A consideration of religious marriages and how these are treated on separation in the English courts.
What is marriage?
Lord Penzance in the case of Hyde v Hyde in 1866 defined marriage as ‘…the voluntary union for life of one man and one woman to the exclusion of all others’. The definition of marriage has evolved somewhat since then, particularly since the introduction of same sex marriages in 2014, however there is still a certain threshold to meet in order to have a marriage.
The overarching point is that in order for marriage to be valid in English law, it has be registered in a civil union.
There are several criteria that the marriage must comply with in order for it to be deemed valid, such as:
- The parties must be of marriageable age, i.e. 16 with parental consent or otherwise age 18 or over;
- The parties cannot be too closely related to each other;
- Neither party can be already lawfully married;
- Both parties must have the capacity to marry, i.e. they understand the nature of the marriage contract and the duties and responsibilities that normally attach to marriage;
- Both parties must consent to the marriage; and
- The marriage must be consummated
Many of the criteria above will feel familiar to anyone who has ever contemplated marriage. One element that may however be less familiar, and less easy to understand, is that the marriage ceremony must be recognised as a valid ceremony in accordance with the law of the country in which the marriage takes place;
Without a clear understanding of what constitutes a valid ceremony, people could believe that they are legally married when in fact that are not. This commonly arises in relation to religious marriages that do not comply with the requirements under English law.
The legal terminology in this area centres on whether a marriage is:
- Void: one that will be treated by the courts as never having taken place
- Voidable: a marriage that does exist until it is annulled
- A non-marriage: one that was never intended to be a ‘proper’ marriage
Why does this matter?
From a family law solicitor’s perspective, the key concern is what would happen if the relationship were to break down. If a married couple gets divorced (or civil partners have their civil partnership dissolved), their status gives rise to a number of financial claims that could be made against their ex-partner namely in respect of property, cash, pensions and maintenance. These claims are not available for cohabitees i.e. two people who have simply chosen to live together. There have been a number of recent examples where the courts have had to intervene to shed some light on the grey area where a marriage is not quite a legal one.
If the Court finds that the marriage is void or voidable, it can potentially grant a decree of nullity and make consequential financial orders. If faced with a non-marriage, the decree of nullity and the associated financial protection may not arise. Financial orders can be important on separation, and enable the court to resolve issues such as property, cash, pensions and maintenance.
Sharia law – independent review
In May 2016, the Government commissioned an independent review of sharia law in England and Wales. This was published in February 2018. It stated that whilst many aspects of sharia law has been modified or modernised, many Muslim societies still observe classic sharia law in relation to marriage and divorce.
Sharia councils exist to tackle the bridge between the English laws and Islamic practice. The report found that the majority of users of sharia councils are women, and over 90% of them are visiting the council to seek an Islamic divorce. A key finding was that a significant number of Muslim couples fail to civilly register their religious marriages and therefore some Muslim women have no option of obtaining a civil divorce.
The report recommended that all Islamic marriages should be registered under English law. It proposed amendments to the Marriage Act 1949 and the Matrimonial Causes Act 1973 to ensure that civil marriages are conducted before or at the same time as the Islamic marriage, as with Christian and Jewish ceremonies.
By linking Islamic marriage to civil marriage, the report aimed to ensure that a greater number of women would have the full protection afforded to them in family law and the right to a civil divorce, lessening the need to attend, and simplifying the decision process of, sharia councils.
Mr Justice Williams heard the case of Akhter v Khan and Another in July of this year, whereby he had to consider whether the marriage was void, due to the parties having undergone a Nikah ceremony (Islamic marriage ceremony) only.
The Judge stated: “what this case is not about…is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question: namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.”
Mr Khan defended Ms Akhter’s petition for divorce arguing that there was no valid marriage (i.e. it was a ‘non marriage’), despite Ms Akhter having repeatedly asked him to enter into civil matrimony.
The Judge considered fundamental principles of human rights and concluded that, even though there was no civil ceremony and the Nikah did not qualify as a legal English marriage, the Nikah ceremony bore the hallmarks of a marriage. The court noted that the parties lived as a married couple for all purposes; and they were treated as validly married in Dubai (UAE). As a void marriage (i.e. not capable of being a legal one because of missing formalities), the marriage fell within the scope of section 11 MCA 1973, and susceptible to a decree of nullity. This therefore enabled Ms Akhter to make financial claims against Mr Khan as though they had been legally married.
Every case of this kind will be treated on its own merits. The outcome of the case and the independent review are not an open door to all Nikah ceremonies being treated as civil marriage ceremonies, however it is certainly a step in that direction.
If you are unsure on the validity of your marriage, be that religious or not, then do not hesitate to contact us.