Siddique Patel, solicitor at Shoosmiths specialising in Islamic family law, discusses a campaign for equality for faith marriages.
I believe that the Marriage Act 1949 is no longer fit for purpose for British society in 2019. Our society consists of men and woman from many faiths who wish to have the protection of the law of England and Wales when they marry. Unfortunately, due to the piecemeal evolution of the marriage laws of England and Wales, there is a gap in the law. Experience has shown that this gap has been exploited by many to deny women the legal protection they would enjoy under a civil Registry marriage.
Faith marriage ≠ legal protection
Out of the many conversations I have had over the years with Muslim men and women, Imams and members of other faiths, including Catholic, Hindu and Sikh, a familiar theme has emerged. There is an incorrectly held large consensus that a faith marriage conducted in England and Wales automatically means that it will be recognised by the law.
The fact that Islamic marriages are not automatically recognised in the UK surprises many Muslims, who assume that because an Islamic Nikah (marriage) registered in a Muslim country is recognised in the UK, Nikahs conducted here must also be legal. For example, if an Islamic Nikah took place in accordance with the Muslim Family Ordinance 1961 in Pakistan, it would be a valid and recognised marriage by virtue of the Foreign Marriages Act 1872. This is because it is in accordance with the law in Pakistan which employs a civil justice system based on the principles of Islamic Shariah law. However, this is not the same as an Islamic Nikah conducted on its own on England and Wales.
Focusing on Muslim marriage, there are approximately 3 million Muslims in the UK. Anecdotal evidence has shown that the majority of mosques in the UK are not registering religious marriages under civil law even when they are authorised to do so. Recent conversations with the registrars of Bradford confirmed that of the 94 mosques in Bradford, only 20 are registered as places for the performance of marriages in accordance with the Marriage Act 1949.
What is the Register Our Marriage campaign?
The Register Our Marriage campaign was started in 2014 by Aina Khan OBE. I quickly joined Aina in this pioneering campaign as I have seen the impact of unregistered faith marriages within the Muslim community after liaising extensively with Shariah Councils across England and Wales. I understood the need for a change in the law to protect women who enter into faith marriages under the false understanding that this would also give them legal rights.
The campaign focuses on changing legislation, in particular, an update to the Marriage Act 1949. This Act provides that only three faiths have to register their marriages:
- Anglicans (Church of England and Wales)
The ultimate objective of the Register our Marriage Campaign is to ensure that all religious marriages are legally registered to protect the family unit. The campaign has two aims:
- Raising awareness of the lack of legal protection for unregistered religious marriages
- Reform of the Marriage Act 1949 so all religious marriages must be registered under civil law.
An ever-increasing trend is that a large proportion of young British Muslims are not registering their religious marriage in the UK. Again, my experience has shown that this was not always the case and that 30 years ago the picture was quite the opposite. Muslim couples would first have their civil ceremony followed by the Islamic Nikah ceremony.
In February 2019, the UK government funded the Register Our Marriage campaign to run awareness-building programmes nationwide, starting in three target cities: Birmingham, Leicester and Bradford. We have set up steering groups in each area to build sustainability after the awareness building.
Our next aims:
- To run roadshows and a legal surgery in each of the areas
- We are taking steps to train faith leaders, including Imams to become marriage registrars
- We soon hope to have roadshows in each of the three cities
- We are working our way up to a parliamentary launch on 10 December 2019.
Uncivil consequences of unregistered Nikahs
As a practising family lawyer specialising in Islamic family law, I have too often come across the dramatic scenario where a mother is in dire straits after being left by the husband who has pronounced Talaq (Islamic divorce) and then learnt that the Islamic Nikah was not registered as a civil marriage.
As an Islamic Nikah performed in England and Wales is not recognised as a valid and registered marriage according to civil law. The wife does not have the same protection of the Matrimonial Causes Act 1973 that is relied upon by divorcing couples who do have a civil marriage. She has often no right or recourse to the courts, resulting in overnight homelessness and financial reliance on welfare benefits or on her parents. She has quite often been the homemaker who has contributed everything to the family life including raising the children, looking after the matrimonial home, looking after the husband's parents and as a result, having no income earning capacity of her own.
Under the Matrimonial Causes Act 1973 this contribution would be recognised and the courts would be able to decide on a split of the matrimonial assets based on factors such as the length of marriage, the protection of minor children under the age of 18 and the needs of the parties going forward, referable to their standard of living. However, as this is not a valid legal marriage there is no protection. This means that there are no pension or inheritance rights and in some extreme cases the wife actually loses income and savings that she has invested which sometimes could be in the hundreds and thousands of pounds.
There is a huge amount of complacency around this issue. 'We will get around to it soon' is a phrase I hear all too often. There is also a fear of commitment and a desire to 'test' the relationship. These factors, coupled with a widespread ignorance of the law with people assuming that living together gives them the same rights as a husband and wife, produces a perfect storm which leads to inaction and ultimately, no legal rights and protection.
On the part of husbands, there is also a strong desire to avoid going to court and providing financial maintenance and the sharing of assets to their ex-partners upon divorce. The highly persuasive (but incorrect) argument that 'Islam is all that matters' is used. This is based upon a false understanding of the precepts of Islam. Quite simply put, it is against the principles of Islamic equity and justice for a woman to be left with nothing after so many years of marriage. However, this is the sad reality facing women in England and Wales where all faith marriages are not on the same legal footing.
It is important that people are made aware of their legal rights and obligations. It is also important to separate the difference between the practices of religion and the somewhat traditional practices of culture. I hear various different reasons from people when they try to explain the reasons behind performing a faith marriage only, but it becomes clear that they are mixed up between their understanding of Islam (or lack thereof) and their understanding of culture.
If drafted properly, the law can be the great levelling force and ensures that everyone has the same rights and protections. It is high time that the Marriage Act 1949 is updated to protect and give rights to people of all faiths who wish to marry according to their faith and according to the law.
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
Listen to our Register our Marriage campaign podcast with Siddique
Our Pastoral care helpline for solicitors and their staff experiencing personal, financial, professional, or employment difficulties is open 9 to 5 Monday to Friday on 020 7320 5795
Our Practice Advice Service offers free and confidential support and advice on legal practice and procedure open 9 to 5 Monday to Friday on 020 7320 5675