Ah the non-fault divorce, surely a myth of matrimonial
law! Can it be that we can allow parties
to separate without attributing any blame? Where’s the fun in that…?!
Joking aside, the issue is really a pertinent one especially
when we live in an age where dispute resolution in all its weird and wonderful
forms – mediation, arbitration and conciliation – are stressed more and more by
the courts as the way to deal with matrimonial disputes. This has been highlighted in the recent
change in law as of 22 April 2014 where all parties who wish to make an
application to court regarding children or finances have to first attend a Mediation Information Assessment Meeting (MIAM) to see whether or not their
case is suitable for mediation.
So if we can have this for children and finances, why can’t
we have something similar for the actual divorce, why is there no such ground
in English law that allows parties to separate without blaming each other?
Obviously, the nature of marital breakdown being such, it is
only natural that one party will blame another. However, as Sir James Munby, President of the Family Division, recently said, divorce by consent, in that
parties have been agreeing to separate by pre-agreeing grounds of unreasonable
behaviour, has been happening for the last 30 years in
Authority for this comes from the Holy Qur’an and the Hadith (authentic
recorded traditions) of the Prophet Muhammad.
The Qur’an is very clear in
advising men that they cannot take back any Mehr
given as that is the right of the wife unless they separate due to not
being able to fulfil the rights of relationship or friendly companionship with
The Hadith is
recorded in Sahih-al-Bukhari (widely
regarded by Muslims the world over as the second most authentic Islamic book
after the Qur’an). It records an episode during the lifetime of
Prophet Muhammad when he was approached by the wife of a companion of his,
Thabit bin Qais. She asked the Prophet’s
advice saying that she could not find any defects in Thabit’s character or
religion but simply could not endure to live with him. The Prophet asked if she was willing to
return a garden Thabit had given to her as Mehr
upon which she replied that she was.
This was done and Thabit bin Qais then divorced her.
What I must say at this stage is that Khula must not be mistaken for any other method of Islamic
separation which I will be writing about in future posts. Furthermore, readers should note the high
level of consent and transparency involved in Khula which is a feature that must be at the forefront of any law
reform in the