Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
The recent Court of Appeal judgement of Akhter v Khan [2020][1], delivered on Friday 14th February, reversed a High Court judgement made in 2018 that had previously held that an Islamic faith marriage, nikah(the term given for a marriage contract under Islamic law), did fall within the breadth of English law.[2]However, the most recent decision held that such marriage - between Ms Akhter and Mr Khan - was invalid, consequently, leaving Ms Akhter and potentially many more Muslim women without redress and rights in respect of a divorce.[3]
Akhter v Khan
At first instance, the case was heard at the High Court in 2018. Nasreen Akhter and Mohammed Shabaz Khan underwent a nikah in a restaurant in London in December 1998.[4]They had then subsequently referred to themselves as husband and wife and Mr Khan had relied on the marriage to convince the authorities in the UAE it was a valid marriage for residence and employment reasons in the UAE between 2005 and 2011.[5]The parties had often expressed their intention to have a civil ceremony to recognise their marriage under English law but this had never occurred.[6]
Under the formalities of English law, a marriage ceremony can be held valid, voidable under Section 11 of the Matrimonial Causes Act 1973, void under section 12 of the aforementioned act or classified as a ‘non-marriage’ which encompasses ceremonies that are viewed as being too different and far removed from what was imagined under the Marriage Act 1949.[7]On the finding of a non-marriage, the court are unable to grant a decree of nullity nor can they make financial orders. In this respective case, Akhter argued that the marriage was a void marriage and as a consequence that she was eligible for financial redress.[8]
Justice Williams held in a rather stretched interpretation that the marriage was void, rather than a non-marriage.[9]This finding somewhat surprised commentators as it was not so in keeping with the current law.
Nevertheless, on appeal to the Court of Appeal, the Court confirmed that this interpretation of the law was incorrect and that Nikah marriages were legally classified as ‘non-marriages,’ meaning that spouses were not entitled to any financial compensation in respect of a separation of matrimonial assets.[10]Despite the fact this ruling is more in keeping with the legislation, it is clear that such law is outmoded and no longer fit for purpose.
Current Issues
There are multiple issues that arise in connection to Islamic Faith marriages and English law that this article cannot cover in detail due to the time and scope of such article. However, it will briefly discuss three topics: the challenging nature of aligning Islamic Faith marriages and English law, Sharia Councils in the UK and the argument of upholding the traditional concept of the sanctity of marriage.
i. The challenging nature of Islamic Faith marriages:
As marriage is a legal transaction, the current law requires three formalities in order to produce a valid marriage: preliminaries that present intent to marry, a ceremony and registration. The nature of nikah marriages are challenging in respect of these formalities because Islamic faith marriages can be conducted simply by the couple exchanging declarations without written proof or an imam present.[11]Therefore, they often do not fall under the requirements required by English law. In order for such a marriage to be deemed valid, a civil ceremony must be carried out. It is clear that such approach presupposes a narrow ‘Christian’ format which is outdated for our multicultural society in England and Wales.[12]
ii. Sharia Councils in the UK:
Sharia Councils have arisen as a result of two key elements. Firstly, the above issue of a lack of legal framework under English law that allows for recognition of such marriages. Secondly, the loyalty of Muslims to their original home countries and ethic identities has produced a ‘home away from home’ culture transferring the significance of Sharia law to the UK.[13]Consequently, the establishment of Sharia councils have become many Muslim women’s instrument in seeking an Islamic divorce, with the Independent Review Panel into the Application of Sharia Law hearing that 90% of the individuals using such councils were those seeking an Islamic Divorce.[14]As a result, it has been argued that there are now 2 distinct functioning legal systems within the UK.[15]
It has been said that the recent judgement will push Muslim women into the arms of these aforementioned councils[16]which have been known to possess patriarchal and discriminatory views[17]therefore placing women in a weak position and accordingly undermining the rule of English law by undermining the rights of individuals.
Despite recognition of such issue from Theresa May and Dominic Raab in 2016[18], there has been a lack of progress in a solution to such councils and reformation of the current law.
iii. Upholding the traditional sanctity of marriage:
It can be said that one of the reasons for a lack of development in this area is due to the significance that has been attached to the sanctity of the traditional notion of marriage. Alike the argument that has been contended in the discussion of the introduction of no-fault divorce and cohabitation reform, successive governments have proven their reluctance to undermine so called ‘traditional’ family values and the sanctity of marriage by weakening the law surrounding it.[19]Therefore, only enforcing a traditional concept of what marriage entails that is failing to align itself with a multicultural Britain.
