This post has been contributed by Professor Mashood A. Baderin, Module Convenor for Introduction to Islamic law.
An Islamic marriage (nikah) solemnised in the UK does not, by itself, qualify as a legally valid marriage under UK law. Thus, most Muslim couples who undertake an Islamic marriage in the UK would normally complement it with a civil marriage ceremony to ensure that their marriage is legally valid under UK law, resulting in what is often illustratively described as “double-decker” marriage. In situations, where an Islamic marriage is not complemented by a civil marriage ceremony, the dissolution of such marriages and the scope of rights of women in such marriages have been contested in a number of well-known cases in the past, such as Shahnaz v Rizwan (1965) 1 QB 390 and Qureshi v Qureshi (1971) 1 All ER 325 amongst others. For an early analysis of such cases see David Pearl’s “Muslim Marriages in English Law” (1972) 30 Cambridge Law Journal, No.1 pp.120-143.
This issue relating to the status of Islamic marriages in UK courts resurfaced in the recent case of Akhter v Khan , which concerned an Islamic marriage solemnised between the parties in 1998. The parties had referred to themselves as husband and wife throughout their relationship and were considered as legally married while living in the United Arab Emirates between 2005 and 2011. They had frequently spoken about having a civil marriage ceremony to give their marriage legal validity under UK law, but this was never done. In November 2016, the wife issued a petition for divorce under English law, but the husband contested the petition on grounds that there was nothing to dissolve under English law as the parties had not entered a legally valid marriage in accordance with English law. In her reply, the wife averred that the presumption of marriage arising out of cohabitation and reputation should be recognised and applied to validate the marriage. She also averred in the alternative that the marriage should be considered a “void marriage” within section 11(a)(iii) of the English Matrimonial Causes Act of 1973 and thus susceptible to a decree of nullity under the law. In hearing the petition, the judge identified that the two main questions to be answered were:
- Are the parties to be treated as a validly married couple under English law by operation of a presumption of marriage?
- If not, is the marriage a void marriage, susceptible to a decree of nullity?
In seeking to answer these questions, the judge applied what he described as a “slightly more flexible interpretation” of section 11 of the Matrimonial Causes Act of 1973 to the facts, and held that even though there was no civil marriage ceremony and the nikah did not qualify as an English marriage, the failure to complete the marriage process through a civil marriage ceremony was as a result of the husband’s refusal, although the wife had sought to complete the process by asking the husband to do so. The judge noted that the nikah ceremony bore the hallmarks of a marriage even though it was not legally valid under English law, bearing in mind that the parties lived as a married couple for all purposes and that they were treated as validly married in the United Arab Emirates where they had lived for some time. In paragraphs 95-97 of the judgement, the learned judge noted:
“Applying that approach to the facts as I have determined them leads to the following conclusions:
- It was understood by both the husband and wife that they were embarking on a process which was intended to include a civil ceremony in which the marriage would be registered;
- The wife’s understanding and the husband’s expressed position was that this civil ceremony was to follow shortly after the Nikah ceremony;
- The failure to complete the marriage process was entirely down to the husband’s refusal after the Nikah ceremony had been undertaken to take action to complete the marriage process by arranging the civil ceremony;
- The wife thereafter frequently sought to complete the marriage process by seeking to persuade the husband to undergo a civil ceremony;
- The nature of the ceremony which was in fact undertaken bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry;
- Thereafter the parties lived as a married couple for all purposes;
- The couple were treated as validly married in the UAE.
On the basis of the slightly more flexible interpretation of section 11 of the Matrimonial Causes Act 1973 informed by fundamental rights arguments and taking into account the factors outlined above, I therefore conclude that this marriage falls within the scope of section 11 and was a marriage entered into in disregard of certain requirements as to the formation of marriage. It is therefore a void marriage [as opposed to a non-marriage] and the wife is entitled to a decree of nullity”.
QUERY: Does the decision in Akhter v Khan change the legal status of Islamic marriages in under English law?
The decision in Akhter v Khan has been understood variously by different commentators, with some suggesting that Islamic marriages have now been recognised as valid void marriages under English law, and thus opens the way for Muslim women to freely pursue their Islamic law divorces in English courts. That view tends to stretch the decision in the case too far.
The question of whether or not it can be said that this case means that English courts now recognise Islamic marriages as valid marriages under English law is discussed by Siddique Patel and Peter Morris in their article: “Does Akhter v Khan mean English Law now recognise Shariah marriages?” , which is a recommended reading on the subject.