 The Court of Appeal, the second-highest court in England and Wales after the Supreme Court, has ruled that the Islamic marriage contract, known as nikah in Arabic, is not valid under English law. Pictured: The Royal Courts of Justice in London, seat of the Court of Appeal. (Image source: Anthony M/Wikimedia Commons) |
The Court of Appeal, the second-highest court in England and Wales after the Supreme Court, has ruled that the Islamic marriage contract, known as nikah in Arabic, is not valid under English law.
The landmark ruling has far-reaching implications. On the one hand, the decision strikes a blow against efforts to enshrine this aspect of Sharia law into the British legal system. On the other hand, it leaves potentially thousands of Muslim women in Britain without legal recourse in the case of divorce.
The case involves an estranged couple, Nasreen Akhter and Mohammed Shabaz Khan, both of Pakistani heritage, who took part in a nikah ceremony officiated by an imam in front of 150 guests at a restaurant in London in December 1998.
In November 2016, Akhter, a 48-year-old attorney, filed for a divorce, allegedly because Khan wanted to take a second wife. Khan, a 48-year-old property developer, tried to block Akhter's divorce application on the basis that they were not legally married under English law. Khan said that they were married "under Sharia law only" and sued to prevent Akhtar from claiming money or property from him in the same way a legally married spouse could.
Akhter said that the couple, who have four children, intended to follow the nikah with a civil marriage ceremony that would be compliant with English law. No civil ceremony ever took place, however, because, according to Akhter, Khan refused.
On July 31, 2018, the London-based Family Division of the High Court ruled that the nikah fell within the scope of the Matrimonial Causes Act 1973, which establishes three categories of marriage: valid, void and non-marriage. Valid marriages may be ended by a decree of divorce; void marriages may be ended by a decree of nullity; non-marriages cannot be legally ended because legally the marriage never existed.
The high court determined that the Akhter-Khan marriage was a "void marriage" because it had been "entered into in disregard of certain requirements as to the formation of marriage." It ruled that Akhtar was therefore entitled to a "decree of nullity of marriage."
The Attorney General, on behalf of the British government, filed an appeal on the basis that it was wrong to recognize the marriage as being "void" rather than a "non-marriage."
On February 14, 2020, the London-based Court of Appeals overturned the High Court's decision and ruled that nikah marriages are "non-marriages" within the scope of English law. In its ruling, the court explained:
"The Court of Appeal finds that the December 1998 nikah ceremony did not create a void marriage because it was a non-qualifying ceremony. The parties were not marrying 'under the provisions' of English law (Part II of the Marriage Act 1949). The ceremony was not performed in a registered building. Moreover, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorized person was present at the ceremony. Further, the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony that did comply with the relevant requirements in order to be validly married. The determination of whether a marriage is void or not cannot, in the Court's view, be dependent on future events, such as the intention to undertake another ceremony or whether there are children.
"There is no justification for treating the civil ceremony, which the parties intended to undertake, as having in fact taken place, when it never did. This might result in a party being married even if they change their mind part way through the process of formalizing the marriage. That would be inconsistent with the abolition of the right to sue for breach of an agreement to marry by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1970. The parties' intentions cannot change what would otherwise be a non-qualifying ceremony into one which is within the scope of the Marriage Act 1949."
The Court of Appeals added: "It is not difficult for parties who want to be legally married to achieve that status."
The ruling, which Akhter presumably will appeal at the Supreme Court, has been greeted with outrage by activists who argue that thousands of Muslim women in Britain now have no legal rights when it comes to divorce.
In a press release, Southall Black Sisters, an advocacy group for South Asian women, said:
"We sought to inform the Court of Appeal that many minority women, especially Muslim women, are deceived or coerced by abusive husbands into only having a religious marriage, which deprives them of their financial rights when the marriage breaks down....
"The Court found that 'it is not difficult for parties who want to be legally married to achieve that status.' But this disregards the accounts of many minority women, who have great difficulty in obtaining that status in the context of domestic abuse, patriarchal family dynamics and considerable power imbalances....
"Today's judgment will force Muslim and other women to turn to Sharia 'courts' that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system."
In November 2017, a survey carried out for a Channel 4 documentary — The Truth About Muslim Marriage — found that nearly all married Muslim women in Britain have had a nikah, but more than 60% had not gone through a separate civil ceremony which would make the marriage legal under British law.
In February 2018, an independent review of the application of Sharia law in England and Wales, commissioned by Theresa May in May 2016 when she was home secretary, recommended changes to the Marriage Act 1949 and the Matrimonial Causes Act 1973 that would require Muslims to conduct civil marriages before or at the same time as the nikah ceremony. This would bring Islamic marriage in line with Christian and Jewish marriage in the eyes of British law. The report stated:
"By linking Islamic marriage to civil marriage, it ensures that a greater number of women will have the full protection afforded to them in family law and the right to a civil divorce, lessening the need to attend and simplifying the decision process of Sharia councils."
The review added:
"The panel's opinion is that the evidence shows that cultural change is required within Muslim communities so that communities acknowledge women's rights in civil law, especially in areas of marriage and divorce. Awareness campaigns, educational programs and other similar measures should be put in place to educate and inform women of their rights and responsibilities, including the need to highlight the legal protection civilly registered marriages provide."
Finally, the panel recommended that the government create a new agency to regulate Sharia courts and thus legitimize them:
"That body would design a code of practice for Sharia councils to accept and implement. There would, of course, be a one-off cost to the government of establishing this body but subsequently the system would be self-regulatory."
In March 2018, then Secretary of State Sajid Javid, in a Green Paper titled, "Integrated Communities Strategy," responded:
"We welcome the independent review into the application of Sharia law in England and Wales. Couples from faith communities have long been able to enter a legally recognized marriage through a religious ceremony if the requirements of the law are met.
"However, we share the concern raised in the review that some couples may marry in a way that does not give them the legal protections available to others in a civilly registered marriage. We are also concerned by reports of women being discriminated against and treated unfairly by some religious councils.
"The government is supportive in principle of the requirement that civil marriages are conducted before or at the same time as religious ceremonies. Therefore, the government will explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings.
"The government considers that the review's proposal to create a state-facilitated or endorsed regulation scheme for Sharia councils would confer upon them legitimacy as alternative forms of dispute resolution. The government does not consider there to be a role for the state to act in this way."
In January 2019, the Council of Europe (COE), the continent's leading human rights organization, raised concerns about the role of Sharia courts in family, inheritance and commercial law in Britain. It called for the government to remove obstacles that stop Muslim women from accessing justice:
"Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital issues and Islamic divorce proceedings but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases."
The COE also set a deadline of June 2020 for the UK to report back on reviewing the Marriage Act, which would make it a legal requirement for Muslim couples to undergo civil marriages — which is currently required for Christian and Jewish marriages.
A Home Office spokesperson responded to the COE resolution:
"Sharia law does not form any part of the law in England and Wales. Regardless of religious belief, we are all equal before the law. Where Sharia councils exist, they must abide by the law.
"Laws are in place to protect the rights of women and prevent discrimination, and we will work with the appropriate authorities to ensure these laws are being enforced fully and effectively."
As of now, neither the British government, nor the British Parliament has introduced legislation that would require Muslims to conduct civil marriages before or at the same time as the nikah ceremony.
The Court of Appeal's ruling does, however, put a brake on the further encroachment of Sharia law into the British legal system. The court's decision effectively reaffirms the principle that immigrants who settle in Britain must conform to British law, rather than the other way around.
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute.
Richard Evans