JISPIL Vol 9 Issue 2 2013 - A3

Ilias Bantekas

English courts consider the validity of a talaq obtained abroad on the basis of the lex matrimonii, without examining whether the circumstance of the divorce, both factual and legal, offend English public policy. An anthropological inquiry into talaq obtained in most Muslim nations reveals that androcentric culture – as opposed to religious prescription as such – largely distorts the Koranic vision of this institution. This author suggests that English courts and the scholarly/religious community should entertain the notion of the contractual nature of nikah (marriage) in order to assess the consequences of the talaq. If a nikah is entered into without the wife’s unequivocal consent or under duress from family members then, as a contract, it may be declared voidable by the courts; the wife, however, would retain the right to seek redress from such a voidable contract. Moreover, besides comity and reciprocity, there is no other legal impediment as to why English courts cannot employ the Human Rights Act to counter foreign talaq obtained in violation of the wife’s fundamental human rights. This is particularly so where the wife repudiates the application of her personal law in favour of English family law, provided that this is done in a manner that does not expose her to accusations of apostasy.

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