when drunk or drugged or raped cannot count as adultery. In UK law eye-witness evidence is not required. If the petitioner can show inclination and opportunity, the court will assume intercourse took place. Circumstantial evidence will normally suffice – for example, they may have been seen kissing, there may be love letters, evidence of many telephone calls, or a wife becomes pregnant when it was impossible for her husband to have been the father. More often than not, the adulterous spouse will sign a statement of confession of where and when the adultery took place, and with whom. The co-respondent’s identity will not usually be kept a secret. The court will normally accept the fact of adultery as being enough to make living together intolerable.

Abuses of adultery law and ‘honour killings’

It is not enough evidence to suspect adultery if a woman has simply been outside the home without permission, been seen talking to someone who is non-mahrem, etc. The so-called ‘honour-killings’ that have taken place in various societies have nothing to do with Islam, and are in fact murder. Murder of an innocent female by a father or brother or uncle is one of the most horrendous crimes. One can understand strong cultural conditions prevailing to defend family honour, but in Islam people who accuse others of adultery without genuine grounds for doing so should actually face the penalty for being a false witness and for slander.

Confusing adultery with rape
Where the powers-that-be confuses adultery with rape, women may suffer terrible abuses without recourse to proper legal redress.
If a woman is subject to some form of sexual abuse, either rape, or made drunk or drugged in order to be subjected to abuse, then this cannot be considered as adultery, either in UK law or in Shari’ah law. Those who go on to subject these unfortunate female victims to accusations of adultery, or brought them to court, or even sentence these victims to imprisonment (!) are in gross abuse of Islam.

2. Unreasonable Behaviour

This phrase is deliberately vague and imprecise, so that it may receive the widest interpretation.

The only concern is to show that the behaviour is so grave that the petitioner cannot reasonably be expected to go on living with the husband or wife. It all depends on how serious is the misconduct and what is its effect on the petitioner. Small incidents, seemingly trivial, can also combine to make the behaviour unreasonable. This is now the most common ground for divorce, and 90% of petitioners are women.

Some examples of ‘unreasonable behaviour’:

• physical assault or ill treatment
• verbal assault – such as persistent nagging, insults, unkindness, threats of assault, boasting of sexual experience with other people – whether true or not
• persistently ignoring the other spouse
• insanity
• adultery and cohabitation with another as husband and wife
• sexual activity with another person which is not adultery but is improper – such as a lesbian or homosexual relationship, bestiality, or sexual intimacy that falls short of full intercourse
• unreasonable sexual activity, such as excessive demands on the petitioner, or a complete refusal to have sex, or to have sex without using a contraceptive, or sodomy and other unnatural practices forced on the petitioner
• refusal to have children
• obsessive tidiness
• dirty habits
• frequent drunkenness or drug taking
• financial irresponsibility, such as failure to provide sufficient housekeeping money
• failure to look after the home
• irresponsible gambling
• refusal to work when a reasonable job is available.

• If a wife has been assaulted and has received hospital treatment, she should obtain a certificate from the hospital confirming date, time and nature of the treatment.
• If her GP has been consulted in connection with marital difficulties, he or she should write a letter confirming her attendance and his opinion as to the cause.
• Medical evidence that the marriage problems are getting on top of the petitioner can be invaluable.
• Friends, neighbours and relatives may be able to give evidence as to such things as loss of weight, nervousness, tension, panic attacks, sleeplessness, depression, inability to concentrate at work, lack of interest in regular hobbies, weepiness.
• The petitioner should keep a diary or record of the husband’s behaviour, noting the day and the way in which he abused or insulted her.
• If the police have been involved, the police record or crime number is invaluable.

3. Desertion or Abandonment

This can be either spouse abandoning the other. At the commencing stage of abandonment, of course, most partners would not have a clear idea if the abandonment was going to be temporary or permanent. It is a good idea to make a note of the date, and the probable reasons for the abandonment.

If a husband whose wife relies on his support abandons his wife, she should protect herself in the short term by

• Checking if he is still paying the rent or mortgage, and if not, arrange to do it herself.
• Claim supplementary benefit if she has little or no money.
• Apply for maintenance for herself and her children.
• If she has a joint bank account, she should make sure he cannot draw out all the money – perhaps she should draw it out before he does!
• If the husband has been violent she should see a solicitor. It might be possible to have him excluded from the home.

4. Separation for Two Years

This is the ‘divorce by consent’ provision. It allows a couple who have been living apart for two years to end the marriage mutually. If, however, only one of them wants the divorce and the other will not consent, there can be no divorce unless they have been living apart for five years.

A couple may continue to live in the same house and still be counted as ‘living apart’ if they have ‘separate households’. They may share the same kitchen and bathroom, but they must not share the same bedroom or living room, nor should they cook for one another, spend their evenings together, or watch TV together. In other words, they should cease living as a couple and act as though they were two strangers sharing the same house. They will need to produce independent evidence confirming this state of affairs, and how they have ceased to cohabit. Before the judge declares the decree of divorce, he will consider all the circumstances of the marriage, such as the age, health, earning capacity, conduct and finances of both husband and wife, and he will not make the decree absolute unless he is satisfied that the petitioner has made reasonable provision for the other spouse or has promised to do so, or that the other spouse does not need maintenance.

