News

Hazel Wright discusses the High Court’s Islamic marriage ruling in The Times

  • August 07, 2018
  • By Hazel Wright, Partner

Islamic marriage ruling reflects modern family values

Partner in the Family department, Hazel Wright, writes that a recognition that Muslim weddings infer financial responsibilities on spouses will bring comfort to many.

The attorney-general rarely intervenes in divorce cases, but the High Court hearing last week involving Nasreen Akhter and Mohammed Shabaz Khan was one of the exceptions.

The state has a direct interest in the certainty of marriage, not least because many laws give preference to married couples who enjoy tax concessions and other benefits.

Ms Akhter, a solicitor, and Mr Khan, a businessman, are both Muslims. They had an Islamic wedding ceremony but unlike many people they did not go on to have a civil ceremony.

They then lived as a married couple for 18 years and had four children, but the relationship broke down and Ms Akhter asked the court for a divorce.

Mr Justice Williams had to decide first whether they had a valid marriage for legal purposes. If not, did they either have a non-marriage — a so-called common law marriage with no financial links as spouses — or a void marriage, where the consequent decree of nullity allows the partners to make financial claims just as they would on divorce from a valid marriage?

For clarity, the judge explained: “What this case is not about … is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law.”

Unlike rabbis, vicars and some other celebrants, imams are not licensed to conduct weddings that comply with the requirements of a valid marriage in English law. The independent review of Sharia councils has recently recommended wider publicity for this situation.

But in this case, Ms Akhter knew that they needed to have their relationship registered in a civil ceremony as well as having the faith-based ceremony that is so important to many. The judge decided that Mr Khan did too, but he had repeatedly refused.

The lengthy judgment carefully considered a wide range of law and statues, including the European Convention on Human Rights. The judge considered that fundamental human rights law helped him in this case as he ruled that the marriage fell within the scope of the Matrimonial Causes Act 1973 in that it set out to be a lawful marriage and bore all the hallmarks of marriage. However, because it was not registered, it did not constitute a valid marriage under English law.

The judge concluded that for this couple, in their particular circumstances and based on specific facts, this was a void marriage, leading to a decree of nullity, as opposed to a non-marriage. His decision incorporated a “slightly more flexible interpretation” of the law. And that is at least a nod to the changes in family life of modern times.

The ruling is a welcome shift that may give some comfort to those couples who engage in a Sharia marriage that to all external appearances looks like a public wedding ceremony, but, as here, is invalid. In Ms Akhter’s case, it also means that she can proceed with financial claims in the family courts.

This article appeared in The Times and be read online here.


Related News

Nov 19, 2020
Jay Patel and Polly Atkins examine family law in the lead up to Brexit in Family Law Week
Nov 09, 2020
Richard Kershaw discusses trusts on divorce and their role in financial planning strategies
Nov 05, 2020
Hunters recognised in The Times Best Law Firms 2021
Nov 03, 2020
Rebecca Christie discusses economic abuse and its role in divorce in WealthBriefing
Nov 02, 2020
Jay Patel discusses Brexit and family law: do you need to take action before 31 December?
Oct 16, 2020
Rebecca Christie examines economic abuse during divorce proceedings in Family Law Week
Sep 16, 2020
Hetty Gleave examines HNW clients and the impact of the pandemic on their financial settlements in ThoughtLeaders4 Private Client Magazine
Sep 08, 2020
Hunters shortlisted at the Family Law Awards 2020
Sep 02, 2020
Jay Patel examines the Court of Appeal’s ruling regarding Islamic marriage ceremonies under English and Welsh law in STEP Journal
Sep 01, 2020
Jay Patel discusses financial claims on the breakdown of cohabiting relationships

© Hunters Law LLP 2020 | Privacy NoticeLegal & Regulatory | Cookies Policy | Complaints Procedure.

Hunters Law LLP is authorised and regulated by the Solicitors Regulation Authority (number 657218)