Non-legally binding marriages: national and international perspectives in practice

by Graeme Fraser, Naheed Ghauri, Nazia Rashid

Non-legally binding marriages have been a key issue for family law practitioners dealing with religious marriages and the ability to make a claim for financial relief, mainly between Muslim couples. This workshop aimed to broaden understanding of the issues and focus on how recent academic findings might intersect with family law in practice, and ways in which the impact of “non-qualifying ceremony status” might be minimised. This article summarises the themes that were discussed during the workshop. A case study accompanied the workshop presentation, and is available below.

The importance of the Law Commission’s work

The Law Commission reported on cohabitation and weddings law in 2007 and 2022 respectively. Having consultations headed by the Law Commission is essential as it allows policy makers and the public to have a say in how our laws are reformed instead of being led by judicial decisions confined by the facts of the case before the judges. It is also an opportunity for our plural society to be reflected in our laws. Our future laws must be fit for purpose and meet the needs of our diverse and evolving society.

Validity of religious marriages conducted in England & Wales

The main issue for questionable ceremonies is the status of the ceremony. When considering a ceremony, we need to consider whether there is valid marriage that comes under our marriage laws, mainly the Marriage Act 1949, and satisfies all the required formalities; or if there is a void marriage which also comes under the 1949 Act but fails to satisfy all the necessary formalities and is therefore void under s11 of the Matrimonial Causes Act 1973. This often occurs when the parties reasonably believe they have done everything necessary under the Marriage Act but have not. For void marriages, the parties are entitled to the same family law financial remedies that divorcing couples have in a valid marriage.

Parties in a non-qualifying ceremony are not entitled to any of the legal protections of void (nullity) or valid marriages. They can rely only on the remedies flowing from contract, property, or trust law. If the ceremony is based on a religious only marriage conducted in England & Wales, the parties might have to resort to non-state, non-binding religious forums to resolve issues flowing from the breakdown of the marriage.

The Church of England is the only religious body whose own buildings, ceremony, and celebrants are automatically qualified to create and register opposite sex marriages. All other communities must involve an additional civil element, and the place of worship may have to be separately registered to celebrate valid marriages.

The diagram below shows the complexity of the existing structural law of the formation and dissolution or annulment of marriages contracted in England & Wales, and was produced at paragraph 62 of Mostyn J’s judgment in Tousi v Gaydukova [2023] EWHC 404 (Fam).

Routes to valid marriage

Recognised ceremonies often go down a hybrid route whereby civil preliminaries are followed by such form and ceremony as the parties wish, and in a place of worship registered for the solemnisation of marriage.

Importance of status

If the marriage is held to be valid or void, the financially weaker party can apply for financial relief from the family court. If not, then they are left to rely on the mixture of property, contract, and trust law available to cohabitants, which can result in a lack of financial security, inadequate pension provision and a lack of automatic inheritance rights.

The role of the ISC and the MAT

If a divorce is not granted by the husband following a Muslim religious ceremony or there is some form of domestic abuse then women may turn to Shariah Councils, including the Islamic Shariah Council (ISC) and Muslim Arbitration Tribunal (MAT), the only Muslim religious tribunal, for an Islamic divorce. Muslim family law permits three types of divorce: talaq initiated by the husband; khula initiated by the wife and a faskh usually pronounced by a Shariah Council panel. The ISC mainly deals with faskh cases. It also deals with the recovery of mahr, a Muslim pre-nuptial/ marriage gift. (Siddique Patel sets out more detail in this area here).

Research by Warwick Law School and the University of Exeter for the Nuffield Foundation

This study, which helped inform the Law Commission’s work on wedding law, specifically looked at why non-legally binding ceremonies were taking place, including 88 participants who had gone through such a ceremony. Although most had also had a legal ceremony, 16 had not, of whom 14 were Muslims who had entered into a nikah, a Muslim religious wedding ceremony. Most participants viewed the nikah as more meaningful and the point at which they felt “married”. Muslim couples tended to have their religious ceremony first and for there then to be a longer delay before the legal wedding took place in comparison to other faith-based couples. Reasons for avoiding a legally binding marriage included financial considerations where one party wished to ring-fence their assets; avoiding the process of legally divorcing (for those with previous experience of this) and the perceived flexibility in obtaining a religious divorce; not being able to get married legally; a lack of awareness that the religious ceremony was not legally recognised; or a simple lack of desire to be legally married.

This helpful three-minute video explains the consequences of a nikah being a non-legally binding wedding and is useful for promoting the raising of public awareness of this particular issue.

Clients with international connections

It is very important to ensure that a client with international connections takes foreign legal advice to decide which jurisdiction is best to deal with the divorce. The foreign legal system might not follow strict Islamic principles; might be influenced by the geographical customs and culture; or might apply different rules of law depending on if one is a Muslim or not.

How could cohabitation reform assist those in non-legally binding marriages?

