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Understanding Sharia Family Law: A Transatlantic Perspective on Sharia Marriage and Divorce in England and the USA

Sarah Al-Jourani and Naveed Husain

Summary

  • Islamic marriages may be valid in England/the USA and therefore this can have a significant impact on a party to the marriage’s right to financial settlement on divorce.
  • Many Muslims will prioritize a Sharia divorce and Sharia based financial settlement and therefore they will seek legal advice which can intertwine this with the relevant laws of their habitual residence.
  • Islamic divorces that take place overseas may bring the legal marriage to an end and therefore it is important to check the validity and status of the marriage before proceeding within the jurisdiction of the habitual residence of a client.
Understanding Sharia Family Law: A Transatlantic Perspective on Sharia Marriage and Divorce in England and the USA
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Introduction

According to Mapstack, in 2024 there were 2 billion Muslims in the world. The 2021 United Kingdom census reported that there were 3.8 million Muslims in England that year. The 2020 United States Religion Census estimated 4.4 Muslims in the USA. With Islam being the second largest religion in the world, it is no surprise that many Muslims seek specialist legal advice to ensure that their religious beliefs can be met and followed whilst dealing with matters governed by the laws of their residing country such as marriage, divorce, estate planning and wills.   

It is clear from the statistics that in both England and the USA, Muslim communities represent a significant portion of the population. Subsequently, legal professionals whether they are in private practice, working with government agencies, or handling family law cases are likely to encounter legal issues involving Muslim individuals who adhere to Sharia law, particularly in the context of marriage and divorce. Understanding Sharia family law is important for several reasons, including:-

  1. Diverse client needs: being able to intertwine both the legal system of the jurisdiction with the client’s religious and cultural needs to ensure validity and recognition where necessary;
  2. Complexities in divorce proceedings: understanding the requirements in both Sharia and civil law and the application of Sharia principles when considering financial remedies if instructed to do so;
  3. Protecting rights: advocating for parties whereby the application of Sharia law in another jurisdiction has perhaps left the party vulnerable and understanding the implication of this within the jurisdiction the client currently resides in;
  4. Cultural competence: in these circumstances, it is not only the religious understanding that is important, but also the cultural understanding of the social context in which a client’s marriage or divorce will be considered.

Perhaps due to a shift in societal taboos, however Sharia law is becoming increasingly relevant in legal cases involving Muslims living in non-Muslim-majority countries such as England and the USA. Legal pluralism in these situations, where multiple legal systems are coexisting, can present many challenges especially with matters pertaining to the recognition of a marriage or divorce and the application of Sharia law to a matter being dealt with in a jurisdiction which does not recognise it. This can lead to tension between religious and civil court rulings and therefore careful legal analysis is required to determine how Sharia law can be integrated within other legal frameworks balancing respect for religious freedoms and individual rights whilst acting as an advocate and representative of the relevant civil legal system.

To add a further layer of complexity, these cases can often include cross jurisdictional elements. The global nature of family law means that many cases involving a Sharia element span across two of more national borders. It is critical for legal professionals dealing with these cases to understand the interaction of not only Sharia law with national law, but any international laws that are applicable to allow for an effective advocacy for a fair and just outcome.

What is Sharia Law?

Sharia law, sometimes referred to as Islamic law, is a comprehensive legal system that governs the moral, social, and legal aspects of life for Muslims. Sharia law covers a wide range of areas, including family law, criminal law, property rights, contracts, and personal conduct. It is not a single, unified code of law but rather a collection of principles that vary according to different interpretations and schools of thought within Islam. The interpretation of Sharia law can vary depending on the school of thought—Sunni or Shia—and the particular legal tradition followed in different Muslim-majority countries.

It is derived from two primary sources:

The Quran: The holy book of Islam, considered the literal word of God (Allah) as revealed to the Prophet Muhammad (PBUH).

The Hadith: A collection of sayings, actions, and approvals of the Prophet Muhammad (PBUH) which serve as guidelines for interpreting the Quran and applying its principles.

Sharia law also derives from secondary sources:

Ijma: A consensus among Islamic scholas on legal matters not directly addressed in the Quran or Hadith.

Qiyas: An analogical reasoning which is based on the principles derived from the primary sources used to solve new legal problems which are not explicitly addressed.

Sharia law governs many areas of a Muslim’s life, including family law, with rules on how to deal with marriage, divorce, inheritance and child custody. Sharia law also prescribes punishments for criminal law offences such as theft, adultery ad the consumption of alcohol. Within Sharia law there are also guidelines for daily life such as how to eat, dress, pray and fast. There is an emphasis across Sharia interpretations on moral conduct, piety and adherence to Islamic values.

Interpretations of Sharia law are no uniform and different regions and cultures have an impact on various interpretations. The main branches of Sunni Islam (the majority sect of Islam in the Muslim world) follow four classical schools of jurisdiction:-

Hanafi: Predominantly followed in South Asia, Turkey, and parts of the Balkans.

Shafi'i: Predominantly followed in Southeast Asia and parts of East Africa.

Maliki: Predominantly followed in parts of North and West Africa.

