Does the decision in the case Akhtar v Khan leave Muslim women with ‘no rights when it comes to divorce’?
The recent Court of Appeal decision in the case of Akhtar v Khan has been widely criticised by the press as leaving Muslim women with ‘no rights when it comes to divorce.’
Understandably, there has been confusion, misreporting and incorrect information shared about the Akhtar v Khan case. I recently met Charles Hale QC, the barrister representing the intervenor to discuss this case further
This case involved a 20-year marriage and the court made the decision on the basis of the specific facts of this case.
The Islamic marriage was considered to be a valid marriage in the UAE where Sharia law is engrained within the law of that country. Importantly the marriage wasn’t conducted in accordance with the Marriage Act 1949.
Pragna Patel, director at Southall Black Sisters, a not-for-profit organisation, said:
“Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.”
Strictly speaking, this is incorrect. Sharia Councils are voluntary organisations which have no legal powers whatsoever. In my experience, dealing with them for the purposes of Islamic divorce has been limited to precisely that, an administrative exercise, much like dealing with a regular court.
Whilst this is disappointing for Ms Akhtar, ultimately, the law of the land must apply. Otherwise, where do we draw the line? There are new religious movements which emerge on a weekly basis, they each provide their own set of prescribes rules, traditions and formalities relating to marriage and divorce.
Can we give legal recognition to couples to marry in the future by complying with religious traditions, whatever they maybe? And if it doesn’t comply with the Marriage Act 1949, can we provide them with the ability to pursue a financial claim from a valid/void ‘marriage’?
Compliance with the law is critical. The jurisprudence of this country cannot be stretched to include a reference to every celebration or act considered to be a ‘legal’ and ‘valid’ form of marriage. It is compliance with the law which must be the primary focus, not that which one ‘thought’ to be compliant.
Increasingly, couples are deciding not to marry and as such, cohabitation rates are increasing. If the parties don’t want to comply with the requirements of the law and not marry, can the existence of marriage and financial claims arising from such ‘void’ marriages be forced upon them?
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