Are Muslim Marriages Recognised in The UK?
Nikah in the UK
Every year Muslim couples get married in England and Wales with many of them only undergoing the religious ceremony of Nikah. The Nikah (or Aqad Nikah) is a marriage contract under Shariah (Islamic) Law, and currently such contracts have no legal standing under UK law. In order to ensure that the marriage is legally recognised in the UK, some couples choose to carry out an additional marriage at a registry office which gives the marriage the legal effect of a civil marriage under the various laws in the UK, (UK Law),
The Nikah ceremony can be conducted at home, in the Mosque or even at a formal wedding venue. Notwithstanding that such ceremony may be carried out by an eminent member of the Muslim community, such marriages, no matter where they are conducted, have no legal status under UK law, a fact that sadly is not always known to the participants in the ceremony, who often have the view that the marriage is recognised under UK law.
The reality is that while the Nikah ceremony is a religious ceremony that is binding under Islamic Law unless it is accompanied by a civil marriage, then this Islamic marriage is not a recognised marriage under UK law and the parties to the Islamic marriage contract do not acquire any enforceable rights under the laws of the country in which the parties resides (whether England, Wales, Scotland or Ireland).
To put it bluntly, those couples who opt to only hold a religious ceremony are recognised as nothing more than co-habitees under UK law. They do not have the same rights as a couple who have undergone a civil ceremony, and who are as a consequence recognised as being legally married.
While clearly to those individuals who adhere to and practice Islam strictly this may not be a concern, believing that the Nikah is enough that the marriage is recognised under Islamic Law, problems may and do arise when things go wrong, either by the conduct of one of the parties or due to life situations such as death. This is obviously a consequence of an attempt to juxtapose two legal systems where only one has force of the law of the country in which the parties reside. We acknowledge the attempts by the various Muslim councils/bodies to arbitrate in such situations but we are also familiar with the problems that arise where one of the parties refuses to be bound by the advice of these bodies and reject this guidance as not being legally binding. Unfortunately the binding law in such situations would be UK law.
There are very clear distinctions between the legal status of co habiting couples (and this would include under UK law couples who have only undergone the Aqad Nikah ) and those who are legally married. Cohabiteees have far fewer legal rights than the legally married. For e.g.: a married woman would be entitled to make a claim against her husband’s property even though it was in his sole name whereas a cohabitee could not automatically make a claim against her/his partner’s property if it was in his/her sole name. (There are some differences to this concept in Scotland) . If one of the parties was terminally ill the other party would not be regarded as the next of kin.
Nikah marriages that have taken place abroad in countries that have Muslim family law legislation (such as Malaysia, Pakistan and Saudi Arabia ) may be legally valid in the UK provided that the marriage was conducted in accordance with the formal laws of such country. UK law does recognise some foreign marriages.
Religious Nikah Ceremony
Couples who decide to only proceed with a Nikah marriage ideally need to take steps to protect the position of their partner and themselves in the event of death, incapacity or relationship breakdown. One way of addressing this is by the parties entering into a Cohabitation Agreement which allows the parties to regulate their financial assets and protect the money or property they have accumulated during the marriage or which they may inherit. Such Cohabitation Agreement would determine how these assets be divided should the relationship breakdown.
A Cohabitation Agreement can also include other provisions (provided they are reasonable), relating to the children, the division of Jewellery received during the marriage and may even provide for agreement as to who does the housework and how the bills are paid. In addition, couples can set out Shariah financial principles in such agreements, for e.g. as to the lump sum the wife shall receive if the marriage comes to an end and the wife’s right to divorce. It is important that your legal advisors ensure that Shariah principles you wish to incorporate into the agreement are compliant with UK law. Cohabitation Agreements can be extremely useful in the event of a dispute or relationship breakdown and the terms included in the Cohabitation Agreement can be highly persuasive to the courts as evidence of the intention of the parties, provided that both parties have taken legal advice at the time they entered into the Cohabitation Agreement .
Nikah ceremony and Civil Ceremony
Parties who wish to ensure that their marriage is recognised under UK law should also have a civil ceremony. While a few mosques in the UK are registered under the 1984 Marriage Acts to carry out the solemnisation of marriage under UK law, not all mosques have this facility and it is up to the couple to have a separate civil marriage at a registry office at a later date.
Those who intend to have the marriage recognised under UK law may also consider entering into a Pre Nuptial Agreement. We unfortunately live in a society where divorce is a common feature amongst all communities. The advantage of a entering in to a Pre Nuptial Agreement before the civil ceremony is that these agreements set out how each party would like their assets to be divided in the event of a divorce. For example, such agreement could include a provision to protect assets/gifts which have been received from family members, as it is quite common within the Muslim community for parents to gift children a substantial amount of money or property assets.
A well drafted Pre Nuptial Agreement can upon the breakdown of relationship prevent or minimise the matter being litigated through the Court thus saving legal costs as well as the distress of a dispute being carried out through the court process.
Muslim Marriage Contract
A Muslim Marriage Contract is a useful written contract entered into at the time of marriage. It is simply a document setting out the rights and responsibilities of both the husband and wife. These are the rights of the parties under Islamic Law.
While such a document has no legal status under UK law, it does provide written proof of an Islamic marriage and sets out the parties’ duties and responsibilities under Islamic law.
A Muslim Marriage contract can include provisions that the husband will not take another wife without the consent of his first wife. More importantly, the contract can provide women with the automatic contractual right to talaq-i-tafweez. This is the right of a wife under Islamic Law to initiate divorce proceedings without having to prove grounds for the divorce and without requiring the consent of her husband. The Marriage Contract can also stipulate a wife can retain her financial rights including her dowry (mehr).