With the rise of Muslim couples living in England and Wales, many couples have both civil and Muslim weddings, which give rise to potential conflict, writes lawyer Marwa Hadi.
Many couples have married in another jurisdiction and subsequently become resident in England and Wales. This can create conflict between the rules governing Islamic marriages and Civil marriages and the position is by no means clear, in particular when such marriages break down.
Is my marriage recognised in England and Wales?
Whether a marriage is recognised in England and Wales depends firstly on where the parties marry.
If an individual marries overseas, in a country in the Middle East for example, then provided the individuals marry in accordance with the laws of the country, then the marriage will be regarded as valid in England and Wales.
If an individual marries in England and Wales then the position is different.
Many Muslims living in England and Wales marry in accordance with the Shari’a law and although any Nikah ceremony performed in England and Wales means they are married in the eyes of God, this does not constitute a valid marriage for the purposes of English law unless the marriage takes place at a registered mosque. This information can be obtained from the mosque itself although very few mosques are in fact registered.
If the mosque is not registered then the parties will not be regarded as married and this can leave individuals in a difficult position as they will only be regarded as cohabitees.
Married couples enjoy various rights which cohabiting couples do not and therefore do not automatically qualify for the same protection under the law as married people.
If the parties are not regarded as married, then neither person has any basic rights to their partner’s property or maintenance. What happens to the home when a relationship breaks up depends on its ownership and contributions. Neither person will have any rights to the other person’s finances unless they have a joint account. Further, if one person in a relationship dies without leaving a will, the surviving person will not inherit anything automatically except the property if it is held by the couple as Joint Tenants. It is clear therefore that only being regarded as a cohabitee, often leaves parties, usually women, in a vulnerable position as they discover upon the breakdown of their Islamic marriage, that they were not regarded as being married in the eyes of English law and do not therefore enjoy the rights of a married couple.
It is important therefore that Muslims marrying in England and Wales ensure that as well as having an Islamic marriage ceremony, this is followed by a valid civil ceremony to ensure it is legally recognised.
I have a talaq – so am I divorced?
There is a further misconception held that Muslim couples who are married and reside in England and Wales can simply divorce with a “talaq”. Whilst the talaq will only ensure the parties are divorced in the eyes of God, a divorce in accordance with the laws of England and Wales, through the Court, also needs to be obtained to ensure the divorce is legally recognised.
If only a talaq is obtained, then an individual will be regarded as still married and will be committing an offence if they subsequently remarry.
One of the essential elements of the Islamic marriage contract is that the husband pays an agreed dowry “mahr” to the wife.
The gift itself can be nominal, however, it can also involve money, investments or property. This can be immediate, deferred or both.
The deferred dowry is often given in the event a specific event takes place, such as a divorce.
The issue of a dowry can prove complex for a couple married in England and Wales. Whilst in the event a couple divorce, in Islamic Law the Wife would be entitled to the dowry, within matrimonial proceedings in England and Wales, it is by no means guaranteed the Wife would be considered entitled to the Dowry. The Court’s ultimate objective is to achieve fairness however all the circumstances of the case will be taken into account and the dowry could be one factor to which the Court will have regard and this could result in the Husband paying the Wife a lump sum payment as a result.
If however the parties have an Islamic marriage but their marriage is not recognised in accordance with the laws of England and Wales, then the parties will be regarded as cohabitees and the ‘Wife’ would need to give consideration to bringing a claim against the ‘Husband’ for breach of contract and it is by no means guaranteed such a claim would be successful.
The issue of bigamous marriage is one further area in which there is conflict between Shari’a law and English law. Whilst a Muslim man is legally entitled to be married to up to four women at the same time, bigamy is a criminal offence in England and Wales. There are instances where Muslim men marry more than one woman, with the first marriage being recognised in England and Wales and the subsequent marriages being only performed in accordance with Shari’a law. The other “wives” are then in the vulnerable position of only having the rights of cohabitees upon the breakdown of their relationship.
Shari’a Councils also have a role to play in assisting Muslim couples who are divorcing. There are several Shari’a Councils in the United Kingdom. These are quasi-islamic Courts that provide legal rulings and advice to Muslims in accordance with Islamic Shari’a. Although the Council has no legal authority or jurisdiction in the UK, they do handle cases of marriage and divorce.
The Shari’a Councils do prove helpful in two main situations.
Firstly, there have been cases where a Husband and Wife separate, and in some cases the Husband has even married another woman, however the Husband refuses to grant the Wife a talaq. The Wife would then go to a Shari’a Council who would investigate her request for a divorce. If satisfied that reconciliation is impossible, the Council will grant a khulla divorce and the marriage will have come to an end.
Secondly, there are many Muslim couples who although are entitled to financial relief within matrimonial proceedings in England and Wales, they choose to divide their matrimonial assets and deal with financial provision in accordance with Shari’a law. There is nothing to prevent individuals reaching an agreement in respect of financial matters without a Judge having to make an order and the agreements reached can be in accordance Shari’a law. The Shari’a Councils can help provide recommendation and guidance as to how financial assets are divided although it is up to the couples as to whether or not they wish to follow their guidance and ultimately, any decisions made by Shari’a Councils cannot oust the jurisdiction of Courts in England and Wales whose decisions will take precedence.
There are clearly a number of situations where there is conflict between the rules governing Islamic marriage and divorce and a civil marriage and divorce.
Ultimately however, if the parties have a marriage which is legally recognised in England and Wales, the English Courts’ jurisdiction concerning how matrimonial assets are to be divided will prevail
Marwa Hadi is a matrimonial solicitor practising at Russell Jones and Walker based in Chancery Lane, London. She is fluent in spoken Arabic and has experience in dealing with divorce, cohabitation and children matters with an Islamic element. This article is reproduced from The Middle East in Europe digital/print edition issue 29 (2010).