This article was originally published in STEP Journal’s Issue 4 and can be accessed here.
Islamic marriages under English law: What makes a marriage?
Whether someone is married significantly affects their legal rights and obligations. Anyone providing legal advice of a private client or family law nature will need to understand their client’s marital status. This is usually straightforward, but the recent case of Attorney General v Akhter and Khan [2020] EWCA Civ 122 highlighted the position of couples who participate in religious marriage ceremonies in England and Wales which do not satisfy the requirements of English law.
Under the Marriage Act 1949, provision is made for Anglican, Jewish and Quaker marriage ceremonies to be recognised by English law. Ceremonies carried out in accordance with the traditions of other religions must meet additional requirements, including the use of prescribed words, to be recognised under English law. Many religious marriage ceremonies do not meet the requirements, and whilst some couples also have a civil marriage ceremony to obtain legal recognition of their marriage, others do not.
In 2015, a Law Commission scoping paper – “Getting Married” – noted that the practice of religious-only marriages had been highlighted particularly in respect of Muslim couples. The campaign group “Register Our Marriage” has released figures indicating that 80% of married British Muslim women under 25 reported having had only a religious marriage ceremony, a Nikah, which did not create a legal marriage under English law. The figure for over-25s was 60%[1]. These figures are startlingly high[2].
AG v Akhter and Khan concerned a couple who had participated in a Nikah in England. They were aware it did not create a valid marriage under English law and had agreed to have a civil marriage ceremony as well, but the husband (as I will refer to him) subsequently refused to proceed with it. Eighteen years and four children later, the parties separated and the wife petitioned for divorce. The husband defended the petition on the basis that they were not legally married.
In the subsequent proceedings neither party suggested the Nikah had created a valid marriage: the wife argued that there was a void marriage and the husband that it was a “non-marriage”. If there was a void marriage, the wife would be able to obtain a decree of nullity. Whilst this would not affect the parties’ legal status (it would confirm their marriage was never valid), it would enable the wife to apply for financial provision from the husband on the same basis as a divorcing couple. No such claim can arise from a non-marriage.
Under s11(a)(iii) Matrimonial Causes Act 1973, a marriage will be void where “the parties have intermarried in disregard of certain requirements as to the formation of marriage”. Plainly, the Nikah had not complied with the necessary requirements. However, both the High Court and the Court of Appeal accepted that there are forms of marriage which fall entirely outside the Act. The Court of Appeal termed these “non-qualifying ceremonies”, and they result in neither a valid nor a void marriage.
Williams J in the High Court identified the issue as being whether the ceremony purported to be of the kind contemplated by the 1949 Act. Taking a novel interpretive approach, he held that one must look not only at the ceremony, but take a “holistic view” including considering issues such as whether the parties had agreed that the necessary legal formalities would be undertaken, why this did not happen, and the interests of any children. He concluded that in this case the marriage came within the 1949 Act and was void.
The Court of Appeal, whilst recognising William J’s desire to produce an outcome he considered fair, overturned his decision, holding that whether a void marriage has been created must be determined by considering the ceremony itself, and not future events. Here the extent of non-compliance with the formalities required by the 1949 Act meant that parties had not sought to marry “under” the Act at all, and thus not even a void marriage had been created.
The current position means many couples who consider themselves married lack the rights and obligations associated with marriage. This includes tax, pension and other benefits, but also puts many women in a financially vulnerable situation if their relationship ends. There is no “common law marriage” in English law, and, unlike in Scotland, cohabitees have no right to make even limited financial claims against each other on the breakdown of their relationship, irrespective of its length or whether they had children.
Consider two couples, Aisha and Ali, and Maya and Sami. Both married through a Nikah ceremony, but whereas Aisha and Ali also had a civil marriage, Maya and Sami did not. Both couples have children, and Maya and Aisha both stopped working after their first child was born. Ali and Sami are both successful in their careers, and during their marriages generated assets worth £1,000,000, held in their sole names, and earn £100,000 per annum. Both relationships break down, and the children live with their mothers.
Aisha can petition for divorce and apply for financial provision from the court under the Matrimonial Causes Act 1973. The starting point will be that she is entitled to half of the £1,000,000 Ali generated during their marriage, and she may well also receive spousal maintenance whilst she rebuilds her earning capacity. Ali will also have to pay child maintenance.
Maya will not be entitled to any financial provision for herself. Sami will have to pay child maintenance, and under Schedule 1 of the Children Act 1989 Maya can seek capital provision for the benefit of the children, including to purchase a home for them. Such provision will be on trust, returning to Sami when the children reach 18 or finish their education. If Maya had had any resources of her own from which she had made a capital contribution to property in Sami’s name, she would have a claim to realise her interest in that asset. If Sami promised Maya an interest in a property, and she relied on that promise to her detriment, she may also have a claim for an interest in that property, but such claims can be difficult to prove.
If Aisha’s and Maya’s marriages end on their husbands’ deaths, rather than separation, their positions will also be different. Maya will not be entitled to benefit from the spouse exemption for IHT purposes, and if their husbands had neglected to make Wills and were intestate, Maya would have no automatic right to inherit whereas as Aisha would have that right.
Clearly, reform is needed. The Law Commission is currently reviewing the laws around weddings in England and Wales, and indicate that they will “aim to ensure that the law works for all couples and all faiths”, and that they will consider “what the consequences should be for couples who do not comply with any requirements”[3]. However, any substantive change to the law may be years away, and is unlikely to apply retrospectively.
The Cohabitation Bill, currently before Parliament as a Private Members’ Bill, could provide some assistance to those in non-marriages. It would enable the court, in some circumstances, to order limited financial provision on the breakdown of a cohabiting relationship. There is, however, no guarantee that it will pass. Another Private Members’ Bill, the Marriage Act 1949 (Amendment) Bill, would create a criminal offence of purporting to solemnize an unregistered marriage, in an attempt to pressure religious leaders into ensuring religious marriages comply with the requirements of the 1949 Act. Again, its prospects of success are unclear.
The current situation is unsatisfactory and it is to be hoped that it will be rectified by Parliament. In the meantime, legal advisors will need to be alert to this issue, and where a client married through a Nikah ceremony in England and Wales, their advisor should check whether it complied with the requirements of the Marriage Act 1949 (which is unlikely), or whether a civil ceremony was also held. If not, the clients must be advised that their marriage is not recognised by English law, and on the legal consequences. Depending on their circumstances, the parties may wish to address the situation by entering into a civil marriage.
[1] Register Our Marriage briefing note dated 1 December 2019.
[2] Note that this relates only to those marrying in England and Wales. Weddings taking place abroad which are recognised as creating a valid marriage under the law of the place of celebration will be recognised in England.
[3] https://www.lawcom.gov.uk/law-commission-begins-work-on-weddings-reform/
