When is a marriage not a marriage…?

For some, cohabitation is a pre-curser to getting married. For others, marriage is required before they can live together.

In the majority of cases it will be clear whether or not there has been a valid marriage. However, the recent case of Nasreen Akhter and Mohammed Khan who had undertaken a Nikah (an Islamic marriage ceremony) is an example of where the distinction is not quite so clear cut.

Under English law, a Nikah is not legally recognised as marriage and Shariah Councils have no legal status, no legal binding authority and no legal jurisdiction in England and Wales. It is therefore necessary to civilly register a marriage as well as undergoing an Islamic ceremony, if the marriage is to be valid.

Mr Khan and Ms Akhter undertook an Islamic ceremony in December 1998. Ms Akhter argued, and the court accepted, that she went through the Nikah with an expectation of having the required civil ceremony afterwards. However, that never happened and, whilst she wanted one, Mr Khan refused after the Nikah had taken place.

The couple remained together for many years and had three children. Ms Akhter changed her name by statutory declaration. They had lived as a married couple for all purposes.

When the relationship broke down, Ms Akhter filed a divorce petition, which Mr Khan defended on the basis that they were not legally married and they had just been living together. This had potentially very serious implications for Ms Akhter, as if their relationship were a “non-marriage” and they were just living together, she would have absolutely no financial claims against Mr Khan after a very long relationship and three children together.

The court had to decide if their Nikah was a “non-marriage” or if it was “void” because the marriage celebration had failed to comply with the legal requirements for the formation of marriage. In the case of a void marriage, it is possible to bring a claim for nullity and financial claims can be made against each other.

Thankfully for Ms Akhter, the High Court found that, in this case, the marriage was void rather just than a “non-marriage”, and she is therefore able to pursue financial claims as required. This is a particularly significant development for anyone entering into a Nikah as, until now, a Nikah has been treated as a “non-marriage”.

Although this outcome offers greater protection for couples who marry under Sharia law, it is still much better to undergo a civil ceremony (ideally before or at the same time as the Nikah) to ensure that there is a valid marriage rather than one that it void and to secure the greatest possible financial protection.

Kris Arpon