English Court recognises an Islamic marriage that took place in England for the first time in a landmark ruling

Divorce|Family Law|Relationships|August 3rd 2018

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.”

Get in touch

If you want to discuss this issue or any other divorce issues with Sarah Jane you can contact her here.

Author: Sarah Jane Lenihan

Sarah advises on all areas of family law (divorce/dissolution, cohabitation, domestic violence, children) and has worked with a broad spectrum of clients both nationally and internationally.

Comments(15)

  1. Andrew says:

    This is a disastrous ruling. Every marriage in England can and should conform to the Marriage Acts. That way the parties have to swear that they are free to marry (in the English sense, that is not already married) and have a certificate in a form familiar to courts and officialdom to prove the marriage.

    What next? Actually polygamous marriages recognised?

    I hope this is taken to successful appeal – and if not the law should be quickly amended to provide that “off-piste” ceremonies – like divorces other than by a court of civil jurisdiction – have no place and no significance here. This is more important than the financial claim of any individual.

  2. Helen Dudden says:

    When the law states a process for marriage, and online there is a guide to the legality of English law. This covers a Jewish Wedding, and a Quaker Wedding.
    I agree, how can you dissolve a marriage that never existed, under English Law.

  3. Nick Langford says:

    “Sought”, not “sort”.

  4. spinner says:

    This is forced state marriage. If the couple who are both mentally competent had wanted to get married they could of registered themselves as married at any point, but they choose not to. Two individuals freely entered into an unmarried relationship and now the state is saying against the will of one of the parties that they are married so have to deal with the legal consequences of getting divorced. The state is stepping over the line of individual rights to manage their personal relationships as they and the other person see fit.

    I have one or maybe two years left in the UK at most due to family commitments and then I’m done as the UK state is out of control and in so many ways, this being one of them that I knew would happen, is trampling on individual rights and freedoms.

  5. Bu says:

    The marriage was deemed void not a non-marriage so the judge granted a Decree of Nullity.
    More and more couples are choosing new and innovative ways to conduct their wedding ceremonies such as holding them in different venues, conducted by different people other than religious figures and choosing to have a ceremony that represents their beliefs and is totally personal to them, i.e. a ‘non-religious wedding’.
    There are three different types of non-religious wedding ceremonies
    1. Non-religious and without rituals
    2. With rituals but no religious elements
    3. Religious in feel, but not in practice
    Some of these marriage ceremonies are not recognised by English Law currently but this case sets a precedent for these marriages.

  6. Helen Dudden says:

    Spinner. But they are not married.
    In English Law we have set described procedures to marry.
    I’m not a Christian, so should I wish to marry legally, I would have to make sure further steps were taken. It’s written online, and describes how both Quakers and Jews must take further steps. It’s our law. I accept two types of law, but we are in an English legal system.

    • spinner says:

      “Spinner. But they are not married.” – I understand the terminology the court has used but why then do they need to go through a “divorce” or at least the financial aspect of a divorce which is by definition the most onerous part with the largest consequences.

  7. Ibn al-Qurturbi says:

    This is not a judgement that can last. There was no basis for common law marriage in the UK until this week- for very good reasons.

    It should also be noted that the High Court judgement carries zero weight within the Shari’a framework- in effect, the Shari’a marriage is still valid, and any attempt on Akhters part to engage in a new relationship would be considered adultery.

    The financial settlement enforced by the state would be viewed as “ghasb” i.e. usurpation under Shari’a. For observant Muslims therefore, it would not be Islamically permissible to accept such a settlement.

  8. Andrew says:

    It is not as if it was difficult or expensive for two adults, both legally free to marry, to do so properly.

    Clerics celebrating these ceremonies without sight of a civil certificate should be prosecuted. If a religious building is used it should lose its rating relief.

    And don’t get me started on the impossible position when a “spouse” pops up out of the woodwork after one party has died and claims the assets – and it will happen.

    We need the Court of Appeal to say “a ceremony in England but no certificate – no legal relationship – not even a void marriage”.

  9. Linda says:

    Helen, even for muslims to be legally recognised in UK law, they have to register at a Registrar Office after the religious Nikah has taken place. As marriage in Islam is a contract between 2 people, a prenuptial agreement is made prior to the Nikah which states what will happen during and after marriage if divorce were to take place.
    Marriage should be made more difficult in the first place where each couple should have to go through a premarriage course to see if they are compatible.
    The prenup agreement has to be fair and realistic. If the division of assets is weighted too heavily in the favour of one party, it may be judged to be unfair by the courts.
    Full and frank financial disclosure of both parties’ assets are made prior to the agreement and Assets are not hidden.
    The agreement must not be entered into less than 30 days before the marriage.
    During marriage each will support each other in their careers if need be.
    If divorce occurs, it would be amicable with financial division as stated in the prenup and if children are involved then there would be Shared Parenting as they are the most affected by divorce.
    These are the main factors of prenups made by muslims in the UK.

  10. Helen Dudden says:

    The same in Jewish Law. As you know the Jewish Community have agreed laws. But also, understand it has to be legal.
    I am aware of Sharia Courts.

  11. Omran says:

    Dear Sir
    My son got married last September by signing a Muslim nukah agreement conducted by Imam .
    In April 2018 they got married at the registers office . Due to strange behaviour of his wife life becoming unbearable with her & now contiplating the idea of divorcing her. From the begging her mother was insisting on registering property in her name & now transpired this could be a possibility behind the unsusaul conduct.
    He owned properties befor getting married & concerned he may lose financially.
    Can you pls advise if the nukah contract can be considered as prenuptial agreement & if not does it mean the English law will prevail & may lose 50% of his assists .
    If the nukah agreement is applicable can you assist & what do require , bearing mind the contract is written Arabic

    • Matthew Jackson says:

      Hi Omran, thanks for your comment. Essentially we would be need to get the marriage contact translated to see what conditions were written into them before we could advise further. It would probably be sensible for you to speak to one of our specialist Islamic lawyers so I would suggest that you contact the firm and speak with Naheed Taj who can help. You can find her contact details here https://www.stowefamilylaw.co.uk/team/naheed-taj/

  12. Helen Dudden says:

    I believe, there are good reasons to follow the law to the letter. If you apply the law as it’s written, then you are less likely to have problems.
    The problems with translation is, sometimes, it’s gets lost in translation.
    I’m sorry to hear your son is unhappy.

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