For marriages in the UK to be recognised under English law, a civil marriage certificate must be obtained.
For marriages performed under some religious auspices this can be problematic, with the consequence that divorce and consequently financial remedies may not be available.
Religious marriage in the UK
The law recognises religious ceremonies if they comply with the requirements of the Marriage Acts 1949-1994, namely, that the religious wedding takes place at a registered religious building and the marriage is registered immediately after the ceremony by an authorised person, such as a religious minister, who must have a certificate or licence to do so from the local Superintendent Registrar.
The problem with Islamic marriages
An Islamic marriage ceremony, known as a nikah, is conducted by an Imam according to the principles of Sharia law. In the UK, it is common for a nikah to be performed in a mosque which has not been registered for civil marriages and by an Imam who has not registered as an authorised person. This results in the nikah being a ‘non-marriage’ and consequently, in the UK a nikah is not a legally recognised marriage. (However, if the nikah has been conducted overseas, in a country which practises Sharia law, it will be recognised as a valid marriage in the UK).
The problem with Islamic marriages is two-fold. Whilst an Islamic ‘nikah’ is not recognised as a legal marriage in the UK, this can be remedied by obtaining a civil ceremony alongside the religious marriage. The result is that a woman can seek the financial remedies available under domestic laws. However the problem Muslim women face is the struggle to obtain an Islamic divorce regardless of the legal status of the marriage. Unfortunately, this is not remedied by the civil marriage because Sharia Law does not recognise an English divorce and vice versa.
Divorce under Islamic Law
Under Sharia law there are two methods of divorce. The nikah gives a husband a right of divorce known as a talaq. The second procedure is when a wife desires to initiate a divorce, known as a khul’uh, and is more complex and time consuming. Under Sharia law a khul’uh requires the party seeking it to apply to their Sharia council.
Sharia councils have no legal status, no legal binding authority under civil law and no legal jurisdiction in England and Wales. Sharia councils are diverse and there is no single authoritative definition of what constitutes a Sharia council which can vary in in size, services offered and schools of Islamic thought. There is therefore a lack of a concise policy and procedure for a woman seeking a religious divorce and this is the epitome of deprivation of liberty because a Muslim woman cannot remarry without obtaining a religious divorce, whereas a Muslim man can. Under Sharia law women have to appeal to Sharia councils, largely made up of men, in order to be released from the marriage. However, men are not obligated to do the same.
Islamic marriage without a civil ceremony
In the UK a lack of recognition of the nikah may leave many women vulnerable following a talaq divorce as they may be unable to apply to the family court for financial maintenance or a share of the family home. In these circumstances Islamic marriages are treated by the courts as though they never occurred and are known as ‘non-marriages’. Many women in Islamic marriages do not realise they have no legal protection under British law unless they have a second civil ceremony alongside the Nikah ceremony.
There have been attempts to recognise an Islamic marriage in the UK, the most recent case is Akhter v Khan [2018] EWFC 54 the ruling of which entitle the wife to a decree of nullity which would enable a subsequent financial application to be made.
Islamic marriage with a civil ceremony
A woman’s desire for an Islamic divorce is unfortunately used by Muslim men to further coerce and control their wives under the cloak of religion, too often ransoming the Islamic divorce for a better financial settlement through the English courts. Whilst the law does specify that a Sharia council will be acting illegally should they seek to exclude domestic law when dealing with an Islamic divorce, they are not regulated and effectively run a parallel legal system in this country.
In this case, whilst a woman may seek the protection offered to her through domestic legislation, it is too often the case that these rights are all relinquished in exchange for her freedom to remarry by obtaining an Islamic divorce.
How to avoid Islamic marriage problems?
We are of the opinion that to avoid the problems of an Islamic marriage, you should undergo a civil marriage as well as a religious marriage to give you protection under domestic laws. This is the recommendation of an independent review of Sharia councils.
However, this does not deal with a woman’s right to a divorce under Sharia Law as applied in the UK. One way to deal with this, which has been recognised as valid under Sharia Law by several Islamic Ministers, is to dictate your right to a Sharia divorce in your marriage contract, which may become enforceable under contract law. This will save you a lot of hassle should you decide to seek a divorce under Islamic Law in the future!
