The Supreme Court of India has recently been asked to consider the constitutional validity of a triple talaq – the oral divorce found in the practice of Islam. This raises the interesting question of how religion and the law interact and what happens when they conflict.
In Islam, it is permissible for a man (the option is not available to women) to divorce his wife by stating “I divorce you” three times. The wife should not be menstruating at the time and some Islamic scholars argue that there should be a period of time between each statement. However, once complete, the triple talaq brings the marriage to an end with no oversight by a court or any legal, or indeed any written, documents at all being required.
It has been reported that the Supreme Court of India has made some scathing comments regarding the triple talaq, including that this is the “worst and undesirable form" of the dissolution of a marriage. The court has been provided with evidence that a number of Muslim countries have abolished the practice of triple talaq including Morocco, Pakistan, Afghanistan and Saudi Arabia.
In England and Wales, the triple talaq is not recognised as a valid form of divorce. The only way to obtain a valid divorce is to send a divorce petition to the court. A judge will then consider whether the marriage has irretrievably broken down. This can be shown by proving one of five facts; adultery, unreasonable behaviour, desertion, separation for two years with consent or separation for five years. If satisfied, the court will then follow the necessary procedures to terminate the marriage and grant an order known as a decree absolute.
Whilst the law does not interfere unnecessarily with the practice of religion, there are important steps in a person’s life that it is thought important to regulate through specific legal procedures. A divorce creates an important change in status for both parties and so there should be a guarantee that this is fair and that it is documented. The court is not seeking to make couples stay together where a marriage has failed, but to ensure that such important decisions are not taken lightly. Court oversight also offers protection for the spouse who is in the weaker financial position as a decree of divorce will entitle him or her to make financial claims against his or her ex-spouse.
In the same way that the law in England and Wales regulates the termination of a marriage, it also regulates the entry into a marriage. This is an area where tensions have previously arisen when couples seek a divorce from the court and the protection that offers, only to find that their marriage was valid for religious purposes, but did not meet the requirements of a valid legal marriage. Again, it is the important change of status, and potentially the impact on any children of the family, that justifies the intervention of the law in religious practice.
Whilst controversy reigns in other countries about the validity of the triple talaq, it is long-established in this jurisdiction that an attempt to terminate a marriage in this way is not legally enforceable; if the couple concluded a valid legal marriage (either in England and Wales or one conducted abroad that is recognised by English law) they will remain married in the eyes of the law until the court grants decree absolute.