Islamic faith marriages not valid under English Law

On 14 February 2020, the Court of Appeal ruled that Islamic faith marriages known as a nikah are not valid under English law.

Under English Law, there are three categories of marriage: valid, void and non-marriage. Valid marriages may be ended by a decree of divorce; void marriages may be ended by a decree of nullity; non-marriages cannot be legally ended because legally the marriage never existed.

In 1998, Nasreen Akhter and Mohammed Shabaz Khan had undergone a nikah marriage conducted by an Imam in Southall, West London.

The couple had intended to follow their nikah ceremony with a civil marriage ceremony under English Law, but Mr Khan refused to go through with this legal process despite frequent efforts by Mrs Akhter to persuade him to do so.

The relationship broke down after 18 years of the marriage in 2016. The couple had four children together during the marriage.

Following the breakdown of the marriage, Mrs Akhter petitioned for divorce in the English courts. However, Mr Khan challenged Mrs Akhter’s right to obtain a Divorce on the ground that the couple were not married under English Law, but only under Sharia or Islamic Law.

In the case of Her Majesty's Attorney General v Akhter and Khan [2020] EWCA Civ 122, the Court of Appeal ruled that nikah marriages are legally “non-marriages”, the Court of Appeal ruled that nikah marriages are legally “non-marriages”.

This means that spouses in nikah marriages have no redress to the English courts for a division of matrimonial assets such as the family home and spouse’s pension when a marriage breaks down.

Mrs Akhter cannot now claim any money or property from Mr Khan in the English court in the same way a legally married spouse would have been able to do so.

This Judgment will leave many Muslim women without redress at the end of a relationship.

Many Muslim couples who undergo nikah ceremonies believe they are lawfully married. However, their marriages are only legal if they additionally go through a civil marriage ceremony under English Law.

This means that many women and men have absolutely no rights at the end of what they believe to be their ‘marriage’ including no rights to assets in their spouse’s sole name and no rights to maintenance.

A survey in 2017 found that nearly all married Muslim women in the UK had had a nikah and almost two-thirds had not had a separate civil marriage ceremony.

The Court of Appeal ruling in this case will leave Muslim women in the UK to turn to Sharia Councils to pursue an Islamic Divorce. This often involves lengthy delays and does not afford Muslim women the same financial protections, as would be granted if their marriages were recognised as a marriage under English Law.

In 2018, an independent review on Sharia Councils recommended that Muslim couples should undergo a civil marriage ceremony as well as a religious ceremony to give women protection under English Law.

This review instigated by Theresa May in 2016 when she was the Home Secretary found that a significant number of Muslim couples did not register their marriages under civil English Law and “some Muslim women have no option of obtaining a civil divorce”.

However, given Mrs Akhter’s frequent and unsuccessful attempts to persuade Mr Khan to undergo a civil marriage ceremony under English Law during their 18 years of marriage, is it realistic that Muslim women will be able to persuade their spouses to undergo a civil marriage ceremony as well as a religious ceremony, in order to give them protection under English Law, if their spouses are not prepared to do so?

Pragna Patel of Southall Black Sisters, an organisation that has campaigned on the issue of nikah marriages, raised concerns on the harm that will be caused to Muslim and other women who are forced to turn to Sharia Councils because they are now locked out of the civil justice system.

Ms Patel stated that: “What we are seeing is the outsourcing of justice on family matters to an 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.”

Anna-Laura Lock, a solicitor with Winckworth Sherwood stated that: “The law on marriage was no longer fit for purpose in a modern, multicultural and less religious society. Given the current law on marriage leaves parties to a religious ceremony so exposed financially following the breakdown of a relationship, a change in the law is long overdue and must surely be on the horizon.”

It remains to be seen if the strong criticism of the ruling made by the Court of Appeal in this case will result in any change of the law to recognise all marriages conducted by religious ceremonies only, as valid legal marriages and provide the same rights and protections that are available to spouses who undergo a civil marriage ceremony under English Law.