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Should Muslim (religious) marriages be recognised?

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Should Muslim (religious) marriages be recognised?

I am delighted to have a fellow member of Resolution’s Equality, Diversity and Inclusion Committee join me, Nazia Rashid of Anthony Gold Solicitors. She is also the Joint Deputy Chair of the Legal Affairs Committee for the Muslim Council of Britain. Views expressed here represent our own.

Nazia, what’s the current position in relation to Muslim marriages in the UK (and what do we usually mean by Muslim marriages?)?

Great question Jo and often misunderstood. I’ll try my best to keep my answer succinct!

A Muslim marriage is referred to as a nikah.  A Nikah is a contract between the bride and groom. 

It is undertaken in accordance with Islamic rites and how the actual ceremony is conducted will depend upon the specific religious personal laws adopted by the couple.

In respect of the status of a nikah under English law, care must be taken when answering this.

If a nikah has taken place abroad, and it is a monogamous marriage which is locally valid in the foreign country, the marriage will most likely be recognised here.

A polygamous, and more accurately in the Muslim community a polygynous, marriage that has taken place abroad would have to meet additional criteria before confirming whether it would be recognised by the English court or not. The MCA 1973 (as amended) provides that a polygamous marriage entered into after 31 July 1971 is void if either party to the marriage was, at the time, domiciled in England and Wales

If a nikah takes place within the English court’s jurisdiction, it is not correct to simply state that a religious only marriage of nikah (non-qualifying ceremony) would not be recognised. The status of the nikah would depend upon:

  1. what steps had taken place prior to the ceremony,
  2. where it was conducted, and
  3. who was present at the time?

 

The easiest way to explain this is to state when such a religious marriage could be registered therefore resulting in a valid marriage under English law.

In brief the present ‘marriage system’ provides for:

  1. a civil marriage;
  2. a marriage according to the rites and ceremonies of the Church of England and the Church in Wales;
  3. a marriage according to Jewish and Quaker customs; or
  4. marriage according to all other religious rites (e.g. Catholic and Muslim)
    1. in a place of worship
    2. that has been registered.

Current regulation of marriage largely focusses on the building in which the marriage takes place. This will include:

  1. a register office;
  2. approved premises;
  3. a building of the Church of England or the Church in Wales; or
  4. a registered building that has been
    1. certified as a place of worship, and
    2. registered for the purpose of religious marriage

Therefore, if you have a client who says he/she has had a nikah only marriage in a mosque, a few more questions are needed. Don’t forget, in order for the marriage to comply with the Marriage Act 1949, the couple must have given notice of the intended marriage and either a registrar or authorised person should be present at the time the ceremony took place.  

Also, the provision above applies to all faiths other than those which are specifically mentioned. This certainly is an area that is in dire need of reform – if just to make the whole process far simpler and clearer as confirmed by the Law Commission.

Would be good to hear if the above is how you viewed Muslim marriages, and what are your thoughts on belief marriages being incorporated into our marriage laws?

 

Jo: This is a great question (and thank you for explaining the law on this so clearly). I am very interested in religious marriages and the historical fight for their recognition, in particular by Quakers, Jews, Catholics and Unitarians. This is an overhang from when the influence of the Church of England dominated our laws and traditions.  I am a Unitarian.  More recently, I have been inspired by the way that Quakers and Unitarians have vigorously campaigned to be able to conduct same sex marriages.

Your question is also an enigmatic one. Your question is posed at a time and in the context where most Jewish and Christian faiths (of most denominations) are seeing a decline in both attendance and allegiance.  This is not the case for the Muslim faith which is the fastest growing faith in the UK. It seemed an anathema to me that quite simply ALL Mosques are not already registered for recognition. I also feel that a Muslim marriage is as valid as others.

In our discussions, you have helped me understand that sometimes couples enter a Nikah privately, could you explain how and why this happens?

Nazia:

Yes, that is right Jo.

There are individuals and couples who seek to have a religious only marriage whereby there is no interaction with the state.  Here, I am referring to individuals who are fully aware that the religious marriage will not be recognised under English law. 

