An Islamic marriage ceremony, known as a 'Nikah' was recently not determined to be a legal ceremony by the Court of Appeal. This meant that the couple in question were never legally married under English law.
A 'Void Marriage'
In the recent case of Akhter v Khan and another (2020), an Islamic couple filed for divorce. The wife claimed that the couple had married in 1998, following an Islamic ceremony. However, the husband argued that the Nikah is a type of blessing, rather than a marriage in itself. The wife stated that she had insisted on a further civil ceremony throughout the marriage but the husband had refused.
In the first instance, the judge found that the parties had 'intended to embark on a process of marriage' but had not completed this process due to the husband's refusal. He also considered it relevant that it was a long marriage and that they had four children.
The judge ultimately held that the marriage was a 'void marriage'. The significance of this was that the wife would be entitled to financial remedies, the same as with a divorce.
After the judgement, the parties agreed a financial settlement. However, the Attorney General appealed the decision.
The Court of Appeal overturned the decision of the judge in the first case. It held that the Nikah was a 'non-qualifying ceremony', so it was not a void marriage. The marriage had never existed in the first place and therefore, a decree of nullity was not required. . This meant that the wife would not be entitled to financial remedies.
The Court of Appeal held that it was not relevant that the parties had intended to have a civil ceremony. They also rejected the argument that events after the ceremony, such as having children, made the marriage legal.
How Does This Affect Divorcing Couples?
The effect of this ruling is significant for couples who have had an Islamic marriage ceremony but have not had an additional civil ceremony to register the marriage legally. Without being legally married, the rights and entitlements of spouses in the event of a divorce are severely limited.
A poll for a Channel 4 documentary estimated that 61% of women in the UK who have had a Nikah have not had a separate civil marriage ceremony.
In standard divorce proceedings, the spouse in a weaker financial position may be entitled to maintenance or a higher percentage of the overall matrimonial assets. Importantly, it does not usually matter if property is owned in one of the parties' sole names as it will all be included in the matrimonial 'pot' to be divided as appropriate.
If there is no legal marriage, then these rights do not exist and the weaker financial party may find that they are not financially supported following a separation. There will be no right to maintenance and no rights to assets which are held in the other spouse's name. This is particularly problematic when all of the couples' assets are not held jointly, but are owned legally in the sole name of the financially stronger spouse.
Whilst the parties may not be legally married, they will remain bound by their Islamic marriage contract. It will therefore be necessary to apply to the UK Sharia Council for an Islamic divorce. This process is very different to the standard divorce procedure. For example, only the husband can issue divorce proceedings, unless the marriage contract states otherwise or in limited circumstances where the wife can ask the Sharia Council to initiate an Islamic divorce and release her from the marriage. However, the husband will usually have to agree to the divorce. The couple are also expected to have attempted all forms of reconciliation, including using family members as arbitrators. Fundamentally, an Islamic divorce does not afford the same financial rights and protections as divorce and financial remedy proceedings under English law.
Since the judgement, there have been calls for urgent reform as many people (usually women) are left vulnerable after finding out that they have no legal rights or protection upon separation. It has been suggested that the Marriage Act 1949 should include protection for all types of faith marriages.
How Do I Protect Myself In an Islamic Marriage?
- The most important thing to do is to arrange a separate civil marriage ceremony to register your marriage. This will ensure that you are legally married and will ensure your rights are protected under English law in the event of a divorce. This was recommended in an independent government review in 2018. If you are not sure whether or not your marriage has been legally registered, you should speak to a solicitor to check this.
- Seek legal advice when drafting your Islamic marriage contract. These can include pre-nuptial agreements. Whilst pre-nuptial agreements are not legally binding under English law, they are highly persuasive if they are drafted correctly and a number of conditions are met. A pre-nuptial agreement will help plan what will happen to both spouses' assets in the event of a divorce. It helps both parties to know where they stand and what they may be entitled to if they separate. If you have already entered into your marriage contract, you could consider a post-nuptial agreement instead.
- Ensure that property and bank accounts are held in joint names. If you are the legal owner of assets, you will be entitled to your share, regardless of whether or not you are legally married.