In our previous article on this topic, we considered the landmark ruling of Akhter v Khan [2018] EWFC 54 and whether this had fundamentally altered the legal position for individuals who had an Islamic religious marriage (also known as a ‘Nikah’) under Sharia law in England and Wales.
Upon a superficial reading of that case, it is easy to assume that the case was about whether Islamic religious marriages are in fact legal marriages. Some may have concluded that as a result of the ruling, Islamic marriage is now recognised in English law. This is not the case.
Although the ruling is a huge stride forward, it must be acknowledged that Islamic marriages held in the UK will not automatically be considered as valid legal marriages. Furthermore, the ruling itself did not state that the Islamic “Nikah” between Mrs. Akhter and Mr. Khan was a valid marriage under English law.
The case dealt with two central issues:
- Are the parties to be treated as validly married under English law by operation of a presumption of marriage? The short answer to this was “no”, there was no presumption of marriage between Mrs Akhter and Mr. Khan.
- Is the marriage a void marriage, which would enable a decree of nullity to be made? The short answer was “yes”.
In this case, the Judge took a flexible approach to the interpretation of a “void” marriage” at section 11 of the Matrimonial Causes Act 1973.
In applying this flexible approach to the facts, “the Judge concluded that the failure to complete the [civil] marriage process was as a result of Mr. Khan’'s refusal to undertake the process; Mrs. Akhter had sought to complete the [civil] process by asking Mr. Khan to do so; the Nikah ceremony bore the hallmarks of a [legal] marriage even though it was not one; the parties lived as a married couple for all purposes; and they were treated as validly married in Dubai (UAE).”
As a result, even though there was no civil ceremony and the Nikah did not qualify as an English marriage, the court still found that the marriage was “void” at law and a decree of nullity was made. By granting a decree of nullity in respect of the marriage, this enabled Mrs Khan to bring financial claims as a result of her decree of nullity.
In considering how to apply this ruling to any cases going forwards, it is necessary always to have regard to the specific facts. The courts will have to approach these matters on a case-by-case basis. There will have to be specific regard not only to the circumstances of the actual “Nikah” ceremony (or other religious marriage ceremony), but also to the parties’ behaviour and intentions before and at the ceremony (and indeed subsequently) and the extent to which the parties intend on embarking on a civil ceremony after the religious ceremony.
It is premature to suggest that we are at a stage at which the courts will now face a floodgate of parties seeking to pursue divorces following the breakdown of a religious marriage, which was not accompanied by a civil ceremony.
The reality remains that Islamic marriages (and indeed other faith marriages) are not automatically recognised in law and if the parties have not entered into a civil ceremony, their claims may well remain limited in the event of a relationship breakdown. That said, the case of Akhter v Khan provides parties with an alternative route to bringing matrimonial finance claims (subject to the facts of each case), even if there has been no valid legal marriage.
There is currently a campaign movement called “Register Our Marriage” which is focused on raising awareness, as to the lack of legal protection for unregistered religious marriages held in the UK. The campaign focuses on changing legislation to require the registration of all religious marriages so that they are recognised at law. It should however be borne in mind that in some cases, both parties may have actively chosen not to have a legal marriage when they have had a religious marriage and that choice and freedom not to have a legal marriage for whatever reason should also be respected.
In the meantime, Akhter v Khan gives hope to some that progress is being made to address the potential inequality before the law for those who have had an unregistered Islamic marriage ( or other faith marriage not currently legally recognised). However it appears that ultimately a change in the legislation is needed to address this matter and any such change will need to be considered carefully so as to sensitively address the needs, expectations and choices of all individuals who may be affected by any proposed change in legislation.
These are complex issues and seeking specialist family legal advice is recommended. If you would like to discuss this article or require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty or Alexandra Wilks.
Article image: London Central Mosque from outside by Amhaaw19. Usage licensed under under the Creative Commons Attribution-Share Alike 4.0 International license.