An independent report has recommended that Islamic marriages should be legally recognised and registered civilly either before or at the same time as the religious ceremony, as is the protocol for some other religious marriages.
This report found that a majority of Islamic marriages are not civilly registered and so the couple are not legally married. They are, therefore, often left without adequate legal protection in the event of divorce. Importantly, the report concluded that a majority of couples were not aware that an Islamic marriage was not granted automatic legal status.
In the absence of civil registration, there are three methods of obtaining a religious divorce in Islam. A Talaq divorce is a unilateral divorce open to a husband only. A Khula divorce may be granted on application by the wife provided the husband consents. A Faskh divorce may be granted by a Sharia Council against a husband unwilling to agree to a divorce.
The report found that over 90% of people engaging the services of a Sharia Councils were women seeking a divorce in circumstances where the husband refused to consent.
The combined effect of a process where the wife has little chance to refuse and the fact that a divorce may well prevent a wife from later being able to ask for money from her former spouse, means that the wife can be left without a bargaining position to negotiate the marital finances and any form of legal recourse. Effectively in the absence of the law, the wife will have to accept whatever she is offered or risk receiving nothing once the Islamic divorce is finalised.
Conversely, should the marriage be civilly registered any division of the assets in the event of divorce would be governed by the Matrimonial Causes Act. The starting point in this jurisdiction is a 50:50 split of the assets. The court will then consider whether there is good reason to depart from an equal division in light of a number of factors including the income, earning capacity and financial needs of the parties. Moreover, the law recognises non-financial contributions of the primary carer or home maker as equal to the financial contributions of the primary bread winner, thereby protecting the financially weaker party in the event of divorce.
This report sheds valuable light on the inequality, lack of awareness and lack of protection afforded to men and women in Islamic marriages where the marriage has not been civilly registered.
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