The Court of Appeal has overturned a High Court judgment which would have allowed many Muslim women in Islamic marriages, but without civil marriages to seek financial provision on the breakdown of their relationships.
In the case before the Court of Appeal, Akhter v Khan [2020] EWCA Civ 122, the couple had been through an Islamic Nikah ceremony in England. They understood at the time that for their marriage to be recognised under English law, they would need to have a civil marriage ceremony as well; but after the Nikah, the husband refused to participate in a civil ceremony. The couple’s relationship lasted for 18 years and they had four children; when they separated, the husband objected to a divorce on the basis that they had never been married.
It was accepted that there was no valid marriage, and the case turned on whether there was a void marriage, or whether the couple had simply been through a “non-qualifying ceremony” with no legal implications (similar to actors participating in a marriage ceremony in a play).
If there was a void marriage, then a decree of nullity could be made enabling the wife to apply for the same financial provision as if there had been a valid marriage. If they had simply participated in a non-qualifying ceremony, she would have no right to financial provision at all. This is because there is no such thing as “common law marriage” in English law, and, unlike in Scotland, cohabiting couples have no right to make financial claims against each other on the breakdown of their relationship, no matter how long it lasted or how many children they have. Often the female partner in a cohabiting relationship will have severely compromised her own financial position and earning capacity for the benefit of the family unit, to the benefit of the male partner, but will be unable to seek any financial provision in recognition of this.
In practice, many Muslim couples living in England have religious marriages which are not recognised under English law. Whereas the Marriage Act 1949 provides for Anglican, Jewish and Quaker marriages to be valid if they take place according to the practices of those religions, other religious ceremonies, including Islamic marriages, need to meet additional criteria in order to be recognised under English law.
As a result, many British Muslims are in a situation where they consider themselves to be married, and live as married couples, but their marriages are not recognised under English law. The Court of Appeal judgment means that unless these couples now undergo a civil marriage ceremony, they will not have the rights associated with marriage. Whilst this can include, for example, tax benefits, the main group of people suffering as a result of this situation are women who have sacrificed their financial independence for the benefit of their family, only to have their relationships end and their partners take advantage of the fact that no marriage ceremony recognised by English law took place.
In the judgment, the Court of Appeal recognised that the High Court judge had been trying to produce an outcome he considered fair, but determined that the decision he reached was not consistent with the wording of the Marriage Act 1949 and therefore could not stand.
It seems clear that the law is in need of updating, and there are various possible legal changes in the pipeline which could help women in this situation.
Firstly, the Law Commission is considering the law on weddings, and has set out that the project will “aim to ensure that the law works for all couples and all faiths”, and that they will make recommendations regarding “what the consequences of failing to comply with all or some of the requirements for a valid marriage should be”. However, even if the Law Commission recommend changes which will make it easier for a Nikah ceremony to be recognised under English law and their proposals are adopted by the government, they are unlikely to apply retrospectively, and so would only assist couples marrying after any change in the law.
Secondly, the Cohabitation Rights Bill is currently before Parliament, and if passed would make possible some financial provision on the breakdown of a cohabiting relationship. This would only be available in certain circumstances: where the couple either had a child or had lived together for three years, and where the party applying for financial provision has suffered an economic disadvantage, or the other party has retained a benefit, as a result of financial or other contributions made by the applicant to the relationship. The financial provision which could be made would be limited, but it would be a significant improvement on the current position. The law would only assist people whose relationships broke down after the law came into force. Although such legislation would be welcome, it is only a private members bill and has no guarantee of becoming law. Such proposals have been before Parliament before, to no effect.
Finally, there is a Bill before Parliament (the Marriage Act 1949 (Amendment) Bill) which would make it a criminal offence to purport to solemnize a marriage that is not registered and is not registered in the course of the solemnization. However, many people have, understandably, questioned whether criminalisation is the best way to address this issue.
It is to be hoped that Parliament will work to ameliorate this situation. In the meantime, it is important that those who went through Islamic marriage ceremonies which are not recognised by English law now discuss with their partner the need to have a civil marriage ceremony if they are to have the legal protection offered by marriage under English law.
If you have any questions or concerns about the issues raised here, please contact family department partner Jay Patel on jay.patel@hunterslaw.com or 020 7412 0050.
