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British court recognises Sharia/Islamic marriage as voidable in landmark divorce case (2 August 2018)

Date: 02/08/2018
Duncan Lewis, Legal News Solicitors, British court recognises Sharia/Islamic marriage as voidable in landmark divorce case

The High Court has recognised an Islamic marriage in deeming that the Wife is entitled to make an application for finances as the marriage is voidable.

A woman, who had an Islamic wedding ceremony known as a “nikah”, has been told that her marriage came under the scope of the English matrimonial laws as the marriage was void, therefore she is entitled to a decree of nullity and is able to claim financial assets.

Nasreen Akhter, a solicitor, and Mohammed Shabaz Khan, a businessman, were married through an Islamic wedding in 1998, and were married for 20 years.

Ms Akhter argued that although her marriage did not strictly meet the requirements of a UK civil marriage it was still a marriage, albeit a void one.

Mr Khan argued that the religious ceremony should not be taken into account and that it should differentiate from a civil ceremony undertaken to officially register the marriage through the English Law.

Mr Justice Williams ruled that the marriage came within the scope of the Matrimonial Causes Act 1973 due to the following:

  1. It was understood by both the husband and wife that they were embarking on a process which was intended to include a civil ceremony in which the marriage would be registered.

  2. The wife's understanding and the husband's expressed position was that the civil ceremony was to follow shortly after the Nikah ceremony.

  3. The failure to complete the marriage process was entirely down to the husband's refusal after the Nikah ceremony, to complete the marriage process by arranging the civil ceremony.

  4. The wife thereafter frequently sought to complete the marriage process by seeking to persuade the husband to undergo a civil ceremony.

  5. The nature of the ceremony which was in fact undertaken bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry.

  6. Thereafter the parties lived as a married couple for all purposes.

  7. The couple were treated as validly married when they lived temporarily in the UAE.

What can be taken from this judgment is that when considering whether or not a Nikah marriage is valid and comes within the meaning of Section 11 MCA 1973, every case should be treated as unique using a more flexible and holistic approach.

The court held that it was a void marriage and the wife was entitled to a decree of nullity, therefore allowing her to make an application for financial relief. However the ruling was said to not gone far enough as it did not recognise a Nikah to be a valid marriage but capable of being void and even then this is dependent on the actual circumstances of each case.

The decision highlighted the injustice spouses of void, voidable of non-marriages may face and may encourage calls for all such marriages to be registered in law to give legal protection and the protection of rights if the relationship breaks down.

An investigation in 2017, suggested that 61% of women surveyed had not gone through a separate civil ceremony alongside their Nikah. Many of these women may not be aware of their matrimonial rights before the English courts if they are divorced.

A report commissioned by the previous Home Secretary revealed earlier this year that 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.

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.

Mehnaz Shaikh, states, ‘I am incredibly satisfied to see that the law is finally catching up with today’s society. Many Muslim women take part in a formal Islamic marriage ceremony and consider themselves married. They only later realise their marriage is not recognised and they have no rights to finances and can even be left destitute. This judgment takes a big step towards protecting these women moving forward’.

Mehnaz Shaikh, Solicitor in the Family and Child Care department at our Croydon office has been practicing family law for over 5 years at Duncan Lewis.

She specialises in a wide range of private family law matters including, divorce; including contested proceedings, foreign marriages, service issues and tracing ex partners and finance proceedings; including asset tracing, seeking orders to deal with properties, bank accounts, shares, investments, businesses and pensions, Mehnaz is also highly experienced in property disputes, trusts of Land, cohabitation, prenuptial agreements, child arrangements including complex allegations and relocation and Islamic principles; including Talaq, Khulas, Tafreeq and claims for Mahr.

Please contact Mehnaz directly on 020 7014 7373 or via email on mehnazs@duncanlewis.com.

Duncan Lewis Islamic Law Solicitors

Our leading Islamic & Sharia Law department specialize in representing families in a wide variety of complex matters. We regularly represent parents, children through their Guardians and wider family members in Islamic Sharia Law matters under English jurisdiction, as well as in matters which concern cross-border legislation.

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