Sarah Jane Lenihan, Senior Solicitor at the Stowe Family Law London Victoria office, joined London Live at the High Court to discuss the landmark ruling that an Islamic faith marriage falls within the scope of English matrimonial law.
A ruling that has the potential to change the way Islamic marriage (plus other faiths) and divorce works in England and Wales.
Today, Sarah Jane joins us on the blog to discuss the case in further detail and recap on her London Live interview.
“This ruling certainly has the potential to set precedent for faith marriages and non-legal commitment ceremonies in the future. And it certainly felt like a shift change was happening as I joined the media at the High Court. But first, here’s a quick recap of the case.
Nasreen Akhter and Mohammed Shabaz Khan held an Islamic wedding ceremony in 1998.
After the relationship broke down, Ms Akhter sought to get a divorce saying the Islamic faith marriage was as valid as her application for divorce.
In response Mr Khan wanted to block a divorce application on the basis they were not legally married under English Law.
The case ended up being heard in the Family Division of the High Court where Mr Justice Williams reviewed the case and ruled that the marriage does fall under the scope of the 1973 Matrimonial Causes despite Mr Khan’s argument the marriage was under Sharia law only.
The judge went on to say that the union should be recognised because the couple lived as man and wife and had expectations similar to that of a British marriage contract.
Despite the marriage being recognised it was deemed void by the Court on the basis the marriage was flawed by not registering the marriage. By the marriage being deemed void Ms Akhter was allowed a Decree of Nullity.
So, what does this outcome mean for Ms Akhter and future faith marriages in England and Wales?
As I did for London Live I answer the key questions below.
What is the outcome on this case?
This case has seen an Islamic wedding ceremony being recognised by the Court. The marriage was deemed void not a non-marriage, which Mr Khan was attempting to argue. This has allowed the judge to grant a Decree of Nullity to Ms Akhter. The process acknowledges the invalidly of the marriage, rather than it never existing, and allows Ms Akhter to make a financial claim as if they were married under English matrimonial law in the first place.
Is this the right decision?
In my view, yes, this case gives hope to people whose marriage ceremony is not recognised by English Law.
By granting a Degree of Nullity it allows individuals who have had a faith or a non-legal commitment ceremony but not a separate civil ceremony to have their finances adjusted as if they had been married.
Without this, the marriage is not recognised at all and would mean that both parties would only have cohabitation claims which are substantially less than those when you are married.
To me, this is discrimination and I welcome the ruling and the possible change it will bring.
Does it set a precedent for future cases of its kind?
Absolutely. It serves as a message to those couples that undertake faith and non-legal commitment ceremonies, even if they do not meet the legal requirements under English law, that they may be entitled to financial relief. I do warn however each case is likely to be fact specific.
Can they still get a divorce?
No, the court has ruled the marriage as void.
Does it have implications for people of different faiths getting married?
Yes, this ruling could have implications for faith marriages and for couples who have non-legal commitment ceremonies.
What advice do you have for people having a faith or a non-legal commitment ceremony?
Despite this ruling, I would recommend having a civil marriage in addition to a faith or a non-legal commitment ceremony. This approach was recommended by Sharia Councils earlier this year and is the best way to avoid any risk as it brings a faith marriage legally in line with English law.”