02 October 2013
Islamic Marriage, validity and the law of the land - Discussing the implications of religious marriage and how to protect your rights
I am often approached by British Muslims, often women, seeking family law advice in relation to bringing a legal end to their marriage on the basis that it has irretrievably broken down.
Surprisingly they, (like their friends and family) only participated in a Niqah (Islamic Marriage) ceremony, which they believed to be sufficient in being recognised, in law, as a common law spouse. No civil registration of their marriage took place, as they did not believe the law required them to remarry to obtain an English marriage certificate.
To my clients’ disappointment, they soon realise that they are not, contrary to what they believe, legally married within England and Wales. A decree of Divorce cannot be obtained from the English family courts and a financial settlement resulting from a formal separation is again, out of the question (unless expensive TLATA and or civil proceedings are filed).
In A-M v A-M (Decree: Jurisdiction: Validity of Marriage)  2 FLR 6, Hughes J (as he then was) had to determine whether the parties were validly married so as to enable the wife to bring proceedings for divorce or nullity. One of the ceremonies which had taken place in that case was a ceremony of marriage in a flat in London which had been conducted by an Islamic Mufti from a London Mosque. The ceremony was intended to be, and was, "a formal marriage by Islamic process". Hughes J, applying R v Bham, found that the ceremony did not create a marriage (either valid or void) recognised by English law on the basis that the ceremony did not purport to be effected according to the Marriage Acts.
Islamic (Sharia) law is rich in tradition and stems from the fundaments of the religion in promoting equality and fairness. As the fasting growing religion, millions of Niqahs (Islamic marriages) are performed daily, between two consenting adults who wish to enter into a matrimonial bond. There is no dispute as to whether this is a form of marriage, in fact it has been performed by Muslims since the birth of the religion. The problem lies with compliance with the law of the land, its precedence and protecting your rights.
There is a simple solution, a civil registration.
By Family Law Solicitor Kaleel Anwar