5. Separation for Five Years

This allows a blameless spouse to be divorced against his or her will. There is virtually no way that the petitioner can be prevented from obtaining a divorce. The only possibility is for the spouse not wanting the divorce to plead exceptional hardship, but the courts generally interpret this very narrowly indeed. For example, a wife who had returned to her old country with her children opposed her divorce to a husband remaining in the UK because it would result in her being socially ostracised back home, but this plea was rejected and the divorce went through.

The judge can grant a decree nisi, but refuse to make it absolute until he is satisfied that adequate provision has been made for the other spouse.

Costs

The costs vary according to the complexity of the case. The more work involved, the more a solicitor will charge. If the divorce is defended, the costs rise dramatically, or if there are complicated financial disputes, or disagreements over the arrangements for the children. The petitioner cannot be sure the case will be undefended right up to the day of the court hearing, for spouses can change their minds at the last moment. If the case is defended, legal advice will be necessary. Legal aid may be available to help with the costs.

Solicitors cannot give you a definite price until they know how complex the case is likely to be. They should be able to give a quote on a ‘typical’ case. In undefended divorces, both petitioner and respondent may act for themselves if they wish. It is also possible in defended cases, but extremely unwise.

In addition, there will be court fees to pay. You have to pay to file the petition, and you may have to pay for a bailiff to serve the petition on the other spouse

How to Choose a Solicitor

Consult the yellow pages in your telephone directory. Solicitors do specialise, so it is wise to ask if he or she does a lot of matrimonial work. If he or she does not, consider choosing someone else who does. The solicitor will not be offended.

Embarrassment

Many people find it very embarrassing to be obliged to tell a complete stranger the full details of their matrimonial affairs, including, perhaps, their sexual relationship. Lawyers treat their information as strictly confidential, and will not tell anyone else about it. They will not be shocked or embarrassed – they will have

‘heard it all before’, and will treat the matter in as unemotional a manner as would a doctor. They will not become emotionally involved in the case. They are paid to procure objective advice, and they cannot do that if their judgement is clouded by prejudice in favour of a particular client.

They will also test the strength of their client’s case by asking the sort of questions that the other spouse’s solicitor may ask. Some people are surprised when cross-examined by their own solicitors – but they need to find out the weaknesses in the case so that they can take steps to strengthen them.

Do not blame the solicitor for the law. If solicitors say a case is hopeless, it doesn’t mean they are incompetent and can’t handle it, or that they dislike the client. If the law does not support the case, it is pointless to seek another solicitor.

We have made you a vicegerent in the earth, so rule among the people with justice and do not follow your own desires lest they mislead you from the Way of Allah. As for those who go astray from the Way of Allah, they shall surely have a severe punishment because of forgetting the Day of Reckoning. (Surah 38:26).

• Get a copy of your marriage certificate.
• Go to the local divorce court and
  • get three copies (four in an adultery case) of the standard divorce petition form (Form D8).
  • If there are children, get three copies of the standard Statement of Arrangements for Children form (Form D8A).
  • Get a copy of the notes for guidance on filling in the forms and the free booklet on DIY Divorce.
  • If you are claiming a share in the family home you may also need to register your claim against theland.
• Fill in all the copies of the divorce petition form and the Statement of Arrangements for Children form if applicable. Use the notes for guidance, and the free booklet.
• To start the proceedings, take or send to the court:
  • two copies of each form to the court. If the case is based on adultery, then give the court three copies of the petition.
  • The copy marriage certificate
  • The fee of £35 (people of limited means are exempt – ask at the court)
• The court will allocate a reference number to your case. You have now become the petitioner. Your other spouse, against whom you are seeking divorce, is known as the respondent.
• The court will send the respondent
  • a copy of the divorce petition form and Statement for the Arrangements for Children form, if there are any
  • a Notice of Proceedings form
  • a form for him to sign to acknowledge that he has been served with these documents. This is called the Acknowledgement of Service Form.
• The respondent will sign the form stating that he or she does not intend to defend the petition, and sends it to the court.
• The court will then send you
  • a copy of the Acknowledgement of Service form
  • a standard form for you to request Directions for Trial
  • a standard form of affidavit for you to complete. This will set out the basis of your petition and the evidence in support.
• Complete the affidavit of your evidence
• Sign the completed affidavit and the copy Acknowledgement of Service form in front of a court official or solicitor.
• Send those documents to the court together with the completed form asking for Directions for Trial.
• The affidavit and evidence then goes before a registrar. If he or she thinks the evidence is sufficient to entitle you to a divorce, a certificate will be issued, a copy of which is sent to both spouses. The registrar also fixes a date for either the pronouncement of the decree nisi if there are no children (and there is no need for either spouse to attend court on that day), or the date of the appointment before the judge if there are children.
  Both husband and wife should attend on that day, when the judge will consider the arrangements in a private hearing. If the judge is not satisfied, the proceedings will be adjourned until the problems are resolved. If there is not sufficient evidence the judge may order a welfare officer’s report.
• Once the decree nisi has been pronounced, a copy is sent to both spouses together with a copy of the judge’s order concerning the children if applicable.
• Finally, you get the standard form applying for the decree nisi to be made absolute, and send it to the court. It is not sent automatically – you have to apply for it.
• If there is no outstanding business, the registrar will make the decree absolute and send a certificate of decree absolute to both spouses, some six weeks after the decree nisi.
• That’s it. If there are no children involved, it can all be done through the post

