Muslim marriage (non) recognition: implications and possible solutions

Abstract

Differences between traditional Muslim marriage practice and the statutory formalities required for entry into a legally recognised marriage in England and Wales have resulted in serious question-marks hanging over the legal status of a seemingly significant proportion of Muslim marriages. This article places the spotlight on the vulnerability of spouses who remain unaware of the lack of legal status which may attach to their marriage or who may have been misled by their spouse as to the latter’s intention to obtain legal recognition for the marriage. The article first considers the statutory formalities required under English law for entry into a legally recognised marriage before drawing on the most up-to-date empirical research to highlight the apparently widespread non-compliance with the formalities within the Muslim community. The article then reflects on the various practical implications which may arise for parties to an unrecognised Muslim marriage before considering how the situation may be ameliorated.

Keywords:

• Muslim marriage
• Islamic marriage
• non-existent marriage
• Marriage Act
• nikah ceremony

Acknowledgements

The authors gratefully acknowledge the helpful comments of Mavis Maclean, University of Oxford, and the anonymous reviewers for their feedback in relation to this article.

Notes

1. Discussed below.

2. Note all references to the ‘English’ law refer to the law of England and Wales.

3. The Registrar General may register a building certified as a place of worship, for the solemnisation of marriages. See sections 41 to 44 of the Marriage Act 1949 (as amended).

4. See section 44(2) of the Marriage Act 1949 (as amended). Note, the marriage may be in any form, provided that at some point in the ceremony, a declaration is made similar to that undertaken in a civil ceremony, see sections 44(1) and 44(3). Two witnesses must also be present.

5. For an overview of the history of the formalities required for marriage, including an overview of the Clandestine Marriages Act 1753 (Lord Hardwicke’s Act) see, Probert, (2004).

6. The marriage agreement must state the mahr or dowry, discussed below, the signatures of the participants and witnesses, and any other terms agreed upon by the parties. It does not have to be in writing.

7. This distinction can have serious implications, see below. One of the earliest decisions attributing this status to a Muslim marriage was R v Bham [1966] 1 QB 159. Subsequent case law on the point of non-marriage include Gereis v Yagoub [1997] 1 FLR 854 which emphasised the importance of the appearance of the ceremony. As the ceremony in question did bear the hallmarks of an ‘ordinary Christian marriage’, the marriage was held to be void. In A-M v A-M (Divorce Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, a Muslim marriage ceremony was again not considered sufficient for the purposes of creating a legal marriage. However, the court was able to rely on the presumption of marriage in the circumstances.

8. Hudson v Lee (Status of Non-Marriage)[2009] EWCA Civ 1442.

9. Hudson v Lee (Status of Non-Marriage)[2009] EWCA Civ 1442 at [78]. This was stated to be a non-exhaustive list.

10. Hudson v Lee (Status of Non-Marriage)[2009] EWCA Civ 1442 at [77].

11. See Al-Saedy v Musawi (Presumption of Marriage) [2010] EWHC 3293 (Fam); El Gamal v Al-Maktoum [2012] 2 FLR 387; Dukali v Lamani (Attorney-General Intervening) [2012] EWHC 1748 (Fam); Sharbatly v Shagroon [2012] EWCA Civ 1507. However, see also MA v JA and the Attorney General [2012] EWHC 2219 (Fam). For academic commentary, see Gaffney-Rhys’ ‘Am I married? Three Recent Case Studies on the Effect of Non-Compliant Marriage Ceremonies’ (2013) IFL 58.

12. He cites El Gamal v Al-Maktoum [2012] 2 FLR 387 and MA v JA and the Attorney General [2012] EWHC 2219 (Fam) in support of this claim.

13. Where one of the formalities is met with the other missing, the outcome may vary, see below. Note also, adding to the confusion, if a couple marry in a religious ceremony outside of the jurisdiction, in a form recognised by the law of that country (lex loci celebrationis) and each party has the capacity to marry, the marriage will be recognised under the law of England and Wales.

14. Rehana Parveen, PhD candidate at the University of Birmingham, has recently carried our research in this area as yet unpublished. Of 100 Sharia council case files she has investigated, approximately 29% of marriages included were unregistered, nikah-only, marriages.

15. Vishal Vora, PhD candidate at SOAS, reported the findings of his empirical research at the Muslim Marriage Conundrum Symposium held at the IALS, London, 9 May 2015.

