I recently met a new client seeking some advice about a pre-nuptial agreement. He was a young man who was potentially going to marry his partner in an Islamic ceremony and then they would both move into his home which he had bought prior to the beginning of the relationship. The young man was accompanied by his mother who was worried about the way in which he owned his property and wanted some advice about protection.
I asked the usual questions about the relationship; in particular when they were due to marry. The answer was that this was to be an Islamic ceremony and so there would be no engagement in particular and that the marriage would be planned over a short period of time before the ceremony. There was no plan to register the marriage as a civil marriage alongside the Islamic marriage.
This answer changed things. If there was to be no registering of the Islamic marriage as a civil marriage then it would not be recognised as a ‘legal’ marriage according to the law of England and Wales. Accordingly there could be no pre-nuptial agreement as there were to be no nuptials. The client’s partner could not make any claims under the Matrimonial Causes Act 1973 as his wife because she would not be legally recognised as his wife.
With good timing, in February this year a review was conducted by the Home Office into the application of sharia law in England and Wales. The review was chaired by Mona Siddiqui OBE and can be read in detail here
In particular the review focused on “whether sharia law is being misused or applied in a way that is incompatible with the domestic law in England and Wales, and in particular whether there were discriminatory practices against women who use sharia councils.”
In the example I referred to above, a sharia council would presumably be approached by the wife to make decisions about a separation. It is important to note however that the sharia council has no legal status and no legal binding authority under civil law and hence in the event that a marriage was registered as a civil marriage, the law of England and Wales (ie under the Matrimonial Causes Act 1973) would prevail.
Use of the shariah council by women
The review found that over 90% of people using sharia councils are women seeking an Islamic divorce. The reasons for this were several; ranging from cost, to family requirements, to religious beliefs. Also the review found shariah councils being relied upon because of the lack of a civilly registered marriage and the misconception that an Islamic divorce is all that is required.
Civil marriage alongside Islamic marriage
Evidence was then sought as to why Muslim couples do not register their marriage civilly alongside the Islamic marriage. A number of possible reasons emerged, from simple lack of awareness, to financial reasons including wanting to avoid the jurisdiction of the family court, to polygamy.
Implications in the family court
If the Islamic marriage is not registered civilly, there can be no divorce using the jurisdiction of England and Wales. Hence in situations for example where property is owned by one person alone, the other person cannot make any financial claim other than through the laws of property ownership, which are much stricter and less open to discretion as in the divorce law of England and Wales. The financially disadvantaged client who has entered into an Islamic marriage but not a civil marriage will therefore find themselves in a much worse position.
The review recommends legislative changes to the Marriage Act 1949 and the Matrimonial Causes Act 1973, such to ensure that civil marriages are conducted before or at the same time as the Islamic marriage ceremony. This would ensure that a greater number of women would have the protection of family law in divorce.
It does seem rather bizarre that if a couple were married in another country in which an Islamic marriage was legally recognised, outside of England and Wales; they would then be able to use the divorce laws here, without having to register the marriage civilly. Yet those who have the Islamic ceremony here with no accompanying civil ceremony cannot.
Family Law Team