The Practice of Khulʿ in Germany: Pragmatism versus Conservativism

Mahmoud Jaraba

doi:10.1163/15685195-02612a0

Abstract

In this article, I examine how Muslim women who ae 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.

Highlights

Because there is no Muslim state authority to consult, local imams and Islamic leaders can resort to a community-led practice known as khul to dissolve an Islamic marriage that is not recognized by civil authorities
In January 2000, the Egyptian legislature introduced the option of a judicial khul, which enables a wife to obtain a divorce without the permission of her husband and without establishing fault on his part (Welchman 2007: 112-113; see Sonneveld 2012)
Algeria, the United Arab Emirates, Palestine, and Qatar, legalized judicial khul, their laws differed from the Egyptian model (Welchman 2007: 119)

Summary

Introduction

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. 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) She offered to relinquish her right to the deferred portion of her dower (mahr muajjal) and to forfeit a sum of EUR 4000 that she had lent him. In the absence of an Islamic judiciary in Germany, pragmatists maintain that local imams and other Islamic leaders are entitled to act as a Muslim judge (qāḍī) They argue that such religious leaders have the right to intervene and terminate the marriage, as a qāḍī could, if a husband refuses to accept a khul. The second group consists of Muslim clans and families who - owing to patriarchal attitudes - see khulas a threat to their unity and stability

Methodology and Outline

Findings

Conclusion