General Attorney Appeals Landmark Case Regarding Islamic Marriages
This month saw Attorney General, Geoffrey Cox, intervene in a case whereby a family court judge had decided a woman in a faith marriage, was entitled to apply for maintenance payment after a separation, despite the fact the marriage was not legal.
Nasreen Akhter and Mohammed Shabaz Khan had a Nikah, an Islamic wedding ceremony, in front of 150 guests in 1998, but in 2016 when Akhter petitioned for divorce, Khan attempted to block the petition stating that it was not a marriage under English law.
The case was to determine whether the ceremony amounted to a non-marriage or a void one.
A non-marriage is one whereby the legal process to form the marriage has been fundamentally defective. If a marriage is to be found a non-marriage, the parties are considered cohabitants and there is no financial responsibility to each other.
A void marriage is one whereby the marriage process did not follow some of the legal formalities. If void, the marriage is annulled but each party has a financial responsibility to each other.
Mrs Akhter, a solicitor, accepted that the almost 20-year marriage had not been formalised with a civil ceremony, however, for this reason, it should be classed as a void marriage rather than a non-marriage.
It had been agreed between Akhter and Khan before the Nikah that soon after a civil ceremony, formalising the marriage for English Law, would take place.
However, Khan had refused various times throughout the marriage when requested by Akhter.
Williams J, who heard the case, ruled that the marriage was in fact void and Akhter was entitled to a decree of nullity and a financial claim could be made:
“At the point when the Nikah ceremony was undertaken it was the parties’ intention and the expectation of the close family that it was the first stage in a process that would have included the civil ceremony and the Walima. I’m also satisfied that the question of the civil ceremony was returned to at various stages over the 18 years that passed subsequently.”
Williams J concluded that the marriage fell within the Matrimonial Causes Act 1973 as it had been:
“entered into in disregard of certain requirements as to the formation of marriage.”
The landmark ruling gave some hope to the many women who currently have no protection under the Matrimonial Causes Act as their marriages are not legally recognised. This means that a financially weaker spouse is not afforded any financial protection in the event of a separation.
It is estimated that 2 in every 3 Islamic marriages are not formally recognised in England.
Following the ruling, Mr Cox asked the Court of Appeal to overturn the ruling, which if happens, will be a blow to women in Islamic marriages that could now be seen as void instead of a non-marriage.
Speaking to The Independent, Pragna Patel from Southall Black Sisters, a women’s rights group said:
“We are absolutely flabbergasted and staggered that the government has stepped in. We are at a loss as to why the government feels it needs to intervene in a just judgement. The first court case judge came to the right conclusion in finding a remedy for a woman in her situation.
“When women go to sharia courts or religious ‘courts’, they often make rulings to the detriment of women and try and force women to stay in marriages. These institutions are misogynistic, patriarchal and anti-democratic. These institutions are more and more governing women’s rights. If the law goes against us, it will lock women out of the criminal justice system.”
Vivienne Hayes, Chief Executive of the Women’s Resource Centre backed campaigners, commented:
“The law and human rights for all women must be honoured and our society should ensure all citizens enjoy the protections of our laws. Religion should not become a barrier to justice.”
The judges in the appeal have heard the arguments but it is expected to take a few months before any decision is made.