Reasons have included:

  1. a wish to protect a former divorce settlement
  2. a wish to protect inherited family wealth
  3. a wish to protect self-made assets
  4. a wife wanting to be a ‘second religious wife’ (with its flexibility)
  5. minimise the possibility of a former violent spouse being able to trace her
  6. one party refusing to be party to a civil marriage  - without giving clear reasons
  7. the couple only wanting to satisfy their religious conscience and believing that there is no need for themselves to undergo a state process
  8. a couple who are individually resident in different countries might want to undergo a nikah ceremony in England as this is the only country they are both present in for a short period of time and for the purposes of intimacy; their religious conscience being satisfied. The couple might prefer for their state marriage/registration to be in another jurisdiction, say a home country with a lavish affair.
  9. Undergo the civil formalities in the future – for practical reasons and having a large wedding later on, once in a position financially to set up home with their religious spouse e.g. post graduation, or once it is considered to be appropriate to do so, i.e. IHT planning, agree for the ‘pooling’ of assets inc benefits under a pension, planning a family or children having been born.

Briefly, the venue for such religious marriages has included the bride’s home, a restaurant, hotel, banqueting suite, mosque (non-registered) and open spaces. In terms of the actual religious ceremony, this could be a small affair but at the same time it could be a large affair and in many Muslim communities this could be 100+guests.

The ceremony is often conducted by an Imam although it does not have to be.  Close family and friends are usually present. In terms of formalities, only those required by the parties’ religious conscience are satisfied and there are very few compared to the requirements under the Marriage Act 1949.  A written Nikah certificate is usually produced which records details of the couple, date of marriage, details of the witnesses and the agreed mahr, which should not be confused with a dowry i.e. items from the bride’s family to the groom’s family.

In light of the public discussion concerning religious marriages and the position of mainly Muslim women in religious only marriages, I do think a broader approach is required in terms of how to implement safeguards to protect vulnerable women in any cohabiting relationship which is not legally recognised as a marriage.  The discussion is far wider than just for women in religious only marriages.  Many still believe in the myth of the ‘common law marriage’ and one doesn’t have to be religious (or have any belief) to be caught up in this!

The Law Commission has now launched its public consultation in relation to wedding laws reform – and I urge people to respond. Cohabitation is an issue that requires urgent addressing at the same time alongside individuals having the choice to set up home as they wish.  English family law has in some respects moved on greatly – same sex marriages, civil partnerships, single applicants for parental orders to name some.

I believe the law must further change to allow couples greater autonomy by having a broad choice in how, where and who oversees or conducts their ceremony. The law should be capable of allowing couples to continue to undergo ‘non qualifying ceremonies of marriage’ in a manner the couple see fit so long as the couple are fully aware of the legal standing of their chosen ceremony and have the ability to formally opt out of a state recognised marriage. Such ‘non qualifying ceremonies’ will render the couple as being deemed as cohabitees which is why the law on cohabitation is also long overdue for change.

So, going back to your response, a Muslim marriage will always be valid in the eyes of those who contracted it, but some might want it to be invalid in the eyes of the English family court and if so, they should not be judged.

I’ve always welcomed your inquisitive and non-judgmental mind when discussing non-recognised marriages with me. Do you think there is merit in there being a wide debate on the use of celebrants as in Scotland and also, couples having the ability to formally opt out of, what would essentially be, financial benefits which would otherwise be available to those in a recognised marriage.

Jo: Again, thanks so much Nazia for explaining the flexibility of the Nikah and how it can be used to protect religious conscious as well as wealth.  Yes, I love the idea of having a debate about the work and recognition of celebrants. People are generally moving away from having their rites of passage in a religious setting; with funerals and child naming ceremonies being carried out by non-religious celebrants.

I also agree that cohabitation law reform is long overdue; the power for couples to opt in or out of financial arrangements akin to marriage must happen to protect the financially weaker party.  We need couples to have to think about all of this rather than assume they have protections via ‘common law marriage’ which as we both know, does NOT exist. It could be that after a certain duration their cohabitation relationship be treated akin to a marriage (e.g. Western Australia) and certain financial protections kicking in upon separation.   

As part of The Law Society Family Law Committee I too shall be commenting on the Law Commission’s consultation in relation to wedding law reform; I also urge our readers to respond.

Thanks, so much Nazia!  I look forward to seeing you at the next Resolution’s Equality, Diversity and Inclusion Committee.