In this article, the writer examines how Muslim women who are religiously-married in Germany might initiate no-fault divorce in the absence of a German registered civil marriage.
Because there is no Muslim state authority to consult, local imams and Islamic leaders can resort to a community-led practice known as khulʿ (divorce initiated by the woman) to dissolve an Islamic marriage (nikāḥ) that is not recognized by civil authorities. In this article, which is the culmination of three years of fieldwork in Germany, I analyze and interpret the views and practices of two groups of religious actors – conservatives and pragmatists – towards khulʿ in cases of nikāḥ. I find that conservatives only permit a woman to divorce through khulʿ with her husband’s consent, whereas pragmatists use Muslim minority jurisprudence (fiqh al-aqalliyyāt al-Muslima) to argue that the husband’s consent is not essential to legitimize a khulʿ pronouncement.
When I first encountered Amina while conducting fieldwork in southern Germany in the summer of 2013, she had been through many years of a troubled marriage. Her wedding took place ten years earlier at a local mosque in a small German city, but the couple did not get a civil marriage at the registry office (Standesamt). Throughout her marriage, which produced four children, her husband mistreated, insulted, humiliated and, at times, physically abused her. When it became clear that there would be no lasting solution to their problems despite the numerous attempts by imams and other leaders of the Muslim community to help the couple resolve their difficulties, Amina asked her husband to grant her a ṭalāq (literally, repudiation, but in effect a unilateral divorce by the husband). In return, she offered to relinquish her right to the deferred portion of her dower (mahr muʾajjal) and to forfeit a sum of EUR 4000 that she had lent him. Islamic legal experts might understand Amina’s offer in two ways. If Amina wanted to renounce her deferred dower rather than return her already received prompt dower, legal experts might characterize it as a divorce by mutual agreement (mubāra’a). However, if one treats the waiving of the sum of EUR 4000 as compensation for her husband in exchange for his ṭalāq, then the divorce would be a negotiated repudiation (khulʿ).
Title: The Practice of Khulʿ in Germany: Pragmatism versus Conservativism
Author: Mahmoud Jaraba
Published in: Volume 26, Issue 1-2, 01 Jan 2019
Length: 27 pages