16. Interestingly, in AAA v ASH [2009] EWHC 636 (Fam) para 48, the court appeared to infer knowledge of the legal status of a Muslim marriage to a husband in light of his professional status.

17. R v M [2011] EWHC 2132 (Fam) at [17].

18. Pursuant to the Matrimonial Causes Act 1973, the courts are afforded a wide discretion to redistribute assets between spouses on divorce and make financial provision for the financially weaker party.

19. Note children, if present, may be supported through Schedule 1 of the Children Act 1989.

20. In several jurisdictions legislative schemes have been enacted to regulate the financial consequences at the breakdown of cohabitant relationships, see among others Australia, Canada, Scotland and Ireland.

21. Vishal Vora, PhD candidate at SOAS, reported the findings of his empirical research at the Muslim Marriage Conundrum Symposium held at the IALS, London, 9 May 2015. Half of the interviewees in his study (5 out of 10) recorded that the family home was purchased and transferred into the husband’s sole name notwithstanding that the wife contributed sometimes all of the deposit money. Such factual circumstances may generate a beneficial interest in the property under the common intention constructive trust.

22. [2009] EWCA Civ 1205.

23. [2009] EWCA Civ 1205 at [11].

24. [2011] UKSC 53.

25. [1990] UKHL 14.

26. Even where it is a monetary sum, inflation may render the mahr of limited value at the point of relationship breakdown.

27. [2000] 1 FLR 8.

28. As explain in AAA v ASH [2009] EWHC 636 (Fam) at [70], this presumption can arise ‘after cohabitation for a significant period, a marriage ceremony, and evidence that the parties and others regarded them as man and wife’.

29. Nor will they be considered ‘next of kin’.

30. Where a deceased is survived by a spouse and no children, the spouse takes the entire estate. Where a deceased is survived by a spouse and children, the surviving spouse is entitled to a statutory legacy, currently valued at £250,000, in addition to a half share in the remainder of the estate. See Al-Midani v Al-Midani [1999] 1 Lloyd’s Rep 923 where the Islamic Sharia Council of London had ordered that a female beneficiary was entitled to only half the share of the male beneficiary to an estate under the rules of Sharia law.

31. See section 1(1A) or 1(1)(e) of the 1975 Act.

32. The challenges noted above in relation to pursuing a civil claim in equity or in contract law, such as stress and doubts over the State legal system, may also apply.

33. R v M [2011] EWHC 2132 (Fam) per Parker J at [17].

34. [2009] EWHC 636 (Fam).

35. Although an unmarried father may acquire parental responsibility under section 4 of the Children Act 1989 or pursuant to section 111 of the Adoption and Children Act 2002, the father here had not followed the required procedures for his actual legal status.

36. AAA v ASH [2009] EWHC 636 (Fam) at [32]. Neither did the father have inchoate rights of custody, see [84]–[99].

37. See Vishal Vora, PhD candidate at SOAS, reported the findings of his empirical research at the Muslim Marriage Conundrum Symposium held at the IALS, London, 9 May 2015. Such reform was also suggested by a number of delegates at the SLSA Annual Conference 2015. As discussed below, although such reform would certainly be welcome, it arguably ought to feed into more direct initiatives targeted at better resolving the issues.

38. See Read, ‘Resolution International Committee: Non- recognition of Islamic marriages in England and Wales’ (2012) IFL 452, 454.

39. See above.

40. See, for example, Retrieved July 27, 2015, from <http://www.mwnuk.co.uk/Information_and_Advice_on_Muslim_Marriages_9_factsheets.php; http://muslimmarriagecontract.org>

41. Retrieved June 3, 2015, from  <http://www.muslimparliament.org.uk/release.htm>

42. The Explanatory Notes opened stating: ‘For a Muslim marriage to be valid under the laws of England and Wales the marriage must be solemnised either at a mosque registered for the solemnisation of marriages or a civil wedding at a registry office must precede the nikah (Muslim marriage).’ Retrieved June 3, 2015, from <http://www.muslimparliament.org.uk/Documentation/Muslim%20Marriage%20Contract.pdf>. This sentence was repeated once again beneath the signatures of the parties, with a large box included on the certificate for the inclusion of the particulars of the civil marriage, again highlighting its importance. Note, a civil wedding could equally take place after the religious ceremony.

