The court of appeal has ruled that Islamic faith marriages are not valid under English law, dealing a blow to many Muslim women who are left with no rights when it comes to divorce.
This judgement overturns the precedent set in a 2018 hearing at the high court which stated that a nikah – an Islamic marriage, fell within the remit of English matrimonial law.
Following the new ruling, nikah marriages are “non-marriages” in legal terms, leaving spouses with no redress to the courts regarding assets such as pensions and the family home after the relationship breaks down.
Nikah marriages are only considered legal if they undertake a civil ceremony in addition to the nikah ceremony, but a 2017 survey found that while nearly all married Muslim women in the UK had a nikah, nearly two-thirds had not had a separate civil ceremony.
Charles Hale QC, of the family law firm 4PB, said in response to the ruling: “This means that many have absolutely no rights at the end of what they believe to be their ‘marriage’. No rights to assets in the husband’s sole name, and no rights to maintenance.”
The appeal court had “upheld the existing concepts of what constitutes a lawful marriage … The law in these cases is not keeping up with society. These vulnerable women need better protection than the law currently provides.”
The high court case in 2018 concerned a couple who had undertaken a nikah marriage in 1998, conducted by an imam in front of 150 guests.
The relationship between Nasreen Akhter and Mohammed Shabaz Khan broke down and Akhter petitioned for divorce, only for Khan to block the move, saying that they were only married under sharia or Islamic law, not under English law.
Khan had “always introduced me as his wife”, said Akhter, and she had always seen him as her husband.
She told the court that they had intended to follow up their nikah with a civil ceremony, however, Khan refused to go through the legal process, despite Akhter’s best efforts to persuade him.
Mr Justice Williams, who heard the case, concluded that the marriage fell within the scope of the Matrimonial Causes Act 1973.
The Act states that there are three categories of marriage. Valid marriages, which may be ended by a decree of divorce; void marriages, which may be ended by a decree of nullity; and non-marriages, which cannot be legally ended as it was never legally a marriage in the first place.
The couple’s marriage had been “entered into in disregard of certain requirements as to the formation of marriage. It is therefore a void marriage and the wife is entitled to a decree of nullity”, said the high court.
The attorney general subsequently brought an appeal against the high court.
Sitting in the court of appeal, three family judges concluded that to uphold that ruling “would gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community”, adding subsequently that: “It is not difficult for parties who want to be legally married to achieve that status.”
The judgement went on to say that the state did not have a human rights obligation to recognise religious marriage.
Daniel Jones, from law firm BLM, said the ruling was “a real blow for all concerned”.
“The decision … will leave Muslim women in the UK in legal limbo, compelled to turn to sharia councils to pursue Islamic divorce. This often involves lengthy delays and does not afford women the same financial protections as would be granted if their ceremonies were recognised as a marriage under English law.
“This matter is of fundamental importance to Muslim women across the UK … leaving many women at great financial risk in unhappy relationships.”
Senior associate from Winckworth Sherwood, Anna-Laura Lock, said: “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 law on marriage was “no longer fit for purpose in a modern, multicultural and less religious society”, she added.
Pragna Patel of Southall Black Sisters, an organisation that has campaigned on the issue of nikah marriages, said: “Today’s judgment will force Muslim and other women to turn to sharia ‘courts’, which already cause significant harm to women and children, for remedies because they are now locked out of the civil justice system.
“What we are seeing is the outsourcing of justice on family matters to unaccountable and fundamentalist-inspired community-based systems of religious arbitration. This is not about recognising religious marriages; it is about the state guaranteeing equality to all before the law.”
In 2016, then home-secretary Theresa May instigated an independent review of sharia councils which recommended that Muslim couples should have a civil ceremony in addition to the religious ceremony to ensure women were protected under English law. The review found that a significant number of Muslim couples did not register their marriages under civil law, and that “some Muslim women have no option of obtaining a civil divorce”.
President of the Muslim Association of Britain, Raghad Altikriti, said that in the UK many Islamic centres had made civil registration a condition of nikah marriage.
She added that the appeal court ruling provided an “opportunity to continue the discussion to ensure that everyone’s rights are protected by facilitating a comprehensive system that incorporates the needs of all”.
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