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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.

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