43. ONS, Area of occurrence, type of ceremony and previous marital status (2011). This shows a slight increase from figures published for 2009 and 2010 which showed 899 mosques certified as places of worship, with 198 registered for marriage. Retrieved June 4, 2015, from www.ons.co.uk.

44. It was also encouraged by the Muslim Parliament, see ‘Muslim Parliament proposes registration of Mosques and Marriages’ Retrieved June 3, 2015, from <www.muslimparliament.org.uk/registration.htm>

45. AM v AM [2001] 2 FLR 6, Al-Saedy v Musawi [2010] EWHC 3293, El Gamal v Al-Maktoum [2012] 2 FLR 387; Sharbatly v Shagroom [2012] EWCA Civ 1507.

46. Although a mosque may be certified as a place of worship, and thus already, so-to-speak, be ‘state-sanctioned’, it appears such certification does not provoke the same suspicion or distrust among some members of the community as registration for the solemnisation of marriage. In light of the civil implications of registered marriage, in particular, the state’s involvement in the mosque may be viewed as much more profound than would be the case if it was only certified as a place of worship. This may make it less attractive for all religious purposes. Where some members of the community are liable to view such registration in this way, mosque committees may be less likely to seek registration for the solemnisation of marriage thus impacting on the community as a whole.

47. Retrieved June 1, 2015, from  <http://lawcommission.justice.gov.uk/areas/marriage-law.htm>. The findings are due to be published by the end of 2015. See also, House of Commons: Written Statement (HCWS152) 18 December 2014.

48. See below.

49. Although such schemes are applied in secular continental jurisdictions such as France and Germany, the relationship between church and state in England and Wales, albeit perhaps weakening, has been traditionally been much stronger, particularly vis-à-vis marriage regulation.

50. If the nikah was automatically recognised under the law of England and Wales, these practices could become criminalised, as opposed to the current position where an imam can conduct such a ceremony without it being legally valid.

51. Note the fear that recognising Sharia law (or practices) could constitute the legitimisation of the perceived gender discrimination inherent in the religion. See for example the debate which provoked the withdrawal by the Law Society of England and Wales of its practice note for members in drafting Sharia-compliant wills Retrieved August 27, 2015, from http://www.lawsociety.org.uk/news/press-releases/law-society-withdraws-sharia-succession-principles-practice-note/

52. The law in this regard appears to be in some flux, see Hodkin v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77.

53. Marriage (Scotland) Act 1977 ss.8(1)(ii) and 9(1)(b) as amended by section 12(2)(a)(ii) of the Marriage and Civil Partnership Act 2014. In this way, difficulties surrounding what constitutes a ‘religious body’ are overcome.

54. Note comments in Saleh v Saleh [1987] SLT 633 suggest that section 23A could save a marriage even if the person who conducted the ceremony was not an approved celebrant.

55. Thus polygamous religious marriages are still possible.

56. If convicted, giving rise to a maximum sentence of two year imprisonment and, or a fine under s.24(1)(i) and (ii).

57. This means that the information provided by mosques in Scotland is arguably likely to be better than that in England and Wales. For example, the website of the Glasgow Central Mosque makes it clear that that a nikah conducted by their imams must also be a binding religious marriage under Scots law. Retrieved June 4, 2015, from <https://www.centralmosque.co.uk/marriage>. Registration would also be completed by the imam. However, if an unregistered imam fails to warn a couple that they are not entering a legally binding marriage, although he may be sanctioned, as noted, the couple’s marriage will remain unregistered. Nonetheless, the couple may be regarded as ‘cohabitants’ pursuant to the Family Law (Scotland) Act 2006 and benefit from provisions thereunder, for example, on relationship breakdown.

58. A continental approach akin to that described above would eliminate this possibility however, as noted, such reform is unlikely to be introduced.

59. Note, the failure of the legislature in England and Wales to enact cohabitation legislation on relationship breakdown is in marked contrast to many other jurisdictions. In British Columbia, Canada, the Family Law Act 2011 recently extended its detailed property division scheme for marital spouses to common law spouses. Section 3 defines a spouse as a person who has lived with another person in a marriage-like relationship, for a continuous period of at least two years.

60. See above also for the low level of polygamy recorded in England and Wales.

61. See the Marriage Act 1961.

62. This is dealt with at a provincial level, see for example the Marriage Act 1996 in British Columbia.