A high court judge has decided that a couple’s Islamic marriage falls within the scope of English matrimonial law, in a ruling that could have implications for thousands of Muslims in the UK.

In the case of Akhter v Khan [2018] EWFC 54:

Wife wanted to divorce her husband of 20 years, but he blocked it, arguing that the couple were not married under English law.

The parties underwent a religious marriage ceremony, known as a Nikah, conducted by an imam in 1998.

Wife, a solicitor, petitioned for divorce, saying the Nikah constituted a valid marriage. Husband, a businessman, wanted to prevent Akhtar from bringing a case for a divorce settlement to court, and said they were married only under sharia or Islamic law.

In a written ruling, Mr Justice Williams, who heard the case in the family division of the High Court in London, concluded that the marriage fell within the scope of the 1973 Matrimonial Causes Act. This case has created a new ‘flexible approach’ to the interpretation of s.11 MCA 1973. incorporating principles of fundamental human rights, so as to declare a marriage void (invalid), (as opposed to a non-marriage) after an Islamic Nikah ceremony.

The judge heard that the couple, both 46 and from a Pakistani background, lived in London, Birmingham and Dubai.

Wife said that after the nikah ceremony in front of 150 guests at a restaurant in Southall, west London, her husband had always intorduced her as his wife.

Conclusion:

Applying this new flexible approach to the facts, the judge concluded that, even though there was no civil ceremony the marriage fell within the scope of section 11 MCA 1973, and was held to be void (invalid) and therefore susceptible to a decree of nullity. The fact that the marriage was recognised under English law although it was invalid, allowed the wife to make a claim for financial remedy. Had the marriage been held as non-existant, the wife would have been prevented from applying for for a financial remedy in respect of the matrimonial assets.

A review instigated by Theresa May in 2016 when she was home secretary, found that a significant number of Muslim couples did not register their marriages under civil law, and “some Muslim women have no option of obtaining a civil divorce”. 

Please contact Aarti Mann on 01902 366 615 or alternatively by email at amann@ianhenery.com to discuss this matter further, or if, you are affected by the issues raised as above.