‘What do you mean, my marriage isn’t valid?’
Legal complications can arise because Nikah ceremonies are often not considered to be a valid marriage ceremony under English law.
If a Nikah marriage is not recognised under English law, then the rights offered to a husband and wife under the jurisdiction of our legal system should the marriage ever break down will not apply. Of particular concern is the fact that the majority of the 50 women interviewed for the report classed themselves as married, although only 10% were in fact considered legally married under English law.
So what is the consequence if a Muslim marriage is not recognised under English law?
The primary concern is that the English Courts will not consider that the “husband” and “wife” are legally married and instead will treat them as a cohabiting couple. In the UK the rights and protection offered to a cohabiting couple are significantly less than a married couple.
This predicament is highlighted in the Court of Appeal case of A(A Child) [2014] EWCA Civ 1577. The father in this case was a member of a wealthy ruling family in the Middle East. Whilst the mother and father had never lived together, they had engaged in a Nikah ceremony. When the “marriage” broke down, the “wife” attempted to argue that she was entitled to the same financial provision as if she had been legally married under English law. The reality of the situation was that her marriage was not legally recognised under English law and she did not enjoy the same legal rights as a wife would. As such she was only entitled to bring a claim for financial provision on behalf of her child.
Ultimately the child’s father was only required to make provision on behalf of his child, which included ongoing financial maintenance and the temporary transfer of a property in order to provide accommodation. It is likely that significantly more provision would have been awarded if the parties had conducted a ceremony which was valid under English law.
The father was also able to run the so-called ‘millionaire’s defence’, which involved the father declaring to the Court that he would be in a position to meet any award made and as such, should not be required to provide financial disclosure.
The mother argued that full financial disclosure was necessary as the size of the father’s resources were directly relevant to the child’s financial needs. The Court noted that even if it did draw adverse inferences from the lack of disclosure, the mother’s needs would still be limited to those of a mother looking after a child as she had not entered into a valid marriage.
When the Court reviewed the mother’s proposed financial needs it was observed that such needs were actually closer to those of a former wife. Appropriate reductions were made across the board. The judge emphasised the fact that the Court would need to “guard against giving the mother the same entitlement as a wife on the child’s coat tails”. The mother was also penalised in costs for attempting to secure provision as a former wife, rather than as a mother of a child.
This case highlights the disconnect between English law and a significant proportion of the our community. As matters stand many young Muslim women in England and Wales find themselves unprotected under UK law. It also highlights the extreme importance of ensuring that an Islamic marriage complies with the requirements under English law.
We have recently resolved an inheritance dispute at mediation where similar issues arose in respect of a deceased person’s estate that had been subject to a claim for financial provision.
