Research by broadcaster Channel 4 has revealed that around 30% of Muslim marriages might not be legally recognised in England and Wales. Considering that Muslims make up the second largest religious group in the UK (at 5% of the population) this figure is startling and ought to be an immediate cause for concern. What are the consequences for these families whose wedding ceremony was not capable of giving rise to a legally valid marriage and what can be done to protect vulnerable parties who find themselves in this position?
What is an invalid marriage and what are its consequences?
The Matrimonial Causes Act 1973 governs under what conditions a marriage is legally ‘a nullity’ in England and Wales. Many people are familiar with the concept of an annulment, by which a marriage is legally taken to have never even existed. This stands in contrast with a divorce where a lawful marriage is dissolved. Historically the difference between an annulment and a divorce was very significant: famously Henry VIII founded the Church of England after Pope Paul III refused to let him annul his marriage to Catherine of Aragon.
Annulments are not, however, resigned to the history books yet and are still relevant today. In fact for many separating couples the availability of an annulment is crucial to their future happiness. For many people who are committed to their faith a divorce is simply not an option – their church may not recognise divorce and would not permit them to remarry without a ‘decree of nullity’ confirming that legally the parties were never married. To get a marriage annulled a marriage must be void or voidable.
A marriage will be void if:
The parties were within the prohibited degrees of relationship (such as a brother and sister);
Either party is under the age of sixteen;
Either party was already married or in a civil partnership; or
The parties married without observing the proper formal requirements.
A marriage will be voidable if:
The marriage has not been consummated;
The respondent (meaning the person who receives the petition for an annulment) had a venereal disease or was pregnant at the time of marriage;
Lack of consent by either party to the marriage;
Either party at the time of marriage suffered from a mental disorder within the meaning of the Mental Health Act; or
The respondent is transgender.
Financially, however, the distinction between a divorce and an annulment makes little difference. The court is empowered in both instances to make financial orders. If your marriage is invalid the court is still able to decide what should happen to the matrimonial home, whether or not one spouse should make payments to their ex or whether a pension should be shared (among other things). In light of these facts it might then seem that there is little cause for concern for Muslim couples in legally invalid marriages. If their marriages are void or voidable then financially weaker spouses can still rely on the court to protect their financial interests.
This is not so: the concept of a ‘non-marriage’ puts potentially hundreds of (predominantly) women at risk of poverty. If your marriage is a non-marriage, rather than being void or voidable, then no financial orders can be made.
What is a non-marriage?
A non-marriage is a ceremony that is so far removed from a marriage that it should not even give rise to an annulment. The case of Hudson v Leigh (2009) established the concept of a non-marriage. This concept can be best illustrated by using the example of a marriage ceremony forming part of a theatrical production. Such an event might look like a wedding and use all the correct language, but no member of the audience nor the purported groom, bride and officiator believes a marriage to have taken place.
The reason this can give rise to problems is because a marriage can be void for failing to comply with the relevant formalities. This means that deciding if a ceremony gave rise to a void marriage or a non-marriage is a matter of judgment in individual cases.
A legal marriage ceremony is still rooted heavily in Christian traditions: even a civil ceremony follows a Christian format, in that it must take place in a registered building. With regards to religious ceremonies, Church of England Churches are automatically registered buildings, but Mosques are not. Furthermore if you plan on having a non-Anglican religious ceremony, you will need to give notice of your intention to marry to the register office at least 28 days before the wedding. Additionally officiants of marriages must be authorised to register marriages and many Imams are not authorised. This stands in contrast with Jewish and Quaker marriages. Rabbis are automatically authorised to marry people of the Jewish faith and can do so in any location (as long as the marriage takes place under a chuppah). In the case of Quaker weddings Ministers are also able to marry members of their faith in any location. All other religious groups must marry in a registered building with an authorised person present.
For all these reasons many Muslim ceremonies do not give rise to legally valid marriages. To be recognised under UK law a separate civil ceremony must take place.
An Islamic marriage ceremony is called a nikah and requires only the presence of an officiator and two witnesses. In some circumstances the ceremony itself might take an unusual form: the case of K v K (2016) involved a nikah that took place via a conference call in a hotel, as the Imam was in Pakistan.
Ensuring that these ceremonies are recognised as void marriage ceremonies is of the utmost importance, purely because it allows for the State to protect vulnerable people who could otherwise lose everything to the financially stronger party. Many couples choosing to have only a religious ceremony are also under the mistaken belief that their marriage is legally valid.
The recent case of Akhter v Khan (2018) in the High Court offers a solution to this problem – at least until it is addressed by the legislator. In this case the parties had undertaken an Islamic marriage ceremony in 1998, but had never had a civil ceremony. The Judge held that their nikah could not create a valid marriage, but that the ceremony was of a kind contemplated by the Matrimonial Causes Act. For this reason the wife was entitled to a decree of nullity, as there had not been a ‘non-marriage’. It can only be hoped that future Judges will follow suit.