Hanbali: Predominantly followed in parts of the Arabian Peninsula.

Shia Islam, the second largest sect of Islam, follows its own system of jurisprudence.

Islamic scholars, often referred to as ulama, are learned expects in Islamic jurisprudence, theology and law. They are responsible for interpreting the sources of Sharia law and providing legal rulings, known as fatwas, based on their knowing. Many lawyers practising in areas whereby there is a crossover with Sharia law will work with the ulama to ensure that the Sharia matters are dealt with correctly and appropriately. An understanding of the role of scholars and the variations in local interpretations is key for legal professionals to navigate cases involving Sharia law effectively.  

Sharia Marriage: Core Principles

Marriage under Sharia law is both a contract and a sacred bond. The principles which govern Sharia marriages are derived from Sharia law and it’s interpretation. Not only is the marriage a religious or social bond, but the contract itself (known as a Nikah) is a legal document which governs the rights and responsibilities for both parties to the marriage.

The marriage contract

The Nikah binds the husband and wife together in a marital relationship under Sharia law. The contract carries legal weight in Sharia law and can be enforced in Islamic courts. For the Nikah to be valid under Sharia, the following requirements must be met:

Consent of both parties: A fundamental requirement for the validity of the Nikah is that both parties have consented willingly to enter into the marriage. Both parties must have the autonomy to make the decision to enter into the marriage.

Witnesses: There must be at least two witnesses present to ensure that the marriage is legitimate and can be publicly acknowledged.

Mahr: Often translated as ‘dowry’, the mahr is an essential feature of the Nikah. It is a gift given by the husband to the wife. Typically the wife will agree to the mahr before the marriage as it is often used to ensure her financial security and symbolise the husband’s commitment to the marriage. The mahr can be a symbolic gesture or something of substantial financial value depending on the cultural and personal preference of the couple. It is often provided in the form of money, gold or property.

Public declaration: A Nikah ceremony can be held in any location, however many scholars agree that it must be publicly declared to be valid to ensure transparency and legitimacy.

In addition to those set out specifically in the Nikah, which can be tailored to the couple individually, the Wife and Husband have responsibilities expected of them which derive from Sharia law.

Rights of the Wife:

  • Financial support (nafaqah);
  • Right to marital relations, including intimacy and marital companionship;
  • Right to maintenance during the marriage.

Rights of the Husband:

  • Right to lead the household and be primarily responsible for the financial upkeep of the family;
  • Right to mutual co-operation and for the parties to work together to build a successful and harmonious family.
  • Permission (not an absolute right) to marry up to four women, provided that certain conditions are met and that they are treated equally and justly. In some interpretations of Sharia, the first wife’s consent is needed to take additional wives.

Love, affection, and mutual respect are core principles of the marriage. The Quran states that spouses are garments for one another, symbolising mutual protection, comfort, and care. The contract is legal and sacred rooted in principles of mutual consent, rights and responsibilities and it is important for legal professionals to understand this, regardless of the legal recognition of the contract.

Sharia Divorce: Key Concepts

There are various types of divorce under Sharia law. Each has it’s own specific procedure and interpretation:

  • Talaq (Divorce by Husband)
    • The unilateral right of the husband to divorce his wife. This is the most common form of traditional Sharia divorce.
    • For the divorce to be valid, the husband must clearly pronounce talaq. This can be verbally or in writing and does not need to be in the presence of any witnesses.
    • Following the pronouncement of talaq, there is a three month waiting period known as the iddah (this is extended if the wife is pregnant.) The iddah ensures there is no ambiguity about the paternity of any potential children and allows the couple time to reconsider the divorce.
    • If the talaq is revoked during the iddah period, the husband can take the wife back without need for a new marriage contract. Note that this can only be done twice as a maximum of three talaq’s can be given. A third talaq makes the divorce final and the couple cannot remarry unless the wife remarries another man and that marriage is also dissolved.
    • For clarity, some husbands choose to give triple talaq (the procedure in which all three talaq’s are given during the iddah) to irrevocably end the marriage.
    • Talaq al tafwid is the procedure in which the power of talaq is delegated to the wife to initiate the above process. Uncommon but can be set out in the Nikah.
  • Khula (Divorce by Wife)
    • The wife's right to initiate divorce by offering something to the husband in return, often financial compensation by form of the return of the mahr.
    • There must be mutual agreement and the husband must still agree to the wife’s request for the divorce. In some countries, the wife is required to go to an Islamic court or consult a scholar to initiate the process.
  • Faskh (Annulment)
    • The Faskh is the annulment or dissolving of the marriage which can be granted by an Islamic court or Islamic authority. This type of divorce occurs when the marriage may be annulled if one party was forced into it or either of the parties are not fulfilling their obligations.

Sharia Marriage and Divorce within English and USA Legal Systems

Sharia marriage and divorce in England

In England, marriage is governed by civil law, with certain religious ceremonies being recognised provided that they comply with the legal requirements of the Marriage Act 1949. Generally, for a marriage to be legally recognised it must be conducted by a qualified officiant, take place in a registered building and be registered with the appropriate civil authorities.

