Date :Sunday, August 12th, 2018 | Time : 23:40 |ID: 68631 | Print

Can Muslim Marriage be covered by English law?

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SHAFAQNA – Muslim women in Britain have been “given hope” by High Court judge ruling that a Muslim woman can have a British court dissolve her religious marriage and was entitled to maintenance from her husband after they split even though they had only undergone a ‘nikah’ ceremony that is not accompanied by a civil marriage and is therefore not recognized by the law in Britain.

In Britain, most Muslim couples who are wed in religious ceremonies do not register their marriages with civil authorities, surveys have found. That step is necessary to make a marriage legally valid. Their marriages have existed only under Shariah, the legal code of Islam based on the Quran, and could be ended only under Shariah, because British courts did not acknowledge the existence of the unions. The circumstance often put women at a significant disadvantage, The New York Times reported.

Women have fewer rights against their husbands under sharia law than those who marry under civil law, which is recommended strongly that all Muslim marriages be registered with the civil authorities as well. If they are not, they are not legally marriages at all, which deprives the women and their children of much of the protection of the law if the marriage collapses, The Guardian reported.

The Honourable Mr Justice Williams found a woman was entitled to maintenance from her husband after they split, even though they had only undergone a “nikah” ceremony and had not formally registered their marriage.

They had four children before their relationship fell apart in 2016. Ms Akhter applied for a divorce but her husband defended it by claiming their marriage was in “sharia law only” and not valid under English law.

Sitting at the Family Division of the High Court in London, the judge ruled that their 18-year relationship was a “void marriage” under English law, rather than falling under the “non-marriage” classification previously given to sharia marriages, Independent reported.

The difference between a marriage that is void and one that never existed at all is sharper in law than in plain English usage. A void marriage exists strongly enough to be decreed null by a court. Once that happens, the provisions of normal civil divorce law apply, and the wife, or not-quite-wife, is entitled to all her rights under English, not sharia law, The Guardian reported.

In every sense save for the issue of legal validity this was a marriage and a long one at that,” Justice Williams wrote in his decision. No one disputed that the two were married by an imam in front of many witnesses, he added, and “this was followed by 18 years during which they considered themselves husband and wife,” as did everyone in their families and community, The New York Times reported.

Mr Justice Williams stressed that his ruling did not apply to all religious ceremonies, which the law must approach “on a case-by-case basis” to see if they fall under the Marriage Act 1949.

But he found that the particular circumstances of Nasreen Akhter and Mohammed Shabaz Khan meant they had the legal status of husband and wife.

“This case is not about whether an Islamic marriage ceremony (a nikah) should be treated as creating a valid marriage in English law,” said a written ruling handed down this week, Independent reported.

The ruling, which applies throughout England and Wales, means that the wife, Nasreen Akhter, can ask a civil court to award her a share of the couple’s assets. That includes property that is only in the name of her husband, Mohammed Shabaz Khan — a common arrangement in Muslim marriages — that previously would have been beyond her reach.

British legal experts said they knew of no other ruling that allowed the courts to get involved in dissolving a religious marriage that was never registered with the government. But they cautioned that it remained to be seen how broadly this precedent would apply. Other courts will have to interpret the ruling, and Britain’s highest tribunal, the Supreme Court, could weigh in.

Some of the British news media characterized the decision by Justice Williams as an official recognition of Shariah. It was not, a point he made explicitly, writing that the evidence was “clear, convincing and positive” that the marriage was not legally valid.

Ms. Akhter claimed that she and her husband had planned at the outset to register their marriage with civil authorities, and that several times over the years, she asked to do it but he refused. Mr. Khan denied that they had ever discussed civil registration.

Justice Williams cited the issue repeatedly, saying he believed Ms. Akhter, but he did not say clearly whether her intent to register was crucial to his conclusion.

Hazel Wright, a solicitor specialising in family law and partner at Hunters, said the ruling may not set a nationwide precedent, but “holds out some hope” for Muslim women without civil marriages and the rights they bring.

“A non-marriage leaves women with no financial rights for themselves at all – only for their children,” she explained.

“The fact that, for most Islamic marriages, this is the case means that usually the wives are very disadvantaged.”

Ms Wright said that many Muslim couples do not follow Islamic ceremonies with civil marriages – a requirement generated by the 1949 Marriage Act.

“The Marriage Act is quite old and we, as a society, need to reflect what people do – people have marriages in all sorts,” she added, pointing out that Muslim men can break off religious marriages by pronouncing the “triple talaq”, but women cannot do the same.

“We need to bring the law into the 21st century…the growth of common law marriage and cohabitation is huge”.

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