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Khula – the Islamic non-fault divorce

Date:31 JUL 2014
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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 England. So maybe it is now high-time to introduce some ‘intellectual honesty’ in our methods of separation.

In his speech, Sir James Munby asked the stirring question, ’Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?’

Readers may be aware that Islamic family law makes provision for such a method of separation known as Khula for over 1400 years now. This method of separation (I say this because there are a total of six methods of separation in Islam) is exactly what Sir James was talking about – a non-fault divorce granting separation between a married couple without attributing blame, with irretrievable breakdown, or Shiqaq (as it is known in Arabic) being the sole ground.

Khula or Al-Khul is simply a situation where the husband and wife come to an agreement between themselves that the husband will grant Talaq (Islamic divorce) upon the wife repaying the Mehr (Islamic dowry payable to the wife upon marriage) to the husband. There is no allegation of fault. In some instances, if they both agree, it can also be agreed that the wife does not even need to repay her Mehr to the husband and the husband will grant the Talaq anyway.
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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 one another.

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 UK advocating non-fault divorce. It must only be between the parties with no outside intervention, although they can seek the assistance of a third party to help broker the Khula.

I do not agree with some commentators and articles which have been written that this will increase the divorce rate in the UK. People still view marriage as a major step and most people understand the significance of marriage and by extension, the implications of divorce. Furthermore, Muslims have been benefiting from the provisions of Khula for over 1400 years and there is no disproportionately high rate of divorce among Muslims – in fact it could be argued that it is the exact opposite.

However, if the law in the UK did change to accommodate non-fault divorce and made proper provision for all its complexities, we could have one of the most progressive divorce procedures in the world. It could potentially remove a lot of the heartache from marital breakdown and also engender within our divorce law, the amicable resolution of disputes over finances, property and children which perfectly ties in with the dispute resolution model wanting to be adopted by the Family Justice system in the UK.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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