11 JAN 2017

Are we getting closer to no fault divorce?

Are we getting closer to no fault divorce?

Hats off to Resolution and all those who attended Parliament on 30 November 2016 to call on the government for no fault divorce. On the day, 150 family lawyers and other professionals came to Parliament to meet with MPs and Peers on the subject. It really is high time that this issue was given serious consideration by the government, after all we’re almost in 2017 but our legal concept of fault-based divorce seems more in line with 1817!

As if separating couples did not have enough on their plate to deal with, not least of all the emotional fallout of separation, I find that clients are continually surprised when they learn that the only way of lodging a divorce petition at court in a non-acrimonious way is if they have been separated for 2 years or more.

This is especially the case with Muslim clients who are aware that Islamic law allows the concept of Khula which is the Islamic version of consensual, no fault divorce. 

Khula has been an option for Muslim couples since the advent of Islam over 1400 years ago.  It has been covered in greater detail in my article entitled 'Khula – The Islamic Non-Fault Divorce' but to summarise, it occurs when the husband agrees to grant the wife the Islamic divorce (known as the Talaq) upon her request even though he may not initially be agreeable to the same. This is sometimes done with the agreement that the wife repays her Mehr (dowry) but it is not compulsory.

The agreement can be made between the couple themselves or can be brokered by a third party.  In my experience this can be professionals such as lawyers or Islamic scholars sitting on Shariah Councils or they can also be members of family or friends.  It is for the couple to agree whether or not someone brokers the agreement or not but the main thing to remember is that it is done consensually.  And as stated above, if the couple can come to the agreement themselves, there is really no need for a third party to get involved.

And of course, the main benefit is that the parties separate without any accusations being levelled at each other which may add to the acrimony and distress of the parties. As all professionals involved in the field of family law will tell you, the impact of this point cannot ever be overstated. Furthermore, in this day and age of collaborative law and parties wanting to exercise non-court solutions, having amicability in the separation process will greatly improve the chances of the couple reaching a settlement involving their children and finances.

In a recent survey of family justice professionals carried out by Resolution, over 90% said that divorce law needs to be modernised to allow for no fault divorce. As well as no fault divorce being a better option for separating couples, family lawyers also predicted that a change in legislation would see a rise in the use of mediation and lead to a reduction in the amount of court time spent dealing with children or financial issues relating to divorce. Surely this can only be a good thing?

It is also important to stress that Khula does not get mistaken for any other type of Islamic Talaq, of which there are six main types. This is due to the unfortunate tendency of Muslims to lump all types Talaq under the banner of Khula. As has been explored in previous articles, each type of Talaq has its own peculiarities and different consequences. Furthermore, the separation by way of Khula is the only method of Islamic separation which is achieved by consent with the other types of Talaq either putting the power of divorce in the hands of the man or the woman on a unilateral basis.

So well done Resolution and keep up all the great work. The government really does need to start giving the issue of no fault divorce serious consideration and become the means of alleviating the vast multitude of stresses divorcing and separating couples already have to contend with.

See also 'Resolution’s new Code of Practice' by Nigel Shepherd and Margaret Heathcote in January Family Law.

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