Judges reject bid to make Islamic marriages legally binding

Maya Oppenheim
One of the main challenges for prosecutions lies in overcoming the barriers that prevent victims from reporting their concerns about being pushed into forced marriage: Getty Images/iStockphoto

A bid to make religious marriages legally binding in the UK has been rejected by judges, dashing the hopes of campaigners who say women are left penniless with no support after the break-up of sharia unions.

Campaigners claimed the landmark judgement, handed down at the Court of Appeal on Friday, could have “profoundly discriminatory consequences” for women and upheld an antiquated system of marriage.

The Court of Appeal overturned a family court judge’s decision that a woman was entitled to apply for maintenance payments from her estranged husband despite the fact they were not legally married. The attorney general had appealed the ruling.

Nasreen Akhter had a nikah, an Islamic marriage ceremony, that led to a Muslim marriage contract between herself and Mohammed Khan. The couple were married for 18 years and have four children together.

Ms Akhter, a 47-year-old solicitor, said she was keen to have a civil marriage and presumed it was on the cards, but her husband refused. She alleges their relationship ended after he said he wanted to take another wife; they separated in 2016.

Mr Khan, a businessman who is also 47, implied he did not owe his wife anything by claiming their nearly two-decade-long relationship constituted a “non-marriage”.

However, Mr Justice Williams’ ruling at the High Court in London in July 2018 led to Ms Akhter being entitled to apply for maintenance.

“The wife’s evidence of how the husband put her under pressure saying that Islam permitted polygamy and that she was a bad Muslim and was rejecting the word of God shows a degree of emotional manipulation that is most unattractive,” he said in the judgement.

Even though no civil ceremony was held, Mr Justice Williams said, the Islamic ceremony “bore all the hallmarks” of a marriage in that it was held in public, witnessed, officiated by an imam and involved the making of promises and confirmation that they were both eligible to marry.

He also said they had been “embarking on a process”, which was intended to include a civil ceremony, and took into account the interests of their children.

But in the written judgement which the Court of Appeal handed down on Friday, a trio of judges concluded that upholding the High Court’s ruling “would gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community”.

The judgement added that it is “not difficult for parties who want to be legally married to achieve that status”.

Master of the Rolls Sir Terence Etherton, who looked at the case with two other judges, argued the nikah was a “non-qualifying” ceremony. Announcing the court’s decision, he said: “The parties were not marrying ‘under the provisions’ of English law.

“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 authorised 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.”

Religious courts make rulings which force women into remaining with their partners even when they are unhappy or rule they cannot claim money or property when unions break down, frontline service providers say.

Charles Hale QC, a senior family law barrister who represented another woman seeking a divorce following an Islamic marriage, criticised Friday’s ruling. He argued it would lead to women who only have religious marriages potentially being left with no money if their relationships broke down.

“A central theme is the vulnerability of predominantly Muslim women,” he told The Independent. “What will continue to happen is men taking advantage of vulnerable Muslim women – claiming they will have a civil marriage after a religious one but not going ahead because they know their rights will be protected and their wives will not.”

The lawyer added: “Thousands of women, usually Muslim women, believe that they lawfully marry in this country each year by undertaking a religious ceremony only. Many of them, and its usually Muslim women, do not know in fact that, no matter how many people attend, no matter how public an expression of the marital contract, that they are not in fact lawfully married in accordance with the laws of England and Wales.

“This means that many have absolutely no rights at the end of what they believe to be their ‘marriage’. No rights to assets in the husband’s sole name, and no rights to maintenance, even if, as with Ms Akhter, they were married for 18 years.”

Southall Black Sisters, a group that supports black and minority ethnic women, intervened in the case believing it to have critical significance for wider society.

Pragna Patel, the organisation’s director, said: “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.

“What we are seeing is the outsourcing of justice on family matters to unaccountable and fundamentalist-inspired community based systems of religious arbitration. This is not about recognising religious marriages, it is about the state guaranteeing equality to all before the law. “

A 2017 poll found almost all married Muslim women in the UK had had a nikah, while nearly two-thirds had not also had a civil ceremony.

In 2018, a Home Office-commissioned review into the application of sharia law reached the view that Muslims in the UK should undergo a civil marriage as well as a religious ceremony to make sure women are protected under the law.

The measure was needed to lessen “discriminatory practices” in the councils, the report said. However, it added that abolishing Sharia councils was “not viable” and they were “fulfilling a need in some Muslim communities”.​

Maryam Namazie, of campaign group One Law for All, said: “The court of appeal’s decision to deny Muslim women financial remedies by refusing to deem a Sharia marriage a void marriage is a travesty of justice.

“The court, like the government, is perfectly happy to relegate minority women to kangaroo courts and faith-based parallel legal systems in order to appease fundamentalists and manage minority communities at the expense of women’s rights. Today’s judgment will only further discrimination against minority women.”

Gita Sahgal, who works for the same group, said its research had found the lack of civil marriages in Muslim communities was being used to spread the influence of sharia ‘courts’.

“Women are trapped in a legal limbo unable to divorce, and unable to remarry,” she added. “We believe all marriages must be registered, but we do not support this judgment. The government, which has failed to act against sharia councils, is now threatening to send women back to them, by closing off this remedy.”

Campaigners have previously told The Independent British women were being pressured into polygamous relationships or left without child support when relationships break up due to a lack of protection within religious marriages.

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