Sania & Shoaib: Showbiz and Shariah (divorce)
If you follow Pakistani celebrity culture, you would have seen the vast coverage Sania Mirza (former Indian Tennis player) and Shoaib Malik’s (Pakistani cricketer) shock divorce has received over the weekend, with Malik already having re-married.
Shoaib Malik announced the news of his Nikah (Islamic marriage) with Pakistani prominent actress, Sana Javed, who was previously married to Umair Jaswal, a famous Pakistani singer. Sounds like something from a movie scene but, in the world of celebrity, change can happen fast, and there can often be implications for the general, wider community.
As is often the case, there has been a lot of speculation surrounding the divorce and the second marriage. It would be helpful to, therefore, consider the different types of Islamic divorce available for Muslim clients.
Types of Islamic divorce:-
- Talaq – ending of the marital relationship by the instigation of the husband (by his choice and his consent), and this involves specific, well-known phrases
- Khula – where the wife initiates divorce proceedings, but the husband and wife both agree on the terms of the divorce, usually regarding the repayment of Mahr (dowry given to the wife by the husband upon marriage)
- Faskh-e-Nikah – this is the dissolution of the Islamic marriage, pronounced by a Shariah Court, upon the wife’s application. Faskh is not uttered by the husband nor is it conditional upon his consent or choice. Faskh can only occur when there is a reason that makes it necessary or permissible e.g. financial difficulty on the part of the husband, presence of a defect preventing intimacy etc. If the ruling is in the wife’s favour, then she does not have to return the Mahr.
- Tafweed-e-Talaq – when the right of a woman to divorce is included in the marriage contract (i.e., delegated to her or a third party, like her parents). This can be with or without stipulating conditions. There has been reference to a Tafweed divorce in the Mirza-Malik divorce. It is important to, therefore, consider receiving advice from a Specialist Family Lawyer at the point of the Nikah being drafted.
Talaq, the most common type of Islamic divorce, can be divided into two categories:-
The husband divorces his wife for the first or second time, without her offering him any compensation for that. Here, it is permissible for him to take her back before her Iddah (stipulated waiting period) ends.
Major irrevocable divorce, which is when a man issues a third divorce to his wife. In this case, it is not permissible for her to go back to him until after she has married someone else, in a valid and genuine marriage (i.e., after consummating the marriage), and the new husband divorces her (known as the practice of Halala).
Minor irrevocable divorce, which is when the man divorces his wife for the first or second time, then her Iddah ends, or he divorces his wife in return for compensation, or he divorces her before consummating the marriage with her. In this case, it is permissible for him to take her back, but it must be with a new marriage contract and a new Mahr.
Immediate Talaq or subject to conditions:-
- Talaq with immediate effect e.g. when the husband says to his wife, “You are divorced” or other implicit words with the intention of divorce, without making the divorce conditional upon anything.
- Talaq which depends upon a condition – tied to a clear oath or clear condition e.g. “When the sun sets, you are divorced.”
Civil law overlap
Besides navigating the complexities of Shariah Family Law, it is also important to bear in mind that, if the couple have a valid marriage (under the jurisdiction of England and Wales) they should also consider a civil divorce, the arising matrimonial financial matters and the arrangements for any children. It is important to seek the assistance of a Specialist Family Lawyer in this respect.
How can we help?
Our Senior Associate, Aysha Chouhdary deals with complex religious and cultural matters (often with an international element) and is multilingual. If you would like to discuss your matter further, please contact Aysha at aysha.chouhdary@geldards.com.