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.
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.
