Islamic ‘marriage’ ruling: implications

There has been a mixed response from family lawyers following the high-profile Court of Appeal ruling that an Islamic ceremony was not a marriage for the purposes of English law.

It denied the claimant any right to make a financial claim against her purported husband, leaving her with few if any legal rights. The ruling has far wider implications for the thousands of Muslim women in the UK who believe they are married and/or are relying on a subsequent civil ceremony to ensure their ‘marriage’ is legally binding.

It’s worth noting that, according to the Independent Review into the application of Sharia Law in England and Wales, published in 2018, a significant number of Muslim couples do not register their religious marriage as a civil marriage.

Also, the ruling impacts not just Islamic ceremonies but other religious ceremonies that do not satisfy the UK’s legal requirements for a legally binding marriage.

What’s the background?

In 1998, the parties went through an Islamic marriage ceremony called a ‘Nikah’ in a London restaurant. It was performed by an Iman in the presence of two witnesses. They always planned to follow it up with a civil ceremony but that never happened - yet both of them knew they needed to go through a civil ceremony to comply with the legal requirements of a marriage.

In 2016, the purported wife (W) petitioned for divorce. She relied on the presumption of marriage and, in the alternative, she asked the court to annul the ‘marriage’ under section 11(a)(iii) of the Matrimonial Causes Act 1973.

She failed on both counts. The Court of Appeal found it to be a ‘non-qualifying ceremony’ for the purposes of both the Marriage Act 1949 and the 1973 Act and it did not, therefore, create a void marriage. On that basis, there was no ceremony for which a decree of nullity could be legally granted.

The judges considered the legal framework governing the legal requirements for a binding contract of marriage and for nullity. The ruling notes that though the marriage ceremony can take any form (and which would obviously include an Islamic religious ceremony) – it must take place in the presence of an authorised individual, or a registrar and two witnesses.

The judges also provided a useful analysis of the concept of ‘non-marriage’, commenting on the “unsatisfactory nature” of the expression. They considered “that the focus should be on the ceremony and would propose that they should be called a ‘non-qualifying ceremony’” if out of scope of the legislation.

On that basis, the court clarified that there can be ceremonies which do not create a marriage, or even a void marriage, within the scope of the 1949 and the 1973 Acts and which do not, therefore, entitle the parties to a decree of nullity. This was clearly one of them.

Human rights

Counsel for the Attorney General1 (who intervened in the proceedings) argued, in the human rights context, that at no time did W possess any private law right against F requiring him to marry her lawfully or have any claim against him for refusing to do so. The appeal court agreed.

Also, there was the issue of the four children. The Court of Appeal disagreed with the conclusions of the trial judge that the court should, where appropriate, be able to take into account the best interests of children. It ruled that the interests of children play no part in determining whether a ceremony is a non-qualifying ceremony or a void marriage.

The case for change

Anna-Laura Lock, senior associate at Winckworth Sherwood, has commented on the wider impact of the ruling on religious marriage law in England and Wales. She said while the ruling was not surprising, “the decision has significant ramifications for Ms Akhter and many others in her situation who are denied access to the legal rights and obligations which are available following a divorce or decree of nullity.

“Given the current law on marriage leaves parties to a religious ceremony so exposed financially following relationship breakdown, this will not be the end of the road for this issue. A change in the law is long overdue and must surely be on the horizon.

“The present case is concerned with an Islamic marriage ceremony, but the decision applies equally to religious ceremonies in the many faiths that make up our multi-cultural society. We must ask whether it is fair that those planning to have a religious ceremony that is not in the Jewish, Quaker or Anglican faith must comply with more onerous, confusing and potentially more expensive requirements to have a legally valid (or potentially void marriage).

“A wider issue is that our current law dealing with marriage is no longer fit for purpose in a modern, multi-cultural and less religious society. The law does not take into account that people have different views about what they want their ceremony to look like both in relation to location, format and the people involved.”

Future developments
In an increasingly culturally diverse, law reform could now be within sight. The above-mentioned independent review, for instance, made a number of recommendations. One of its key recommendations was for a change in the law requiring a civil marriage to be conducted before or at the same time as an Islamic marriage ceremony.

Such a law change could include other religious marriage ceremonies, and would give more women the right to a civil divorce and much needed financial provision.

1 Her Majesty's Attorney General v Akhter and Khan [2020] EWCA Civ 122

 

 

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