India’s Supreme Court Rules Talaq Divorce Unconstitutional

Jan 10, 2018   ·   3 minute read
India’s Supreme Court Rules Talaq Divorce Unconstitutional

As a divorce solicitor, I often complain about some of the seemingly archaic rules and procedures that have to be complied with to obtain a divorce in the UK. Not only does a petitioner for a UK divorce have to establish that their marriage has irretrievably broken down as a result of adultery, unreasonable behaviour or after a period of separation, but they also have to fill in a divorce petition and sign a supporting statement during the Court process in order to finalise the end of their marriage and get a Decree Absolute of divorce. The divorce process can involve a lot of form filling and normally takes between 4 to 6 months to complete.

Many people in the UK have heard of the Talaq and perhaps think that an instant divorce by a husband repeating the word ‘’Talaq’’ three times would simplify the divorce Court process in the UK. Undoubtedly it would but many Muslim countries are now banning the Talaq on the basis that it is unfair to women as whilst a women can agree to marriage she cannot initiate a Talaq, leaving women vulnerable to being quickly discarded without Court process and without financial protection. .

As reported by the BBC, India’s Supreme Court is one of the latest Courts to rule on the Talaq divorce process and to rule it unconstitutional.

The Indian Supreme Court reached this opinion after 5 women appealed against the use of the triple Talaq by their respective husband’s and the injustice it created for them and their children. The Indian Supreme Court agreed that the Talaq is unfair.

In addition, the European Court of Justice has also recently looked at the Talaq and given an opinion on whether a Talaq is a valid divorce. The Court has ruled that European laws do not cover Sharia divorce. That means a Talaq divorce can’t be recognised by the European Court of Justice and needs to be accepted by the individual country as a valid means of divorce.

What does this all mean for UK wives who are told about a Talaq divorce or alternatively are threatened with one? ATalaq divorce isn’t recognised in the UK unless the Talaq was not only legal and effective in the country in which it was pronounced but also complied with procedural requirements. That means the UK Court will have jurisdiction to decide on whether the couple can get divorced or not, provided that the marriage is a legally recognised marriage in the UK. If so, not only does the wife get the protection of having to petition or respond to a formal divorce petition but she can also ask the Court to help her financially with an interim or short term maintence award ( known as maintenance pending suit ) and / or long term financial orders sorting out ownership of property and payment of maintenance.

So if you are presented with a Talaq or threatened with one then legal advice should be sought. The Talaq may well not be valid and , as importantly, there are legal UK Court remedies to help sort out child care arrangements and financial matters.

For advice about any aspect of divorce or children law please contact us.

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