Repayment of Mahr in cases of khul divorce

A khul divorce is one in which a wife sues for divorce even though the husband has not driven her to it by his unreasonable behaviour. If there is no good reason for a wife wishing to divorce her husband, but it is a case in which she simply wishes to finish the marriage with no particular legal grounds against the husband, the husband may agree to grant her the divorce if she returns all or part of the mahr. This has to be agreed between them.

If the wife does have genuine grounds for divorce – such as cruelty, mental cruelty, breaking of the marriage contract, adultery, desertion, incurable insanity, long-term imprisonment, abandonment of Islam – then the divorce is not khul but a normal talaq, in which the wife has as much right to instigate proceedings as the husband. In these cases, she most certainly does not have to hand over any of the mahr.

If the wife has genuine grounds for divorce but the husband refuses the divorce, she may then approach lawyers for khul. It is sensible to do this as well as having a UK lawyer. She is not required to pay back any of her mahr.

Indeed, the lawyers may demand some further compensation for her if the husband is guilty. (She may have to prove his guilt, and should gather as much evidence beforehand as she can – such as signed and witnessed statements of witnesses, photographs of injuries sustained, etc).

Annulment

The difference between an annulment and a divorce is that a divorce is granted to end a marriage that has broken down irretrievably, but an annulment is granted if the marriage was not valid in the first place, or is defective in some way.

The law distinguishes between two types of annulled marriage

• those that are void
• those that are voidable

• the couple are too closely related
• either was under sixteen at the time of marriage
• certain marriage formalities were not followed
• it is bigamous
• the couple are of the same sex
• invalid polygamous marriage – because, although the marriage was valid abroad, one of the parties was domiciled here at the time of the marriage.

• There was no consummation of the marriage because one of the spouses was incapable. (Consummation means any one act of sexual intercourse involving full penetration and a sustained erection; ejaculation is not necessary. Premarital sex does not count as consummation).
• Wilful refusal by the other spouse to consummate the marriage (This means a determined refusal, persisted in over a period of time. It does not cover nervous first-night fears! Only one act of intercourse is necessary for the marriage to have been consummated, but if a spouse then refuses any further sexual intercourse he or she is guilty of unreasonable behaviour justifying divorce.
• Lack of consent at the time of the marriage (This applies if the spouse was forced, coerced, tricked, duped, under the influence of drink or drugs, or suffering from mental disorder as defined by the Mental health Act).
• At the time of the marriage the other spouse was suffering from communicable venereal disease (proceedings for this must be started within three years of the marriage or the claim will not be allowed)
• At the time of the marriage the woman was pregnant by another man (proceedings for this must be started within three years of the marriage or the claim will not be allowed).

• she was frightened of physical hurt if she refused,
• or had been threatened,
• or would be disowned
• or thrown out of the family home,
• or her parents would never speak to her again,
• or her mother would commit suicide if she didn’t do it,
• or she was made to feel that by her refusal she would acting dishonourably because the engagement had been agreed since her infancy,
• or she would discover all her ‘silly fears’ were just ‘female nerves’ and she would soon get used to the idea and would be grateful in the end,
• or she would be letting some relative down,
• or she would perhaps be condemning some person to being sent ‘back home’ because they could not get a visa
• • or her parents had already accepted a money payment from the bridegroom’s family - these are all moves of coercion, and could render the marriage null and void. Any of these behaviours on the part of her parents is not only totally unIslamic, but it is cruel in the extreme – the physical and mental torment coming from the very people the girl had been urged to love and trust, and who should have been protecting her best interests. The sense of betrayal is complete, and families rarely get over the trauma and rift caused.

If a woman was forced into a marriage ceremony but never consummated the marriage, it could be voided most easily if the woman concerned could prove medically that she was still a virgin. If she was not a virgin – for example, it could be a second marriage - but the marriage with this particular man has never been consummated, proof would have to be sought, and it would be vital to confide in a doctor immediately to back up your case. If the husband admitted the lack of consummation, the marriage would be swiftly voided.

If it is a case of a young girl sent back to her parent’s country of origin and married to a person without her knowledge or consent, perhaps through her complete innocence, or through trickery and connivance on the part of relatives, or her lack of understanding of the language or the legal processes in that country, that marriage is null and void both in UK law and in Shari’ah law. This applies whether the relatives force the couple to live together or not, or even if children are born to the ‘union’.

Even if she has signed her consent on forms, it might be the case that she had not understood the forms, or that someone had misled her into thinking the forms were for something else. These marriages are not valid, either in
UK law or in Shari’ah law.