As a divorce settlement is awarded for a non-legally recognised nikah, what does this ruling mean for UK marriage law?

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Earlier this summer, the High Court ruled that the nikah of Nasreen Akhter and Mohammed Shabaz Khan fell within the scope of the 1973 Matrimonial Causes Act, and therefore that Akhter was entitled to a divorce settlement. 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”. 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[1].

The ruling was particularly significant given that previous similar cases have concluded that nikah marriages are legally non-existent in the UK, and therefore, in the event of the breakdown of these marriages, couples had no redress to the courts for their matrimonial assets to be divided[2].

Crucially the case raised the following questions[3]:

  • What is the status of Islamic law in UK courts?
  • Should state courts recognize Islamic marriages that have not been registered?
  • Does religious law stand in the place of state law?

The case in detail

Akhter petitioned for divorce from Khan on 4 November 2016. Khan “defended the divorce on the basis that the parties had not entered a marriage valid according to English law”, and thus contested the marriage, as well as the divorce, by arguing that his nikah was never valid because it was not accompanied by a civil ceremony. Akhter countered this by arguing that, even if Khan’s claim were true, the court should recognize a presumption of marriage from their history of “cohabitation and reputation [as married]” and thus should recognise their union as a “void marriage” according to section 11 (a) (iii) of the Matrimonial Causes Act 1973[4].

Therefore, the basic question the court had to answer was “whether a Nikah marriage ceremony creates an invalid or void marriage in English law”[5].

UK family law makes the distinction between valid marriage, void or voidable marriage, and invalid or non-marriage. Non-marriage may apply to couples who do not consider themselves married, or who do but have never undergone a marriage ceremony or who have exchanged promises in secret. They are not entitled to any of the marriage benefits or dissolution remedies in UK law, which are afforded to those who have valid marriages (marriages conducted in the UK in compliance with relevant UK laws or shown or presumed to be conducted abroad in compliance with relevant local laws)[6].

This case related to a marriage conducted according to Islamic law, which entails a marriage contract (nikah), offer and acceptance of marriage between two eligible parties (and guardianship for women for first-time marriages), two witness, and a dowry as basic requirements. Akhter was concerned with proving their marriage was valid, while Khan was concerned with showing it was not[7].

The Attorney General, Mr Nagpal, agreed with Khan by arguing that the marriage did not meet the “certain requirements” inherent in the Matrimonial Causes Act 1973, and then by arguing that the Human Rights Act 1998 does not affect the interpretation or application of section 11 of the Matrimonial Causes Act 1973. This is the first time UK laws on marriage have been interpreted through the Human Rights Act 1998[8]. The case was then taken to the High Court.

The judge in the High Court noted that the couple considered themselves married during their 18 year union and were considered married by others, that they had cohabited and had children, the marriage had basic validity under Islamic law, and that they had planned but never undertaken a reception and civil law ceremony. Furthermore, he noted that they were considered married while living in Dubai between 2005 and 2011 under UAE law. Mr Justice Williams stated the case also represented “potential wider public interests” because of its addressing of issues which had been examined by The Independent Review into the application of Sharia Law in England and Wales published earlier this year[9].

Based on this, the judge concluded that based on the facts and laws and the best interests of the child, the marriage was a void marriage, and therefore Akhter was entitled to a decree of nullity. In this ruling, the union was not considered to have been a valid marriage or a non-marriage, but instead was considered to be a “defective marriage” under Islamic law. As explained on the Sharia Source blog, “Having validly concluded an Islamic law marriage (nikāḥ) but not a UK or other state civil marriage; having lived with a man with whom she cohabited for 18 years and had children; and the couple having held themselves out as being married, Akhter and Khan had what might be termed a “semblance of marriage” – albeit void – that entitled the wife to take advantage of UK civil law remedies for maintenance and child custody upon dissolution”[10].

Analysis

In a feature on the Sharia Source blog run by Harvard Law School, scholars and practitioners of Islamic family law and related subjects weigh in on the case and its implications[11]. Excerpts of their analysis are below. Their analysis touches on the subjects previously raised through examination of the ruling (detailed here), as well as through examination of The Independent Review into the application of Sharia Law in England and Wales (detailed here); how Islamic marriage law can be applied to UK marriage law, the need to completely review the UK marriage laws themselves, and concerns about the protection of Muslim women in non-legally recognised marriages are all issues on which more thought is needed.

Ralph Grillo, Emeritus Professor of Social Anthropology at the University of Sussex, said, “The case (among others) reinforced my view that the law of marriage as a whole needs to be looked at, not least with regards to relationships which may be of many years duration but which have not been blessed by ceremony or legal registration”[12].

Ralf Michaels, Professor of Law at Duke Law School, commented, “The decision represents a huge step towards the protection of women whose Islamic marriages are not registered. It makes it harder for men to escape their obligations under civil law. At the same time, the decision is not unproblematic”[13].

Rebecca Probert, Professor of Law at University of Exeter Law School, University of Exeter Law School, commented that “The key problem with the decision in Akhter v Khan and the Attorney General – as with much of the commentary and many of the cases on non-marriage – is the failure to engage with the actual terms of the Marriage Act of 1949”. Read her full analysis here[14].

Intisar A. Rabb, Professor of Law at Harvard Law School, said, “The court determined that their marriage was void rather than non-existent – making their union something akin to what classical Islamic law would label a ‘defective marriage’ or ‘semblance of marriage’. Yet, the judgement leaves open the question whether and how this case extends to other religious or private marriage arrangements in the UK, particularly in situations where two parties inadvertently fail to comply with UK family law requirements”[15].

The attorney Hadeer Soliman and Vishal Vora, research fellow at the Max Planck Institute, commented, “Given the issues facing Muslims, marriage registration and the potential financial fall-out, it appears that reforming the law of cohabitation may help to bring a sense of clarity in such cases”[16]. In another piece, Vora adds, “For the maturing British-born South Asian population, there must exist an efficient mechanism to marry in a way that is meaningful to them and recognized by the state, in one step and certainly without the need of going to Court”.

[1] Sherwood, 2018.

[2] Sherwood, 2018.

[3] Shariasourceblog, 2018.

[4] Rabb, 2018.

[5] Rabb, 2018.

[6] Rabb, 2018.

[7] Rabb, 2018.

[8] Rabb, 2018.

[9] Rabb, 2018.

[10] Rabb, 2018.

[11] Shariasourceblog, 2018.

[12] Shariasourceblog, 2018.

[13] Shariasourceblog, 2018.

[14] Shariasourceblog, 2018.

[15] Shariasourceblog, 2018.

[16] Shariasourceblog, 2018.

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Sources

Rabb, I. (2018) ‘Case Brief: UK Family Law Court Recognizes Unregistered Islamic Law Marriage as Void but Entitled to Protections for the Wide and Children upon Divorce (Akhter v. Khan, 2018)’. [online] 13 August. https://beta.shariasource.com/documents/3367. [Accessed 3 October 2018].

Shariasourceblog. (2018) ‘FEATURE :: Roundtable on Islamic Family Law in the UK: Akhter v. Khan (July 2018)’. [online] 23 August. https://shariasource.blog/2018/08/23/roundtable-on-islamic-family-law-in-the-uk-akhter-v-khan-2017/. [Accessed 3 October 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].