The Court of Appeal has ruled that Islamic marriages, or Nikahs, are not valid under English Law. This clarifies that sharia marriages are not legally recognised at all in the UK. It also means that Muslim women have no legal protection if their husband divorces or leaves them, or even seeks another wife.
Islamic marriage with witnesses
Back in December 1998, there was an Islamic marriage ceremony, or Nikah, between Nasreen Akhter and Mohammed Khan in the presence of an Imam and about 150 guests. The partners knew that this was not a legal marriage, and the ‘wife’, Akhter, claims that they intended to follow up with a civil marriage ceremony, but that her ‘husband’ Khan refused to fulfil this promise. In the event, no civil ceremony ever took place. The couple have four children and were widely recognised as married in Britain and recognised as lawfully married in the UAE where they lived between 2005 and 2011. The couple separated in 2016 when, it is alleged, he wanted to take another wife.
Married ‘under sharia law only’
Akhter filed for divorce in November 2016, and her ‘husband’, Khan, responded that they were married “under Sharia law only” which meant that she had no legal rights as wife. Akhter then claimed that the Nikah was a void marriage in law because of failure to comply with procedural requirements. Khan contended that the Nikah was of no legal effect. The question matters because if the Nikah has no legal effect then there is no right for the woman to apply for financial provision. On the other hand, if the Nikah has legal effect then the woman has right of financial provision. Another consequence of the Nikah having legal effect would be that UK law would then effectively recognise sharia marriages by default thus giving Islamic law a foothold in English law.
High Court ruled ‘void’ marriage
The High Court in 2018 ruled that the Nikah was a void marriage. The argument was that it had “all the hallmarks of a marriage in that it was held in public, witnessed and officiated by an Imam, involved the making of promises, and confirmation that both the husband and wife were eligible to marry.” The judge also took into account the interests of the children. The Matrimonial Causes Act 1973 establishes that there are three categories of marriage: valid, void, and non-marriage. A valid marriage may be ended by a decree of divorce. A void marriage was not properly legally valid for some reason and may be ended by a decree of nullity. Non-marriages have no legal status as marriages.
Court of Appeal ruled ‘invalid’ marriage
The Attorney-General, on behalf of the government, recognising the importance of the principles involved, intervened to argue that it was wrong to recognise the Nikah as a ‘void marriage’. Earlier this month, The Court of Appeal overturned the decision of the High Court, ruling that the Nikah was an “invalid” non-legal ceremony – in other words, a non-marriage. The Court ruled that the Nikah was a “non-qualifying ceremony” in that the ceremony was not carried out in a registered building, and there was no registrar, and no certificates were issued. The parties could therefore not be considered to be married at all under English law.
Muslim women without registered marriages left unprotected
This judgment leaves many thousands of Muslim women whose marriages are not legally registered, without legal recourse in the case of divorce. This means that their only recourse for financial support from their former husbands is sharia courts which are widely recognised to be discriminatory against women. A Channel 4 survey in 2017 found that 66% of Muslim women who had had a Nikah had not had a civil ceremony, meaning that their marriages are not recognised in English law. Of these, 28% thought that they were legally married.
Southall Black Sisters (SBS), an advocacy group for South Asian women, intervened in the case to argue that sharia marriages (Nikahs) should have recognition in English law. In its press release responding to the judgment SBS said:
“As part of the One Law for All campaign, we sought to inform the Court of Appeal that many minority women, especially Muslim women, are deceived or coerced by abusive husbands into only having a religious marriage, which deprives them of their financial rights when the marriage breaks down. …”
“It leaves minority women exposed to deception by abusive husbands who want to avoid their rights and obligations in marriage and after a break-up.”
Pragna Patel, director at SBS said:
“Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.”
Calls to enforce registration of Islamic marriages
Last year the Council of Europe called on the UK government to take action to curb the application of sharia law in this country. One of the actions that the government is called to take is to make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony. The UK has until June 2020 to report back on what actions have been taken in response to this resolution.
The independent review into the application of sharia law in England and Wales also recommended in 2018 that Muslim marriages should be required to be registered. Baroness Cox has campaigned for many years for a legal requirement for religious marriages to be registered. Her Bill to this effect has not so far had the support of the government. A requirement to register Islamic marriages would protect the women if their husband divorces or abandons them, and also act to prevent polygamy.
Sharia marriages have no legal status
This judgment clearly means that sharia marriages have no kind of legal status under English law. In this sense it is to be welcomed, because it avoids giving sharia law some credence in the legal system. On the other hand, the judgment also makes clear that women who have Islamic marriages that are not registered do not have legal protection if their husband divorces them, abandons them, or even seeks an additional wife.
Government needs to act
The government is under pressure from the Council of Europe to come up with a solution to this problem. Christian Concern has supported Baroness Cox’s Bill which we believe would be the best solution. If Muslims are required to ensure that their Nikah’s are properly registered as marriages, then women would have legal protection and polygamy would be prevented. It would also undermine the vast majority of the business of sharia ‘courts’ which deals with divorce cases. We call on the government to support Baroness Cox’s Bill in order to protect these vulnerable women.
Author: Tim Dieppe
Republished by permission of Christian Concern.