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Family Law

The leading authority on all aspects of family law

07 APR 2016

The different methods of Islamic separation - Part 3: Khula and Faskh-e-Nikah

The different methods of Islamic separation - Part 3: Khula and Faskh-e-Nikah
In this article, we will discuss the following methods of Islamic separation:
  • separation by way of consent between the parties - Khula; and
  • dissolution of marriage - faskh-e-Nikah.
Unfortunately, this area of Islamic Fiqh (jurisprudence) still confuses many lay Muslims as well as qualified Islamic scholars.

In my previous article, I mentioned that most people tend to think that any other form of Islamic separation that is not Talaq automatically falls into the category of Khula. That could not be further from the truth. Hopefully, by the time you get to this article you will have read Part 1 and Part 2, and so will be aware of the different methods of Talaq and the fact that it is a completely different method of separation to Khula and Faskh.

Khula


Khula has already been discussed in detail, you can read about here.

Faskh-e-Nikah


As previously mentioned, if the husband refuses to give his wife Islamic Talaq, the wife would effectively be stuck in her marriage. However,Islamic jurisprudence provides for the wife in enabling marriage to be dissolved by a Qadhi (a judge who sits in a Shariah court) upon her application to the same.

In short, therefore, the Faskh-e-Nikah is the dissolution of an Islamic marriage pronounced by a third party upon application by the wife. Furthermore, the effect of a pronouncement of Faskh-e-Nikah is the same as a Talaq-e-Ba'in - the marriage comes to an irrevocable end.

This is the type of dissolution effected by a Shariah Councils in a country where Shariah law is the law of the land, and also when a Muslim woman applies to a Shariah Councils here in England. What must be remembered here is that the dissolution of an Islamic Nikah by a Shariah Councils has absolutely no effect on the civil marriage (if there is one) and, furthermore, has no jurisdiction in this country. It simply dissolves the Islamic marriage and nothing else.

The reason why a woman may seek dissolution of marriage by way of Faskh-e-Nikah is when the husband refuses to give Talaq and is thereby not fulfilling the rights of the wife. This refusal to give Talaq, when there are clear grounds for doing so, is in itself prohibited for the husband from an Islamic standpoint. However, due to lack of education and the influence of a negative and patriarchal Asian sub-continental culture, a lot of Muslim men in this country refuse to give Talaq and attempt to use it to exercise an element of control over the wife.

The Qur'an is very clear in its guidance of this point in exhorting Muslim men to retain / treat women 'in kindness or let them go in kindness'. However, as with many things in life, whilst the theory is sound, its practical application is less so - Talaq is either unreasonably refused or used as a threat by some Muslim men.

In practice, I often like the procedure used to obtain Faskh in this country as the undefended civil divorce procedure whereby the petitioner has to establish that the marriage has irretrievably broken down by proving one of the five facts found at s 1(2) of the Matrimonial Causes Act 1973. For Faskh, the thinking is similar in that the applicant has to prove that there has been Shiqaq (irretrievable breakdown of the marriage). The common way of doing that is, by way of statement, usually alleging a mixture of the five facts.

This generally means that the ground relied upon by the wife to establish Shiqaq is similar to the ground of unreasonable behaviour as per s 1(2)(b) of the 1973 Act. The Qadhi can dissolve the marriage on the following grounds:
  • dowry to the wife being excessively low;
  • husband's failure to fulfil marital obligation;
  • husband's whereabouts unknown;
  • husband's failure to provide maintenance despite capacity to do so;
  • cruelty to the wife;
  • serious discord between the parties; and
  • husband having married the wife by deception regarding his condition (medical or other).
The above list is not complete, but I have provided it to give readers an idea of what sort of things scholars in England look at when Muslim women ask Shariah councils to dissolve marriage. Family practitioners reading this will recognise this list as the usual mixture of allegations of desertion, domestic abuse (including emotional / financial) and domestic violence, raised when petitions are drafted on the ground of unreasonable behaviour.

What may not be immediately clear, but is a divisive point commonly raised by husbands when they find that a Shariah council is going to dissolve the marriage, is the point that a Qadhi can dissolve the marriage simply on the point that the wife does not wish to stay in the marriage as there is serious discord between the parties. The jurisprudence here is that the Qadhi must first appoint arbitrators to try and effect reconciliation but, if that is not successful, the Qadhi can, on the wife's demand, effect separation on the ground of mutual discord.

In my humble opinion, this goes to the heart of the issue of the control which Muslim men think they have over women and goes some way to balancing the unilateral right of Talaq that only the men have.

Conclusion


This concludes Part 3 of the 'Different Methods of Islamic Separation' series. I most sincerely hope that the information set out above is useful. Please remember my comments about only the Hanafi school of thought being taken into consideration, as I can already imagine people coming forward with different views on each of the different types of Talaq.

One final note: I would like all readers to consider the detail that Islamic jurisprudence places on how the marriage is brought to an end, the continuing emphasis on reconciliation, and how different types of separation affect the nature of of reconciliation. Islam always has and will continue to place great importance on the structure and stability of the family unit as a whole.

Siddique Patel is head of the family department at Kamrans Solicitors. You can follow him on Twitter @tweetmsiddique.

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