Islam is the largest minority religion in the United Kingdom. It’s believed that approximately 4 million people in the UK (roughly 6% of the population) define themselves as Muslim, and as such would follow certain cultural or religious rituals to honour this. Given the growing Islamic population in England and Wales, the number of Islamic marriages continues to rise with it – but what impact does this have on matrimonial finance proceedings where a Muslim couple have separated?
Please note that this article deals only with Islamic marriages. Some of the principles may still be beneficial for those attempting to understand when marriages from other cultures are valid in the UK.
Defining ‘Marriage’ in England and Wales
Before going into Islamic separation, we must first consider what constitutes a legal marriage in England and Wales. Marriages in England and Wales are governed by the Marriage Act 1949, which details the legal requirements that must be satisfied for a recognised marriage to exist. For a marriage to be considered valid, it has to have been registered – this generally requires notice to the superintendent registrar of the local area – then be followed by a civil or religious ceremony within 12 months of notification.
There are some religious ceremonies where the parties to the marriage need not give notice – Church of England and Church of Wales, Judaism and Quakers. This is because ministers, rabbis and priests are authorised to carry out legally valid marriage ceremonies.
Imams , who carry out Islamic marriage ceremonies and lead prayer sessions at the mosque, do not automatically have this authorisation, and would instead need to become registered to carry out legally valid civil marriage ceremonies. Therefore, a Nikah (Muslim marriage ceremony) is usually not in itself legally recognised. If an Imam does become registered, then a Nikah that they have carried out can be supplemented almost immediately by the civil ceremony – though it appears many Imams do not register.
It should be noted that if you have a Nikah in a Muslim country where they are recognised as legal marriages and you then move to England or Wales, your marriage will be recognised at valid. This is because the UK recognises foreign marriages so long as they have taken place in accordance with the laws governing the country in which it occurred. This is (less commonly) known as the lex loci celebrationis principle – i.e. the law of the place of celebration.
If a couple only have a Nikah in England or Wales and then separate, they are unable to seek financial relief by way of matrimonial finance proceedings and therefore fall flat at the first hurdle. However, many Muslims in the UK get around this by having the Nikah and following it up with a civil ceremony – this would entitle them to seek legal recourse if they subsequently separated.
Nikahs – What impact do they have on any matrimonial finance proceedings?
In Islamic marriages, it is very common practice for the groom to provide a ‘Mahr’, which is a cultural gift, often monetary, which is paid directly to the bride. It is also common practice for a Mahr to have a condition that the husband will give the wife money if they separate – albeit only if it is the husband’s choice to leave the wife.
Given that the Nikah is not in and of itself recognised as valid unless the parties supplement their marriage with a civil ceremony, what bearing does the Mahr have on matrimonial finance proceedings?
Surprisingly, there is not a myriad of caselaw in this area. Under sharia law the Mahr has considerable weight and the only things which may alter how much of the Mahr is paid are whether the marriage was consummated and who pronounced the divorce. In England and Wales, however, this is not strictly the case.
Shanaz v Rizwan [1965] 1 QB 390
The parties married in India in 1955 and the written terms of the Mahr were included within their Nikah contract. The husband divorced the wife in 1959 and the wife brought a claim in England where they both resided.
It was established that the wife could make a claim for breach of contact as the husband refused to pay the agreed sum set out in their marriage contract. The wife sought her financial remedy in the civil courts and was awarded the outstanding £1,400 from the Mahr. The husband appealed this decision, but it was upheld on the ground that it was based on a recognised contractual obligation which was enforceable under Islamic law by ordinary civil action and that there was no reason why it could not be afforded in England.
Uddin v Choudhury [2009] EWCA Civ 1205
The parties had their Nikah in August 2003 which was subsequently dissolved by a Sharia council decree in December 2004 following their failed relationship. The husband sought recovery of gifts which he alleged he had given during the marriage and which he said were taken from his home. The wife counterclaimed for the unpaid Mahr agreed prior to the marriage. At first instance the trial judge dismissed the husband’s claims and granted judgment on the counterclaim. Similarly to Shanaz v Rizwan, the Court recognised and validated the contractual arrangement set out in the Mahr, with the Judge noting that the Mahr was provided as an absolute gift.
It’s clear that a written Mahr will have some sway on the English and Welsh courts in relation to matrimonial finance proceedings. However, not all Mahrs are written down which poses difficulties in the party seeking payment out the outstanding debt. Further, the Court still has to consider the principles set out in s25 Matrimonial Causes Act 1973 – for example the length of the marriage and the financial needs of each party – when making their decision. Substantive caselaw is clearly needed to put to bed the issue of when a Mahr can be enforced and when it can’t.
For more information about our services please contact the clerks at clerks@becket-chambers.co.uk or on 01227 786331.
