By Harriet Sherwood/The Guardian
Judgment leaves many Muslim women without redress at end of relationship, lawyers say
London-Islamic faith marriages are not valid under English law, the court of appeal has ruled in a blow to thousands of Muslim women who have no rights when it comes to divorce.
The judgment, delivered on Friday, overturned an earlier high court ruling that an Islamic marriage, known as a nikah, fell within the scope of English matrimonial law.
The appeal court has confirmed that nikah marriages are legally “non-marriages”, meaning spouses have no redress to the courts for a division of matrimonial assets such as the family home and spouse’s pension if a marriage breaks down.
Many couples who undergo nikah ceremonies believe they are lawfully married. But their marriages are only legal if they additionally go through a civil ceremony.
A survey in 2017 found that nearly all married Muslim women in the UK had had a nikah and almost two-thirds had not had a separate civil ceremony.
Responding to the appeal court judgment, Charles Hale QC, of the family law firm 4PB, said: “This means that many have absolutely no rights at the end of what they believe to be their ‘marriage’. No rights to assets in the husband’s sole name, and no rights to maintenance.”
The appeal court 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 than the law currently provides.”
The 2018 high court case concerned a couple, Nasreen Akhter and Mohammed Shabaz Khan, who had undergone a nikah marriage conducted by an imam in front of 150 guests at a restaurant in Southall, west London, in 1998.
The relationship had broken down, and Akhter petitioned for divorce. But Khan blocked the move, arguing that the couple were not married under English law, only under sharia or Islamic law.
Akhter said she had seen Khan as her husband, and he had “always introduced me as his wife”.
The high court heard that the couple intended to follow their nikah ceremony with a civil ceremony, but that Khan had refused to go through with a legal process despite frequent efforts by Akhter to persuade him.
Mr Justice Williams, who heard the case in the family division of the high court in London, concluded that the marriage fell within the scope of the Matrimonial Causes Act 1973.
Under the law, there are three categories of marriage: valid, void and non-marriage. Valid marriages may be ended by a decree of divorce; void marriages may be ended by a decree of nullity; non-marriages cannot be legally ended because legally the marriage never existed.
The high court ruled that the Akhter-Khan marriage had been “entered into in disregard of certain requirements as to the formation of marriage. It is therefore a void marriage and the wife is entitled to a decree of nullity”.
An appeal against the high court ruling was brought by the attorney general.
Three family judges sitting in the court of appeal concluded that to uphold the high court’s ruling “would gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community”. It added: “It is not difficult for parties who want to be legally married to achieve that status.”
The state did not have a human rights obligation to recognise religious marriage, the judgment said.
Daniel Jones, of the law firm BLM, said the appeal court judgment was “a real blow for all concerned”.
Source: The Guardian
