Protecting your interests outside marriage

Marriage|November 22nd 2017

Last night a documentary on Channel 4 examined the legal effects of a traditional Islamic marriage (nikah) in this country. Whilst it may spark controversy and media attention, the subject is nothing new. Advocates in this area have been trying to raise awareness for years, albeit with differing opinions on what should happen. Should the nikah be automatically recognised as a legal marriage for example, or would it be better to try and raise awareness so people can make an informed choice about whether or not to ensure their marriage is fully recognised?

Having helped many women who were unaware their religious marriages weren’t valid under English law, the lack of awareness and the confusion is apparent. Many websites still in fact refer to the nikah as legal.  Yet the consequences, both emotionally and financially, can be devastating when it transpires upon separation that this isn’t in fact the case. For the marriage to be legally recognised, it is necessary for it to be registered. There are many issues to explore, but this blog is focused on what to do if your marriage ends without registration.

What is sometimes overlooked is the mahr. This is the ‘financial present’ which a male will promise the woman for the nikah. As this is effectively a contract, it may be worth seeking advice on any potential civil claim if these funds are outstanding and are substantial enough to justify pursuing.

Not married? What are your options upon separation?

In the absence of a legally recognised marriage, parties have the same rights as the increasing number of couples who choose to cohabit rather than marry.  In this situation, the relationship has no legal status and it can be difficult to claim a share in the family home or other assets.  In contrast, if you are married you will have access to a financial settlement through the family courts. These permit a fair division of the matrimonial assets and try to ensure needs are met: in particular the needs of any children of the marriage.

However, what concerns many is the fear factor which can discourage some people in unrecognised marriages from even trying to pursue a claim.  Whilst the law hasn’t caught up and the possibilities are limited, there are some options.  The Guardian recently commented that in the absence of a registered marriage people are “unable to go to court for a division of the family home and spouse’s pension”. Whilst this is true in relation to any claims on pensions, it is not always true with regard to the family home. It is essential that people know some options are open to them, albeit much more limited ones than if they had been married for a long period of time. Legal advice should always be sought before concluding you are ‘unable’ to do anything.

It is possible in some cases to bring a civil claim for an interest in a property, usually the family home. Channel 4 does raise this, but also discusses a case which took five years and cost more than £100,000.  It is essential this doesn’t scare people or prevent them from seeking legal advice. For a case to last that long or cost that much is rare: most are resolved much more quickly and cheaply. A family lawyer can advise on your individual case and provide an initial assessment of its strengths and likely costs. This advice should always be sought before walking away, if you think have a claim of any kind.

There are other possibilities too which you can discuss with your solicitor.

How to protect yourself

A number of legal measures can help to protect your interests if you are or were not in a legally recognised marriage. These include:

  • A cohabitation agreement
  • A declaration of trust
  • Making a will

The essential factor is knowledge and the resulting ability to make the best informed decision for your circumstances, within the remit of the law.  To be sure, always seek advice.

A number of lawyers have called for change in this field and I hope we’ll see improvements with time. But, until then, be sure to explore those things you can do.

Author: Amy Foweather

Amy is a solicitor at the Stowe Family Law office in Beverley. She specialises in a wide range of family cases, including divorce, separation, cohabitation, adoption, pre- and postnuptial agreements and matters involving children.

Comments(3)

  1. spinner says:

    Even with additional cohabitation laws a lot of Muslim religious marriages are polygamous with the “husband” switching between houses where the wife and children live, who is he cohabiting with if either of them.

  2. Andrew says:

    The present law requires that every marriage in the UK (except Anglican marriages, an anomaly of history which could well be abolished) is the subject of a declaration before a public official (and indeed the Anglican cleric substitutes for that official) under criminal penalties that both parties are free to marry in the sense of the law of this country – that is, single. And it is then (the Anglican marriage too) the subject of a certificate in a common form which every court and every government department will be familiar with.

    The problem is the irresponsible behaviour of clerics who conduct these ceremonies without insisting on a civil marriage first as the Marriage Act envisages. They should be prosecuted.

    The stories on the programme were sad – they were chosen to be. But the law as it stands is right and the pass must not be sold.

  3. Andrew says:

    In fact the proposal offered was more reasonable than I expected – to adopt the Authorised Celebrant instead of the present system; which could work if the clerics jumped through the paper hoops and got themselves authorised and then only performed legal ceremonies. And that is a big if.

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