Update – A Nikah (Islamic marriage) is not valid under English law. The court of appeal has ruled in relation to the case we discussed below. You can read the appeal decision on the link below.
HER MAJESTY’S ATTORNEY GENERAL
Appellant– and –
Nasreen AKHTER (1)
Mohammad Shabaz KHAN (2)-and-
Fatima Mohammed HUSSAIN (1)
SOUTHALL BLACK SISTERS (2)
A recent court case, Akhtar vs Khan, received sensational attention in the British press. The reason? It dealt with the status of a Nikah, – a marriage entered into under Sharia Law.
The parties were Mrs Akhtar and Mr Khan who had “married” through a Nikah in 1998. Despite Mrs Akhtar seeking to register the ‘marriage’ under civil laws, Mr Khan was not so agreeable and eventually refused to go through with a civil ceremony. Mrs Khan petitioned for a divorce in 2016. Mr Khan defended the divorce on the basis that the parties had not entered into a valid marriage according to English law and that their Nikaah fell short of the requirement. Consequently, Mrs Akhtar was not entitled to seek any financial remedy from the courts for herself and the couple’s 4 children.
So, is a Nikah valid in the UK?
A Nikah is an Islamic marriage conducted under the laws of the Sharia and not in accordance with the laws of England & Wales hence, not a valid marriage. Couples in this union are generally considered to be co-habiting and therefore, do not have the same level of protection as that afforded to their married counterparts (i.e. those that undergo a civil ceremony) and more importantly, to the same financial orders.
If a Nikah however is entered into in a foreign country which practices Sharia Law or elements of it, the marriage will be legally binding in the UK in accordance with the UK recognising foreign marriages and divorces (provided the relevant conditions are met).
What happens if the Nikah (Islamic Marriage) breaks down?
In the case of the couple who only go through with a Nikah in the UK and then decide to end their “marriage”, they will have to dissolve the marriage (Talaq) through religious channels. A civil divorce under English law will not be required because the Islamic marriage is not recognised, no civil marriage ceremony having taken place.
In the case of Aktar vs Khan, Mrs Akhtar despite having only entered into a Nikaah, petitioned for a divorce claiming that her cohabitation with Mr Khan should raise a presumption of marriage or alternatively that the Nikaah should be considered a void marriage whereby the marriage in fact existed albeit having been entered into in disregard of certain requirements relating to the formation of marriage. The court did not accept the former argument but did accept the latter. Crucially what this meant for Mrs Akhtar was that she would then be entitled to the same financial remedies as a married woman who was going through a divorce.
Does the ruling in the Akhtar vs Khan case mean a Nikah is now considered valid under English law?
The simple answer is no. There were several reasons behind the Judge’s ruling including the following.
- Mrs Akhtar had regularly requested that a civil marriage ceremony take place throughout the marriage indicating her intention to validate their marriage in accordance with UK laws. Mr Khan refused not because he did not recognise the relationship as a marriage but simply because he did not wish to partake in a civil ceremony.
- Mr Khan did however use the Nikah for the purposes of living and working in the UAE and had persuaded the authorities to accept it as a valid marriage.
- The marriage was considerably long of around 20 years
- Witness evidence by both parties were crucial to the final determination, the court finding that Mrs Akhtar was more believable than Mr Khan
- Arguments were advanced for Mrs Akhtar with regards to the right to respect for private and family life in relation to the children of the marriage
- These reasons and excellent lawyering by Mrs Akhtar’s counsel convinced the court in her favour. The decision could be appealed so it is premature to assume the effect it will have on Nikah only marriages in the UK.
In conclusion then…
A Nikah by itself is not a valid marriage unless it is followed by a civil ceremony. This case however highlights the flexibility available in interpreting certain matrimonial laws which could mean that we see more women in the same position coming forward to seek an English divorce for an Islamic marriage. Each case is decided upon its own facts and Akhtar v Khan should not be used as a precedent but rather as guidance on exploring whether other such claims can be valid in the same way. If you would like to discuss a similar matter with a family law solicitor, please contact one of our matrimonial solicitors for further advice.
Other reading
A report titled “Equal and Free? 50 Muslim Women’s Experiences of Marriage in Britain Today” by Aurat: Supporting Women, detailed the issues Muslim women faced when their marriage was dissolved and they hadn’t gone through a civil marriage ceremony.
