All isn’t fair in love and law

First, we saw the legalisation of same sex marriage and soon, the law books will be rewritten to abolish the fault-based divorce system. Whether we like it or not, it appears that our laws are evolving in accordance with changes in society.

However, the same can’t be said in relation to the Court of Appeal’s latest ruling that marriages in Sharia law are not valid in England and Wales. Whilst Christianity remains the most followed religion in the UK, followers of the Islamic faith are on the rise. So why is it that our courts will not recognise a marriage ceremony in Sharia law, while one taking place in the Christian church down the road is valid?

The case of Akhter and Khan concerns a couple who married in an Islamic ceremony (a Nikah) at a London restaurant in 1998. Fast forward to 2016 when the parties separated and Mrs Akhter petitioned for divorce. Mr Khan argued that she couldn’t divorce him as they weren’t legally married.

At her first bite of the cherry, Mrs Akhter successfully argued that their Islamic faith marriage and therefore her subsequent divorce petition were valid, opening the door to a financial remedy application under the Matrimonial Causes Act. The High Court judge who made that initial ruling said that the couple had held themselves out to be husband and wife and that their vows had the hallmarks of a legally recognised marriage ceremony, such as the fact that it was held in public, witnessed, officiated, involved the making of promises and both parties were eligible to marry. The Judge also took into account the fact that there were children.

However, the Court of Appeal on Friday overturned that decision and said that a marriage under Sharia law alone does not constitute a valid marriage. A key element of the appeal judge’s decision was that the parties had actually intended to have a later civil ceremony and had therefore recognised that their marriage was not in fact a legal one.

What does this mean?

As briefly touched upon above, the knock-on effect for those who have not held a civil ceremony as well an Islamic ceremony means that they will be unable to make a claim for financial relief under matrimonial law. Generally speaking, it will often be the wife who is the weaker party under the mistaken belief that she was legally married. Practically, if the parties’ assets are held in the husband’s sole name or if the wife relied on the husband’s income to live, she would have no rights to bring a claim against him under divorce law, even if, such as in the case of Akhter and Khan, there are children involved. Sadly, this may result in the financially weaker party remaining in an unhappy and loveless relationship simply because they can’t afford to leave.

How can we avoid this?

This ruling has been shunned by many as there are genuine concerns that Muslim women will turn to sharia councils to resolve their ‘divorce’-related finances and are therefore not afforded the same protection as legally married persons.

The Court of Appeal stated that ‘it is not difficult for for parties who want to be legally married to achieve that status’, by converting the marriage in civil law.

It is therefore crucially important that if you have been married in a Nikah ceremony, you take the necessary steps to ensure that it is recognised as valid in our Courts. This means that notice must be given, the ceremony must take place in a registered building, certificates issued and a registrar (or authorised person) must also be present.

This will afford you the right to make a claim in matrimonial law in the event of the marriage breaking down in future, to ensure you obtain a fair financial settlement on the basis of what you are legally entitled to.

If you need support or advice on this issue, get in touch.