At the end of 2015 I attended the 'Register Our Marriage’ road show organised by Aina Khan, Head of the Islamic Department at Duncan Lewis Solicitors.
The Register Our Marriage Campaign established by Khan in 2014, calls for a change to the Marriage Act 1949 to ensure that all religious marriages are registered and encourages Muslims to register their marriages.
The Marriage Act 1949 requires all religious faiths (other than the Church of England, Jews and Quakers) to register their premises for the purpose of marriages. In order to form a legally valid marriage, the parties must give notice to the superintendent registrar and obtain a certificate authorising them to marry.
The ceremony must take place in a registered religious building (or alternatively the register office or approved premises) in the presence of a registrar or a person authorised to solemnise marriages, which is usually a religious leader or minister. The marriage must then be registered. Most faiths comply with the formal requirements established by the Marriage Act 1949, but Muslims do not. According to Aina Khan more than 80% of Mosques are not registered for the purpose of solemnising marriages and over 80% of marriages involving young British Muslims are not registered under the civil law.
An Islamic marriage contract, or nikah, does not need to take place in a Mosque and does not need to be celebrated by an Imam to be valid under Islamic law. Young Muslim couples frequently enter into a nikah without complying with the formalities required under the Marriage Act 1949. A nikah marriage celebrated in an unregistered Mosque or the family home is regarded as a non-marriage or non-existent marriage under English law. This means that the couple are considered married within their religious community, but not in the eyes of English law and if they separate, a claim for financial orders cannot be made to the English courts, because the couple are treated as cohabitants rather than spouses. Women and children often suffer hardship when a religious marriage breaks down because family property is not always distributed fairly and sufficient maintenance for the ‘wife’ is not always provided. A mother can, of course, claim child maintenance under the Child Support Act 1991, but this does not provide for her own personal needs.
According to Aina Khan, the top three reasons for not registering a marriage under English civil law are: first, it is erroneously assumed that the Islamic marriage is valid under English law. This is understandable given that a nikah marriage celebrated overseas will be recognised by the law in England and Wales, but a nikah marriage contracted here will not. Secondly, one of the parties (usually, but not always, the man) is seeking to avoid the application of English divorce law if the couple separate. It is often assumed that the English civil courts will divide family property equally between husband and wife, but this is not always the case. Thirdly, many Muslim couples feel that the Islamic marriage is all that matters: it is not therefore necessary to enter a marriage that is recognised by the law of England and Wales. However, many women discover that a civil marriage is in fact essential to ensure fairness and justice if the relationship comes to an end.
As Aina Khan states: ‘You register your car – so register your marriage!’
About the author: Dr. Ruth Gaffney-Rhys is a Reader in Law, specialising in Family Law. She is the co-director of the Centre for Gender Studies in Wales.