Sharia marriages are not legally binding in England unless they are formalised through the civil legal system. The English legal system will not recognise a marriage that takes place in the jurisdiction unless it meets the statutory requirements necessary including registration.

The majority of Sharia marriages in England which are valid and recognised have not been conducted with a ceremony pursuant to the requirements set out in the Marriage Act, but have been conducted overseas. The English legal system applies the principle of Lex loci celebrationis, meaning “the law of the place of the ceremony”. Essentially, an overseas marriage will be recognised and valid under English law providing that it was property and lawfully conducted by the standards and requirements in the jurisdiction of origin.

Many Muslim couples who therefore enter into a marriage, pursuant to Sharia law, in a country which recognises Sharia within their jurisdiction may have a valid marriage in both jurisdictions. No further action needs to be taken by the couple in England, in fact, there is no mechanism to ‘register’ the marriage if it is already a legal and valid marriage.

With regards to a divorce, similarly to the recognition of Sharia law for marriages, the English legal system does not recognise a Sharia divorce conducted in England. Therefore a couple wishing to divorce and to end both their legal and Islamic marriage will need to enter into two processes. One, through the necessary requirements to end the marriage by legal means under the English legal system and one to end the Islamic marriage through the methods outlined earlier in this document. The role of Islamic bodies such as the Sharia Council is then of paramount importance to ensure that the Islamic divorce is conducted in a manner which complies with Sharia law.

It may be that a party to the marriage chooses to proceed overseas with the divorce, in which case Part II of the Family Law Act 1986 governs the process. If the party is a national of the country or domiciled or resident in the country at the time of the divorce, and the divorce is obtained by ‘proceedings’ the divorce may be recognised in England. Therefore, if the divorce is undertaken under Sharia law in the country and conducted in a manner which is recognised, this may end both the Islamic and civil marriage in England.

Sharia marriage and divorce in the USA

In the United States, marriage is governed by state law. Most states will recognize a religious or Sharia marriage performed in another state or country if it complies with that jurisdiction’s legal requirements and/or involves state oversight. However, religious ceremonies or "Sharia marriages" conducted in the United States without state licensure are unlikely to be legally recognized. Despite this, some states have implemented putative spouse laws, which may acknowledge a quasi-marriage if the parties underwent a ceremony, presented themselves as married, and genuinely believed they were legally married.

In Islam, marriage is regarded as a sacred contract between a husband and wife, emphasizing their individuality rather than a unification of two individuals. This perspective contrasts with U.S. views on marital property, “standards of living during the marriage” and alimony. Under a basic Sharia marriage, unless otherwise agreed upon, there is no concept of accumulating marital property or long-term spousal support. Upon divorce, each party retains their own property, and spousal support is typically limited to a short period, such as three to four months. By contrast, in a U.S. divorce, spousal support can last for many months or years, and marital property (property/assets acquired after marriage as opposed to only looking at the titleholder) is identified and divided equitably. This fundamental difference often surprises Muslims undergoing divorce in the United States. Additionally, a state court will not recognize a "Sharia divorce" unless the couple completes the state’s legal divorce process and obtains a Judgment of Dissolution.

To address these differences, many Muslims have become aware of the divergence between Sharia-based and state-based marriage and divorce outcomes. As a result, they are increasingly using prenuptial agreements to clearly define property ownership and spousal support obligations. These agreements serve as a strong and effective tool to incorporate religious principles into the state’s legal framework for divorce.

Conflict of Jurisdictions

It is clear that there can be tension between religious-based laws (Sharia) and secular family laws in both England and the USA. It’s therefore important for lawyers dealing with these types of matters to bridge the gap for their clients by understanding the cultural and religious dimensions when advising and acting in these complex areas. The advice given to clients not only needs to be at the point of a divorce, but it is important to consider the advice at the beginning of a relationship.

Clients benefit greatly from advice on the status of their Nikah before they enter into it and it’s recognition under the legal system of the jurisdiction. Some clients may choose to follow with a civil marriage and some may not. Some clients may benefit from a prenuptial agreement or separation agreement, in order to set out their intentions a ‘Sharia based’ financial settlement in the event of a divorce, following a civil marriage.

It is equally important for lawyers to be aware of the cultural conflicts and the strong recommendation in Islam for couples to seek mediation before divorce. Lawyers should be alive to this and refer clients appropriately to relevant mediators when asked, and be sensitive to the involvement of wider family members, or members of the religious community, if requested by the client.

In conclusion, navigating both Sharia law and civil law regarding marriage and divorce requires a nuanced understanding of the interplay between religious and legal systems. Lawyers in the USA and England serve a crucial role in helping clients manage these complexities, ensuring that both their religious rights and civil obligations are respected. From drafting prenuptial agreements to advising on divorce proceedings, child custody, and the enforcement of agreements, legal professionals offer valuable support. By combining legal expertise with cultural sensitivity, lawyers ensure that clients can achieve fair and equitable outcomes in line with both Sharia and civil law frameworks. Their guidance is indispensable in safeguarding the rights of individuals while maintaining respect for their religious and legal commitments.

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