UK High Court: Sharia Marriages Not Valid Under English Law

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The Royal Courts of Justice in London, seat of the Court of Appeal. 
The Court of Appeal is the second-highest court in England & Wales after the Supreme Court.

☆ A Landmark Ruling With Far Reaching Implications

The Court of Appeal, the second-highest court in England and Wales after the Supreme Court, has ruled that the Islamic marriage contract, known as nikah in Arabic, is not valid under English law.

The landmark ruling has far-reaching implications. On the one hand, the decision strikes a blow against efforts to enshrine this aspect of Sharia law into the British legal system. On the other hand, it leaves potentially thousands of Muslim women in Britain without legal recourse in the case of divorce.

The case involves an estranged couple, Nasreen Akhter and Mohammed Shabaz Khan, both of Pakistani heritage, who took part in a nikah ceremony officiated by an imam in front of 150 guests at a restaurant in London in December 1998.

In November 2016, Akhter, a 48-year-old attorney, filed for a divorce, allegedly because Khan wanted to take a second wife. Khan, a 48-year-old property developer, tried to block Akhter’s divorce application on the basis that they were not legally married under English law. Khan said that they were married “under Sharia law only” and sued to prevent Akhtar from claiming money or property from him in the same way a legally married spouse could.

Akhter said that the couple, who have four children, intended to follow the nikah with a civil marriage ceremony that would be compliant with English law. No civil ceremony ever took place, however, because, according to Akhter, Khan refused.

On July 31, 2018, the London-based Family Division of the High Court ruled that the nikah fell within the scope of the Matrimonial Causes Act 1973, which establishes three categories of marriage: valid, void and non-marriage. Valid marriages may be ended by a decree of divorce; void marriages may be ended by a decree of nullity; non-marriages cannot be legally ended because legally the marriage never existed.

The high court determined that the Akhter-Khan marriage was a “void marriage” because it had been “entered into in disregard of certain requirements as to the formation of marriage.” It ruled that Akhtar was therefore entitled to a “decree of nullity of marriage.”

The Attorney General, on behalf of the British government, filed an appeal on the basis that it was wrong to recognize the marriage as being “void” rather than a “non-marriage.”

On February 14, 2020, the London-based Court of Appeals overturned the High Court’s decision and ruled that nikah marriages are “non-marriages” within the scope of English law. In its ruling, the court explained:

“The Court of Appeal finds that the December 1998 nikah ceremony did not create a void marriage because it was a non-qualifying ceremony. The parties were not marrying ‘under the provisions’ of English law (Part II of the Marriage Act 1949). The ceremony was not performed in a registered building. Moreover, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorized person was present at the ceremony. Further, the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony that did comply with the relevant requirements in order to be validly married. The determination of whether a marriage is void or not cannot, in the Court’s view, be dependent on future events, such as the intention to undertake another ceremony or whether there are children.

“There is no justification for treating the civil ceremony, which the parties intended to undertake, as having in fact taken place, when it never did. This might result in a party being married even if they change their mind part way through the process of formalizing the marriage. That would be inconsistent with the abolition of the right to sue for breach of an agreement to marry by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1970. The parties’ intentions cannot change what would otherwise be a non-qualifying ceremony into one which is within the scope of the Marriage Act 1949.”