Ruling by high court that couple’s nikah falls within scope of UK marriage law could have significant implications for British Muslims

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A recent ruling by the high court that a couple’s Islamic marriage falls within the scope of the 1973 Matrimonial Causes Act could have significant implications for thousands of Muslims in the UK[1].

Nasreen Akhter and Mohammed Shabaz Khan married in 1998 in a nikah, an Islamic marriage ceremony, conducted by an imam. Akhter filed for divorce this year on the grounds that a nikah constituted a valid marriage in the UK, with Khan counter-arguing the case for bringing a divorce settlement to court on the grounds that marriage under Islamic law does not constitute marriage under UK law[2].

The judge hearing the case, Mr Justice Williams, concluded the marriage was void under section 11 of the 1973 Matrimonial Causes Act because it was “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”[3]. He made it clear that his ruling did not apply to all religious ceremonies, the approach to which must be decided “on a case-by-case basis” to see whether they fall under the 1949 Marriage Act[4].

The ruling is particularly significant given that previous similar cases have concluded that nikah marriages are legally non-existent in the UK. Therefore, in the event of the breakdown of these marriages, couples had no redress to the courts for their matrimonial assets to be divided[5].

Family law specialist, Hazel Wright, said the ruling had “given heart to many who otherwise suffer discrimination”. The court’s ruling in favour of Akhter protected her rights to make financial claims for herself which other women have previously not been entitled to[6]. She said that the current legal non-situation of nikah meant that in most Islamic marriages “usually the wives are very disadvantaged”. This is added to by the fact that Muslim men can break off religious marriages by pronouncing the “triple talaq”, which women cannot do[7].

Wright expressed the need for reform to current UK marriage law, saying, “The Marriage Act is quite old and we, as a society, need to reflect what people do – people have marriages in all sorts … We need to bring the law into the 21st century … the growth of common law marriage and cohabitation is huge”[8].

The ruling adds to the ongoing recent discussion about the relationship between Islamic marriage and English matrimonial law, and particularly its effect on women.

It was recommended after an independent review of sharia councils this year that Muslim couples should undergo a civil marriage as well as a religious one in order to afford women protection under the law in the case of a breakdown of marriage. Channel 4’s November documentary, The Truth about Muslim Marriage, flagged up several concerns about nikah not being automatically legally recognised in the UK, including that women are not entitled to civil protections in the event of a divorce.

The documentary also discussed, however, the possible benefits of having only a religious ceremony and not a civil ceremony, including that it can be used by young people to respectfully get to know one another before making a legal commitment, and that it offers sanctuary to those in polygamous marriages which are not legal under UK law[9].

Thus while the legal benefits to women of changing the law so nikah automatically constitutes a civil ceremony are quick to be publicised, as they have been in this recent ruling, the debate is much more multi-faceted than this.

You can read more about the discussion here.

[1] Sherwood, 2018.

[2] Sherwood, 2018.

[3] Sherwood, 2018.

[4] Dearden, 2018,

[5] Sherwood, 2018.

[6] Sherwood, 2018.

[7] Dearden, 2018.

[8] Dearden, 2018.

[9] Sherwood, 2018.

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Sources

Dearden, L. (2018) ‘Muslim women ‘given hope’ by High Court ruling that sharia marriages can be covered by English law’. [online] 2 August. https://www.independent.co.uk/news/uk/home-news/sharia-marriages-nikah-ceremony-divorce-women-island-high-court-english-law-a8475141.html. [Accessed 5 August 2018].

Sherwood, H. (2018) ‘English law applies to Islamic marriage, judge rules in divorce case’. [online] 1 August. https://www.theguardian.com/law/2018/aug/01/english-law-applies-to-islamic-marriage-judge-rules-in-divorce-case?CMP=share_btn_link. [Accessed 5 August 2018].