Religious marriage

We will be told if the marriage is valid or not. 

There may be a mahr- this is a specified amount due to the wife for her exclusive use. The husband has to pay it. It may be paid immediately at the time of the marriage contract or it may be deferred to the time of divorce. This lies in contract. In some cultures it is a nomial sum, but Arabs especially like to make huge ones. 

How has mahr been addressed by the English courts? 

Depends on whether there has been a civil marriage. If there is a civil marriage, is the mahr agreement before or after the civil marriage? Is it a prenup or postnup? 

If there is no civil marriage then parties are cohabitees and the mahr agreement may just be treated as a contract. 

There isnt much case law on mahr which may indicate it hasnt been much of a problem. 

Shahnaz v Rizwan- pre Marriage Act. They didnt look at it as a prenup or post nup, they just said the wife could have it. Only £1400. 

Uddin v Choudhury- there was no civil marriage. There was a mahr of £15'000 that was never paid. The wife claimed it. Expert evidence on the mahr was given. This was an enforceable agreement. Mahr was due to the wife. It was conceptualised into the English law of contract. 

Qureshi v Qureshi- divorce was pronounced by the husband and the court accepted that. He still had to pay the mahr of £78'000. 

Islamic divorce- 

A mans power to divorce is called talaq. This means the husband can declare unilateral divorce. The wife then enters into her waiting period- this is 3 months long. During this time the husband must maintain his wife and he may reconcile with her. Husband must pay outstanding mahr. After this period of waiting ends, the parties are divorced. 

These same parties can remarry with a fresh contract provided they both agree. 

Husband can do twice and they can reconcile again. When they divorce for the third time they are permanently divorced. He then cannot reconcile with the wife.

They can only reconcile after this if the wife marries someone else, then gets divorced, and then the original parties can marry again. 

When talaq is pronounced in England and Wales there is no effect on the civil marriage. This only impacts the religious marriage. 

Pronounced abroad- 

Family Law Act 1986 s46(1) provides criteria for the recognition of overseas divorce- the divorce is recognised in the country it was pronounced and the parties are domiciled and habitually resident in that country. 

H v H- the parties were married for 20 years mainly in England. Husband went back to Pakistan. Commenced divorce proceedings in both countries. Pakistan divorce went through first. English court recognised this divorce. He wasn't denying her financial claims. 

Bare talaq pronounced abroad is unlikely to be recognised by English law. Pronouncing whilst on holiday wont be valid as not domiciled there. 

Khul- by agreement. Husband is released from paying mahr and has to consent to divorce. 

Faskh- a judicial termination. A judicial authority terminates the marriage (such as shari'a council). Generally based on concept of harm to the wife. No need for her to repay the mahr. 

Additionally- delegated divorce. The husband gives one of his divorce pronouncement rights to the wife to use at any time. 

She may have to go a Shari'a council. This happens when husband refused to pronounce talaq or agree to khul. The council will try to get husband to agree to khul first and if not possible will give a faskh ruling. Although sometimes used to discuss children and finances, they have no jurisdiction to make orders. 

The ruling has no impact on civil marriage. 

For the exam-

Marriage- we will be told if the marriage complies with the Marriage Acts. If it complies they need a civil divorce and parties can apply for ancillary relief. If it is void they can apply for ancillary

relief also. If it doesnt apply, the parties are cohabitees. 

The issue of mahr- is it prenup/post nup? Factor to be taken into account? Or if no civil marriage can it be enforced through contract? 

Divorce-

Validity of overseas divorce? Religious divorce? This has no impact on civil marriage.

The wife may have to go to Shari'a council. 

May need expert advice.

Will only be a very small part of problem question.