Reform of this sector is overdue: possible options for reform.
The confirmation of the law in Akhter v Khan has provided legal clarity in respect of what the law is, however, upon exploration of the above issues, it is beyond evident that such legal framework does not work in our current society. The Muslim population in Britain is currently 3.75 million[20], nearly 6% of the total population and growing ten times quicker than other sector of our population.[21]There is a clear need for reform that accommodates this reality.
There have been many different options proposed for such reform, discussed by both scholars and the Law Commission alike. Proposed options include excluding religious principles[22], recognising all Islamic marriages as legally valid[23]or imposing civil registration requirements before a religious ceremony is carried out.[24]There are many pros and cons to such approaches.
However, this article highlights the Scottish system as a realistic example that the law of England and Wales could follow – the idea of a celebrant-based system that was once suggested in the Labour Government’s 2002 White Paper Civil Registration: Vital Chance and a method adopted in other commonwealth jurisdictions[25]. It would involve a celebrant being appointed to ensure civil or religious formalisation who would have to notify the Registrar General that they had been appointed by a particular religious group. This approach would offer a flexible approach that catered to demand. [26]
There are many different approaches that could be adopted but what is clear is the need for reform that simplifies marriage formalities in a manner that is just and fair towards all religions.
Gemma Dowling
Section Editor
Family Law
SOURCES
[1] [2020] EWCA Civ 122.
[2] Akhter v Khan[2018] EWFC 54
[3] Harriet Sherwood, ‘Islamic Faith Marriages not valid in English law, appeal court rules.’ The Guardian (London, 14 February 2020) <https://www.theguardian.com/world/2020/feb/14/islamic-faith-marriages-not-valid-in-english-law-appeal-court-rules> accessed 27 February 2020.
[4] Khan (n 1) 2
[5] Siddique Patel, ‘Akhter v Khan: the law is clarified but reform is needed.’ Lexology (19 February 2020) < https://www.lexology.com/library/detail.aspx?g=4a86a421-80ce-48b5-83b3-777370e58bff> accessed 27 February 2020
[6] Khan (n 1)
[7] Nicola Logan, ‘Recent family law case finds Islamic marriage falls within the Matrimonial Causes Act.’ (Family Law Partners, 13 August 2018) <https://www.familylawpartners.co.uk/blog/recent-family-law-case-finds-islamic-marriage-falls-within-matrimonial-causes-act/> accessed 27 February 2020.
[8] Khan (n. 2) para 15
[9] Ibid para 97
[10] Khan (n 1) para 128
[11] Prakash Shah, ‘Judging Muslims’ in Griffith Jones (eds), Islam and English Law: Rights, Responsibilities and the place of Shari’a. (Cambridge University Press, 2013)
[12] Patrick Nash, ‘Sharia in England: The Marriage Law Solution’ (2017) 6(3) Oxford Journal of Law and Religion < https://doi.org/10.1093/ojlr/rwx052> accessed 27 February 2020.
[13] Ibid
[14] Logan (n 7)
[15] M Zee, ‘Five Options for the Relationship between the State and Sharia Councils: Untangling the Debate on Sharia Councils and Women's Rights in the United Kingdom’ (2014) 16 Journal of Religion and Society < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2380066> accessed 27 February 2020.
[16] Pragna Patel, Southall Black Sisters (February 2020)
[17] Ibid
[18] Sharia Council Inquiry initiated by Theresa May; D Raab, Ministry of Justice, ‘Answer to Islam: Marriage: Written Question. Question 1647.’ (Answered 6 July 2017)
[19] Nash (n 12)
[20] Office for National Statistics, ‘Muslim Population in the UK.’ (Office for National Statistics, 2 August 2018) <https://www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/muslimpopulationintheuk> accessed 27 February 2020
[21] Nash
[22] Brian Barry, ‘Culture and Equality: An egalitarian critique of multiculturalism.’ (Wiley, 2000) 158
[23] Shah (n 11)
[24] Law Commission, Getting Married: A scoping paper (2015)
[25] Nash (n 12)
[26] Ibid
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