What does the decision in the Akhtar v Khan case tell us?

Divorce|February 17th 2020

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?

Get in touch 

If you would like any advice on the outcome of the Akhtar v Khan case, Islamic marriage and English law, you can find about our legal services here or please do contact our Client Care Team to speak to one of our specialist Islamic divorce and family lawyers here. 

 

Kaleel has extensive experience in all areas of family law and consistently strives to deliver the best client service in the most expedient and cost efficient manner. As a Sharia Family Law specialist, he is often instructed in complex cases by Muslim clients from around the world.

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Comments(3)

  1. JamesB says:

    Change the ancillary relief law so that people can get married with inexpensive prenups. Simple.

    Rest of this is lawyers demanding to be heard and trying to marry people against their will in with dodgy law for the gravy train of lawyers fees.

  2. JamesB says:

    can the existence of marriage and financial claims arising from such ‘void’ marriages be forced upon them?

    I thought you said no.

    However, didn’t Mick Jagger have to pay Gerry Hall something even though their Budhist wedding was void?

    People should be able to write their own pre nups or not get married.

    What we have currently is people can get married or not which is not perfect but is reasonable when faced with dodgy divorce law as we have. Pushing people without their consent into dodgy courts isn’t the answer.

    Sadly I wont be advising my sons to get married as the law is currently, not without valid prenups.

  3. Andrew says:

    This is the right result, however regrettable the consequences for some individuals.

    The Marriage Acts have two consequences. The first is that every marriage in England and Wales is the subject of a declaration by both parties, under criminal penalties if it is untrue, that they are free to marry (under English law) and not within the (English) prohibited degrees; that declaration is made to the Registrar or (in the case of marriage by banns or licence in the Church of English or the Church in Wales) to the incumbent.

    The second is that every such marriage is the subject of a certificate in English (and in Welsh if in Wales) in a common form which is familiar to Registrars, courts, HMRC, British consulates abroad and foreign consulates here, and officialdom in general.

    More fundamentally, the State is properly concerned in the proper and orderly creation and dissolution of marriages; it cannot be left to self-appointed religious authorities. There is indeed a case to be made for requiring Anglican marriages to be by certificate of the Registrar like all others; the present exception is a historical anomaly.

    The problem is the refusal of a substantial proportion of Muslim people in the UK – and of a smaller number of some other faith groups, including a very small number of Jewish people – to engage with civil society. It is not difficult or expensive to be civilly married – less than £150 – and it is not difficult for mosques to be registered for marriages and in due course to appoint their own celebrants. It just takes the will.

    I would like to see R. -v- Bham reversed by statute and clerics carrying out purported marriages without sight of a civil marriage certificate prosecuted. And I would like to see any building where it happens which is registered as a place of worship deregistered and thereby lose its rating relief.

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