Ensure your Islamic wedding creates a legally binding marriage

Thousands of Muslim couples are thought to be taking part in Islamic wedding ceremonies each year in the UK without realising that their marriage may not be officially recognised under the law.

This can have serious consequences if they later wish to divorce because they may find the courts refuse to accept they were ever married, leaving them without any automatic rights to a share in what they may have thought were marital assets.

The issue was highlighted in a recent case before the Court of Appeal involving Nasreen Akhter and Mohammad Shabaz Khan, who had an Islamic marriage ceremony at a London restaurant in 1998.

They knew that the ceremony did not meet the requirements of the Marriage Act 1949 and therefore did not create a valid marriage, so they intended to follow up with a civil ceremony soon afterwards to comply with English law. However, no such ceremony was performed, despite the wife, Akhter, pressing for one.

The couple subsequently had three children, and the wife petitioned for divorce in 2016. The husband said they could not divorce because they were not legally married. The wife argued that there should be a presumption of marriage and sought a decree of nullity under the Matrimonial Causes Act 1973.

The High Court declared the marriage void, but the issue then became more complex when the Attorney General intervened and appealed against the ruling to establish a point of law.

The issue was whether the 1998 ceremony created a “”non-marriage””, or whether it created a “void marriage”.

The distinction is important. If the marriage was void, the ‘wife’ would be entitled to apply for financial remedy orders to get a share of the ‘marital’ assets and protect her financial interests. If it was declared a non-marriage, she would have no such rights.

The Court of Appeal held that the couple’s Islamic ceremony was a non-qualifying ceremony and did not even create a void marriage. The ruling has serious implications for Muslim couples who have only taken part in a religious wedding ceremony.

Charles Hale, who represented Akhter, said: “Thousands of women, usually Muslim women, believe that they lawfully marry in this country each year by undertaking a religious ceremony only. Many of them (and it is usually Muslim women) do not know in fact that, no matter how many people attend, no matter how public an expression of the marital contract, that they are not in fact lawfully married in accordance with the laws of England and Wales. 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, even if, as with Mrs Akhter, they were married for 18 years.

“The law in these cases is not keeping up with society.”

The decision has led to calls for a reform in the law, but the government has given no indication that it plans any changes.

Couples planning religious weddings should ensure they comply with the legal requirements needed to create a legally valid marriage.

Some of the key points are:

•  You must be 16 or over
• not already married or in a civil partnership
• not closely related
• the ceremony must be performed in a registered building
• a registrar or authorised person must be present
• prior notice must have been given to the superintendent registrar
• a marriage certificate must be issued.

The simplest approach might be to have a civil as well as a religious ceremony but if that is not considered appropriate, couples should ensure their ceremony adheres to the legal requirements to ensure they are married in accordance with the law.

Please contact Shelley Rolfe or Richard Phillips if you would like advice about divorce or any aspect of family law.

Ensure your Islamic wedding creates a legally binding marriage

 [2020] EWCA Civ 122

ATTORNEY GENERAL (Appellant) v (1) NASREEN AKHTER (2) MOHAMMAD SHABAZ KHAN (Respondents) & (1) FATIMA MOHAMMED HUSSAIN (2) SOUTHALL BLACK SISTERS (Interveners) (2020)

CA (Civ Div) (Sir Terence Etherton MR, King LJ, Moylan LJ) 14/02/2020