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Court ruling on Islamic Nikah ceremony – first thoughts14th February 2020 Family Law
The issue of marriage validity continues to hit the headlines. In the widely-anticipated judgment in Khan v Akhter, the Court of Appeal has ruled that a couple who went through a religious-only wedding ceremony are neither validly married or parties to a void marriage.
What’s the big difference between a void marriage and no marriage at all?
There was never any question that these parties had entered into a valid marriage. However, if their marriage was void – legally flawed from the start – this would enable either party (in this case Ms Akhter) to apply for financial provision in the same way as she would if the parties were divorcing.
What actually happened?
The parties took part in an Islamic wedding ceremony or Nikah, intending to go through a civil ceremony later as both knew that the wedding ceremony would not have legal effect in the UK. However, Mr Khan was unwilling to go ahead despite requests. In the High Court, the judge took a “holistic” approach and found that what had taken place between the parties should not be dismissed as a ‘non-marriage’. Consequently, Ms Akhter would have been able to make an application to the court for financial orders in the same way as she would if the marriage had been considered valid.
It is important to note that these parties have now settled their case privately and so took no part in the appeal. However, the appeal against the first judgment was supported by the Attorney General on behalf of the government. On the opposing side, another woman in a similar position to Ms Akhter joined the proceedings as well as campaigning organisation, Southall Black Sisters.
What is the legal position of Islamic marriages without civil formalities?
If an Islamic marriage takes place in a country outside the UK, in which religious marriages are legally valid without further formality or civil registration, the courts here will generally treat the marriage as valid. In contrast, in this country, an Islamic marriage ceremony or Nikah which takes place without further formality will not give rise to a valid or a void marriage. The Court of Appeal has decided to call this a “non-qualifying” ceremony, as opposed to the potentially derogatory earlier term, “non-marriage”.
The Court of Appeal has overturned the High Court’s judgment and confirmed the legal position as set out above.
An appeal to the Supreme Court seems inevitable but that will take perhaps 12-18 months to reach a conclusion. This judgment will be disappointing for those who felt that the High Court had opened up a window of opportunity for vulnerable women in religious (but not civil) marriages to access financial provision. As the law stands, a person who has been through a non-qualifying ceremony will be in the same position as a cohabitee and have few legal rights, either upon relationship breakdown or after their partner’s death.
Alternative approaches to this very real and increasingly common issue would include public awareness campaigns to ensure individuals who are considering or have been through religious-only ceremonies in the UK are not misled into thinking they have the full range of matrimonial financial protection. There may also be calls for a change in the law to mandate the registration of religious marriages. This is highly sensitive territory and it is hoped that any reform is undertaken with open minds and careful consideration of potential unforeseen consequences.