In my experience, the biggest confusion within Muslims occurs in the mix up between
Khula and
Faskh-e-Nikah. Khula is when parties agree to separate by way of consent, usually upon terms such as the wife agreeing to repay her
Mehr (dowry) to the husband upon him agreeing to grant
Talaq. For further details, please see my previous article,
‘Khula – The Islamic Non-Fault Divorce’.
Faskh-e-Nikah is the dissolution of a marriage by an Islamic Court (in a Muslim country) or a Shariah Council (in the UK) when the wife wants to proceed with divorce but the husband unreasonably refuses to grant the
Talaq. This refusal by the husband is contrary to the spirit of marriage and divorce as set out the Qur’an.
Unfortunately, the mix up occurs when people use the term
Khula for everything that is not the
Talaq given by the husband when that is clearly not the case. I have even heard Islamic scholars use the terms incorrectly and interchangeably. Not only does this mean incorrect usage of the terms, it also means that people then have the incorrect understanding of the consequences, as in the case of
Khula, the
Mehr is repaid
by the wife to the husband (if agreed) and in the case of
Faskh-e-Nikah, any outstanding
Mehr must be paid
to the wife.
As you will no doubt opine, there are quite a few topics here which need elucidation. Admittedly, I have glossed over each of the methods of separation by way of summary, however, in the next few articles, I will talk about each method of separation in detail which I hope will go some way in demystifying the common mistakes and misconceptions encountered when dealing with the different methods of Islamic separation.
Not only will I talk about
Faskh-e-Nikah and
Khula and the various procedures of each together with a brief outline of procedures used by Shariah Councils in the UK, I will also talk about the different types of
Talaq, the respective procedures in pronouncing them and also the best way of pronouncing
Talaq as laid down in the Qur’an, which is known as
Talaq-e-Ahsan.
It would also I think, be interesting for readers to mention the trends which I have encountered from the practices of clients in how they deal with their Islamic divorces in this country. This ranges from people who simply have the
Nikah (Islamic marriage ceremony) to people who have had both Islamic and civil marriage ceremonies performed. What this will show readers is the different attitudes of Muslims in marriage and divorce and the gaping loophole currently left by the Marriage Act 1949 in not making marriages of all faiths registered.
I hope this will benefit readers and go some way in answering the questions which a lot of colleagues and other professionals in this field have about Islamic divorce and their different types. If you have any questions which these articles do not answer, please feel free to leave them here on the Jordans Family Law website and I will do my best to cover them in the articles.
