Islamic 'marriage' ruling leads to calls for law change

An Islamic ‘marriage’ declared a non-marriage by the appeal court and therefore invalid, means the purported wife cannot make a financial claim. 

In Her Majesty's Attorney General v Akhter and Khan, a Nikah (Islamic marriage ceremony) took place in 1998 in the UK. 

The couple planned to have a civil marriage ceremony but it never happened, though both parties knew that in order to contract a legal marriage they had to go through a civil ceremony.

The wife petitioned for divorce in 2016 relying on the presumption of marriage. Alternatively, she sought to have the ‘marriage’ annulled.

The Court of Appeal concluded it was a ‘non-qualifying ceremony’ for the purposes of the Marriage Act 1949 and Matrimonial Causes Act 1973 and did not create a void marriage. 

This meant there was no ceremony for which a decree of nullity could be granted under the legislation.

Commenting on the impact of the ruling on religious marriage law in England and Wales, Anna-Laura Lock, senior associate at Winckworth Sherwood, said a change in the law is “long overdue”.

She commented: “The decision has significant ramifications for Ms Akhter and many others in her situation who are denied access to the legal rights and obligations which are available following a divorce or decree of nullity.

“Given the current law on marriage leaves parties to a religious ceremony so exposed financially following relationship breakdown, this will not be the end of the road for this issue.”

Lock commented: “The decision applies equally to religious ceremonies in the many faiths that make up our multi-cultural society.

“We must ask whether it is fair that those planning to have a religious ceremony that is not in the Jewish, Quaker or Anglican faith must comply with more onerous, confusing and potentially more expensive requirements to have a legally valid (or potentially void marriage).”

Current law dealing with marriage is no longer fit for purpose in a modern, multi-cultural and less religious society, Lock said.

“It does not take into account that people have different views about what they want their ceremony to look like both in relation to location, format and the people involved.”

The appeal court noted that the interests of children play no part in determining to whether a ceremony is a non-qualifying ceremony or a void marriage.

According to an Independent Review into the application of Sharia Law in England and Wales in 2018, a significant number of Muslim couples do not register their religious marriage as a civil marriage.

Three key recommendations included a change in the law requiring civil marriages to be conducted before or at the same time as an Islamic marriage ceremony, to ensure more women have the right to a civil divorce and financial provision.