Appeal Court Ruling Leaves Muslim Women In Limbo

Last week saw a judgement that brought a blow to thousands of Muslim women, that meant they were not afforded any rights when it came to divorce.

There had been some hope on an earlier ruling that stated that an Islamic marriage, a Nikah, was considered a marriage under English matrimonial law. However, the judgement delivered last week, overturned this High Court ruling.

The appeal court stated that it had

“upheld the existing concepts of what constitutes a lawful marriage. The law in these cases is not keeping up with society. These vulnerable women need better protection that the law currently provides.”

Currently, if a marriage is not considered to be ‘valid’, either party at the end of the marriage has any rights over any assets solely in one party’s name or rights to maintenance or a spouse’s pension.

A survey in 2017 found that almost two-thirds of Muslim women in the UK who were in a Nikah marriage, had not made the union lawful under English Law with a seperate civil ceremony. As nearly all Muslim women had been married through a Nikah, this leaves thousands at risk of not having any rights should the marriage end.

Another worry with Nikah marriages is the ease in which a husband can end the marriage, by enacting the ‘triple talaq’, an instant divorce. This can be done simply by telephone or even over social media, leaving the wife instantly with no rights to the family home or finances if they are in the husband’s name.

Under English law, divorcing spouses have a starting point of 50-50 in the division of assets, however if the Nikah marriage has not been made valid with civil ceremony, neither spouse can apply to the family courts for a division of assets, but instead has to go through civil courts to prove any rights through financial contributions to a family home.

The most recent ruling comes after a 2018 High Court case between Ms Akhter and Mr Khan, who had undergone a Nikah marriage in 1998. The marriage took place with the intention that it would be followed up with a civil ceremony. However, despite various efforts by Akhter, Khan refused to proceed with the legal process.

Upon the breakdown of the marriage Akhter had petitioned for divorce, but it was blocked by Khan as he argued that the marriage was not recognised under English law, but rather under Sharia or Islamic law.

The case was to determine whether the ceremony amounted to a non-marriage or a void one.

A non-marriage is one whereby the legal process to form the marriage has been fundamentally defective. If a marriage is to be found a non-marriage, the parties are considered cohabitants and there is no financial responsibility to each other.

Avoid marriage is one whereby the marriage process did not follow some of the legal formalities. If void, the marriage is annulled but each party has a financial responsibility to each other.

Williams J, who heard the case, ruled that the marriage was in fact void and Akhter was entitled to a decree of nullity and a financial claim could be made:

“At the point when the Nikah ceremony was undertaken it was the parties’ intention and the expectation of the close family that it was the first stage in a process that would have included the civil ceremony and the Walima. I’m also satisfied that the question of the civil ceremony was returned to at various stages over the 18 years that passed subsequently.”

Williams J concluded that the marriage fell within the Matrimonial Causes Act 1973 as it had been:

“entered into in disregard of certain requirements as to the formation of marriage.”

The landmark ruling had given some hope to the many women who currently have no protection under the Matrimonial Causes Act as their marriages are not legally recognised.

The new ruling from the appeal court however concluded that if the High Court ruling was upheld it would “gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community… It is not difficult for parties who want to be legally married to achieve that status.”

Daniel Jones, of the law firm BLM, said:

“The decision … will leave Muslim women in the UK in legal limbo, compelled to turn to sharia councils to pursue Islamic divorce. This often involves lengthy delays and does not afford women the same financial protections as would be granted if their ceremonies were recognised as a marriage under English law.

“This matter is of fundamental importance to Muslim women across the UK … leaving many women at great financial risk in unhappy relationships.”

Anna-Laura Lock, a senior associate at the law firm Winckworth Sherwood, said:

“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. A change in the law is long overdue and must surely be on the horizon.”

“[the law on marriage is] no longer fit for purpose in a modern, multicultural and less religious society”

Pragna Patel of Southall Black Sisters, an organisation that has campaigned on the issue of Nikah marriages, said:

“Today’s judgement will force Muslim and other women to turn to sharia ‘courts’, which already cause significant harm to women and children, for remedies because they are now locked out of the civil justice system.

“What we are seeing is the outsourcing of justice on family matters to unaccountable and fundamentalist-inspired community-based systems of religious arbitration. This is not about recognising religious marriages; it is about the state guaranteeing equality to all before the law.”

This ruling by the appeal court seems to highlight the fact that in the UK, which has become so diverse in its culture and society, there needs to be a change in the law regarding what is a valid marriage.

Aina Khan, who launched the Register Our Marriage campaign states:

“All faiths must be governed by the rule of law. We shouldn’t have to opt in to a system; the default position should be that all marriages must be registered.”

Commenting on the Court of Appeal’s decision in Akhter v Khan and its impact on religious marriage law in England and Wales, Anna-Laura Lock, Senior Associate at Winckworth Sherwood, said:

“The Court of Appeal has just allowed the appeal in the case of Akther v Khan. Whilst not surprising, 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. A change in the law is long overdue and must surely be on the horizon.

“The present case is concerned with an Islamic marriage ceremony, but 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).

“A wider issue it that our current law dealing with marriage is no longer fit for purpose in a modern, multi-cultural and less religious society. The law 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.”

With the ease that a Nikah marriage can be ended and that lack of rights afforded to the parties of a Nikah marriage upon its end, do you agree with Aina Khan? Should measures be put in place to recognise Nikah and other faith marriages as valid if the intention is there?

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