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Almost two years ago, the High Court in England ruled that the couple's Islamic "nikah" ceremony fell within English marriage law. The case involved the divorce of Nasreen Akhter and Mohammed Shabaz Khan, who have four children. They had a wedding ceremony in London in 1998 in the presence of an imam but without civil ceremony. Their relationship had broken down after 20 years. Mrs Akhter argued their Islamic faith marriage was valid, as was her application for divorce, and that she was entitled to the same legal protection and settlement offered in the UK to legally married couples.
Mr Justice Williams concluded back then that the marriage fell within the scope of the 1973 Matrimonial Causes Act. He said the marriage was void under section 11 of the act because it was “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.” 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 Court of Appeal overturned that decision on Friday and said the marriage was "invalid" under English marriage law. That means that 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 because such marriages are legally “non-marriages.” Nikah marriages are only legal if spouses additionally go through a civil ceremony.
As the Guardian reports, according to a survey in 2017 nearly all married Muslim women in the UK had had a nikah and almost two-thirds had not had a separate civil ceremony. “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,” Charles Hale QC, of the family law firm 4PB, said.
Pragna Patel of Southall Black Sisters, an organisation that has campaigned on the issue of nikah marriages, said: “Today’s judgment 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 recognizing religious marriages; it is about the state guaranteeing equality to all before the law.”
