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Prenuptial Agreements Key To Enforcing Shariah Law In Divorce Cases

Wendy Spires

27 July 2012

A ruling by the UK Court of Appeal yesterday has prompted lawyers to warn Muslim couples who marry under Shariah law that they should not expect UK divorce protocol not to apply to them.

The UK Court of Appeal found against Dr Zaid Al-Saffar, a man who believed that under Shariah law he did not have to pay his ex-wife maintenance payments. He apparently believed, since they married under Shariah law and agreed to be bound by its principles, that he had no obligation to make maintenance payments, and that, following Islamic tradition, his former wife’s family would support her going forward. He had also argued that since the couple had practiced the Islamic tradition of Mahr (a gift from the groom to the bride) she was no longer entitled to a share of the family home, reports said.

The ruling, lawyers say, underlines that couples who marry under Islamic rules are still bound by the UK courts if their relationship falls apart.

“Shariah courts can settle family disputes and annul a marriage, but unless agreed and formalised by the UK courts a couple will still remain husband and wife. The UK courts are blind to colour, race, religion and gender and will on divorce cases seek to ensure that a couple’s assets are divided equally and fairly,” said Carol Ellinas, a partner and family law expert at City law firm Winckworth Sherwood.

“Muslim couples wishing to retain the spirit of Islamic rules should consider a prenuptial agreement before they marry. A prenup, if agreed by both parties having first taken independent legal advice, can set out a couple’s wishes on separation and can reflect Islamic laws.

“If, however, a prenup is patently unfair or discriminatory, or has been forced on a party, the courts are likely to ignore it.”