Ironic as it may seem, Valentine’s Day of 2020 saw the Court of Appeal, the highest court within the Senior Courts of England and Wales, strike what some are calling a major blow to how Islamic marriages (Nikahs) are viewed under English law.
The 14th February 2020 Court of Appeal ruling overturned the Family Court’s 2018 ruling, which stated that a Nikah should be evaluated holistically to determine whether it is a valid marriage under English Law. Ultimately, the Family Court allowed the ‘marriage’ stemming from the Nikah, to be deemed as a void marriage rather than a non-marriage. What’s the difference? Why should we care? We will further explore below.
Background – 2018 Akhter Case
In 1998 an Imam (Islamic religious leader) conducted a Nikah for a couple at a London restaurant. Both parties were fully aware that this ceremony fell short of qualifying as a valid English law marriage as stipulated in the Marriage Act 1949. Despite intending to later have a validating civil ceremony, the couple never did, instead cohabiting and raising four children.
The first instance 2018 court hearing saw the court decide that one had to take “a holistic view of a process rather than a single ceremony” when determining when a relationship falls within English law’s scope of a marriage. According to Williams J, this was justified by the need to take a “more flexible” approach, “in particular to reflect the Article 8 rights of the parties and the children”.
The judge considered a multitude of factors to determine how the ‘marriage’ should be viewed under English law.
Some of the factors considered by William J were the following:
- The parties agreed that they wanted to marry each other;
- The parties had been embarking on a process which was intended to include a civil ceremony, which would have created a valid marriage;
- The Nikah ceremony bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry.
In the light of all those matters, the Judge concluded that the marriage fell within the scope of section 11 of the 1973 Act as a marriage entered in disregard of certain requirements as to the formation of a marriage. Williams J concluded that the marriage was therefore a void marriage.
The crucial question at the heart of the appeal was whether the ceremony in the London restaurant, which all agreed did not comply with English marriage law requirements, created a ‘non-marriage’ or a ‘void marriage’.
More than a case of semantics, a void marriage entitles a party to the marriage to financial claims for marital assets. For instance, a share of the proceeds from selling the former marital home. So, it matters hugely to the parties concerned whether or not the marriage was a void marriage or a non-marriage.
The Attorney General brought the appeal, arguing that the restaurant ceremony fell short of even creating a void marriage, therefore no right to apply for financial claims was available.
The Court of Appeal decided that the 1998 Nikah ceremony did not create a void marriage because the ceremony was not performed in a registered building. Additionally, no marriage certificates were issued, no registrar or authorised person was present and further that the parties knew their ceremony was not legally valid under English law.
The Court of Appeal was clear that it made no sense to deem the intended civil ceremony as having taken place when in reality, it never happened. This might lead to a party being deemed as married even if they change their mind in the middle of the process where there were formalising the marriage.
The Court of Appeal concluded that, in this case, no marriage ceremony took place that allows the granting of a decree of .
Who will this affect?
It has already been long established that there are some ‘marriage’ ceremonies that simply won’t create even a void marriage.
However, there have been of late mounting concerns that this ruling will force an increasing number of vulnerable divorced women to turn to Sharia courts which may offer less protection and fewer delays.
The reality appears to be that the barriers to creating a valid marriage under English law stemming from a Nikah are not insurmountable.
Back in February 2018, then Home Secretary Theresa May, published an independent review into the application of Sharia law in England and Wales. The review emphasised that Muslims in the UK should undertake civil marriages in addition to a Nikah to ensure their marriage is recognised under English law. In fact they recommended that Muslim couples be prevented from entering into a Nikah in this country unless they have (before or at the same time) entered into a civil marriage here. Failure to comply would be met by financial penalties. This might drive these ceremonies underground and does seem draconian; however, this change would simply bring Islamic marriages in line with how the law treats Christian and Jewish marriages.
It may be that if this amendment was introduced and Nikahs were linked to civil ceremonies, a greater number of Muslim divorcees will have the full protection of the right to a civil divorce.
 R. v Bham (Usuf Arif)  1 QB 159,  7 WLUK 25