The ‘Nikaah’ Under British Law

The ‘Nikaah’ Under British Law

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By Sarah Khan-Bashir MBE
www.shiresolicitors.co.uk, Twitter: shiresolicitors, Instagram: shiresols7

The Nikaah is a contract between a husband and wife that they will live their lives in accordance with the teachings of the Quran and the Sunnah. As part of the marriage contract the husband agrees to pay the wife a Mehr, commonly referred to as Dowry.

British Law as it currently stands recognises any marriage that was conducted abroad so long as it is recognised as a valid marriage in that country. For example a Nikaah conducted in Pakistan will be recognised under British Law as a valid marriage as it is recognised in Pakistan.

If the marriage subsequently breaks down and one of the parties resides in the United Kingdom then a divorce through the Courts will be necessary in order to dissolve that marriage. However if the Nikaah took place in the United Kingdom but not registered then the marriage will not be recognised under British Law as legal or valid. In these circumstances if the marriage breaks down then there is no recourse to the courts. At this stage only dissolution under Shariah law would end the marriage.

every-girl-should-read-this-before-her-nikkah-featuredTherein lies the issue that is affecting our community and especially the women of our communities. If you have only had your Nikaah performed in the UK and not registered then the marriage is not given the legal status. Nikaah performed in the UK has no legal bearing. This will mean that should the parties divorce or separate there is no legal recourse under the Matrimonial Causes Act 1973. This also affects the distribution of assets of the marriage. If one of the parties dies the assets do not automatically transfer to the other spouse as under British law there is no legal marriage. This will then go into the estate of the deceased and could potentially be divided amongst other family members such as brothers, sisters and the parents.

If the marriage ends and the Nikaah was performed abroad then a Decree Absolute needs to be obtained to end the marriage. This is done through the divorce process via the Courts. This is the legal divorce and means that under British Law you are no longer married. However this does not been that the marriage has ended according to Shariah Law. Most women from our community end up in a situation where the Courts have granted them a Decree Absolute but the husband refuses to give them a Talaaq. This is when the woman has to approach a Shariah Council and ask that they obtain one for her from the husband. Many of our Clients have stated that the Shariah Councils can be intimidating, unpleasant, and intrusive. Many women are not even aware that they can obtain a Khulla through other means, such as a local Mufti, which leaves them largely reliant upon the Councils, which can unnecessarily prolong matters.

As it currently strands the majority of the Shariah councils are not fit for purpose and need to raise their bar in terms of processes and procedures so they are tangibly complimentary and supportive of the laws of the land when dealing with divorce. The Shariah Councils are there to offer women protection, guidance and a helping hand. This should be reflected in their practices and conduct. If this does not happen the unfortunately most women will be left hanging between Divorce and marriage. Effectively they are unable to get on with their lives.

This is my mission, to enable and empower women to understand the rights they have both under the UK legal system and those that Shariah Law has provided for them.

Shire Solicitors
7 Eldon Place
Bradford
BD1 3AZ0
800 772 0413

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