In non-legally binding ceremonies involving a religious ceremony, the couple and their community will see them as being married and not as cohabitants. While some cohabitants seek legal recognition, others cohabit to avoid legal rights and obligations. Some couples in religious only marriages want their marriage to be recognised by the law, while others have deliberately chosen the option of non-recognition. Where this autonomy flows from an informed choice, it should be respected.

In the Law Commission’s 2007 report on “Cohabitation: The Financial Consequences of Relationship Breakdown”, it recommended that to be eligible for its proposed scheme of financial relief, cohabitants must either have had a child together or have lived together for several years, suggested to be between two and five years.

In its 2022 report, “A New Weddings Law”, non-legally binding religious marriages would still be permitted without penalty or mandatory requirement for a civil registration, but the eligibility criteria could be extended to cover those who have undergone a non-legally binding ceremony of marriage (either faith based or non-faith based), where that ceremony is an overwhelming event of importance, to demonstrate commitment to one another. In the context of Muslim religious marriages, this would place a distinction between those couples cohabiting without a ceremony, and those who have gone through a ceremony which is not granted legal recognition and have not had a child or lived together for the specified duration.

How about marriages that may not be legally binding outside England and Wales?

In Tousi v Gaydukova [2023] EWHC 404 (Fam) an Iranian national and a Ukrainian national had an Iranian marriage in the Iranian embassy in Kyiv. As Ukraine treats embassies as being part of the “host state”, the marriage had to comply with Ukrainian law. The single joint expert was clear there was no valid marriage. Mostyn J decided that despite the couple having over 20 years of genuine belief in good faith that a valid marriage had been created, because no relief would be available in Ukraine, there should be no relief in England & Wales. The husband is now appealing the decision.

Mostyn J criticised the current law as follows at paragraph 90 of his judgment:

“These are not rare and remote outliers. There are many religious (usually Islamic) marriages solemnised in private dwellings in gross disregard of our laws (or the host country’s laws) concerning the due form for such ceremonies… the situation is a disreputable mess and urgently needs to be definitively clarified both substantively and procedurally”.

Conclusions

The problems which can arise when parties have had a Muslim religious ceremony in this country but have not had a civil ceremony has been highlighted by case law in recent years, including The Attorney General v Akhter and Khan [2020] EWCA Civ 122. Family law professionals need to have heightened awareness of the following:

when the relationship ends, the parties are in the same position as any other cohabitants, ie they do not fall within the provisions of the Matrimonial Causes Act 1973
in cases involving international aspects, foreign legal advice will usually be required
case law continues to evolve the judicial approach to these issues
the government is currently considering the Law Commission’s 57 recommendations in its Weddings Law Report, in consequence of which new legislation may follow

Acknowledgments

This workshop was a joint presentation produced by the authors on behalf of Resolution’s Cohabitation; International; and Equality, Diversity and Inclusion Committees. The authors would like to thank the following speakers who kindly gave up their time to deliver presentations for the workshop:

Max Lewis, Barrister, 29 Bedford Row Chambers

Khola Hasan, Islamic decision maker at the ISC in East London

Dr Rajnaara Akhtar, Warwick Law School

Alexandra Tribe, Expatriate Law

Dr Hassan Elhais, Al Rowaad Advocates, United Arab Emirates

Elham Hassan, Elham Ali Hassan & Associates, Bahrain

Zahrah Sehr Vayani, Zahrah S. Vayani & Associates, Pakistan

CASE STUDY

Valid, void or non-qualifying ceremony

This workshop was amalgamated and presented with the Cohabitation, International and Equality, Diversity and Inclusion Committee. A case study was briefly shared without exploring the intricate details of it. This is a real-life case study and the aim was to assist family law practitioners to identify issues arising from a religious-only ceremonies in relation to domestic and international issues.

The marriage of Amina and Abdul – background facts

Amina is a Pakistani-French national and Abdul is a Pakistani-British national. Both are Sunni Muslims. They have a religious-only ceremony of marriage (nikah). The oral religious ceremony was performed by a family member by telephone. Thereafter, the written ceremony was recorded by a local imam at home in Birmingham, in the presence of Abdul and Amina. The Islamic marriage certificate was signed and retained by Amina and Abdul was provided with a copy.

Amina was not aware that the religious ceremony required civil registration in order to be legally recognised. In France it is very rare for religious ceremonies to take place without registration. Abdul was aware that a civil ceremony had to follow in England for the marriage to be legally recognised.

Amina left the matrimonial home in London to visit her family in Paris. Abdul remained in England. Amina has not returned since and has made allegations of domestic abuse. Abdul has made several attempts to reconcile. He maintains that Amina left on good terms. Abdul is trying to legally and religiously obtain a divorce but Amina is not co-operating.

Surprisingly, Abdul is not able to seek religious redress either from SC due to allegations of abuse. Abdul is now hoping to start the divorce process from England and serve proceedings on Amina in France.

The validity of marriage in England and France

Did the ceremony bore all the hallmarks of the Marriage Act 1949?

To comply with the Marriage Act 1949, the couple must:

- give notice of the intended marriage; and
- either a registrar or authorised person should be present at the time the ceremony takes place; and
- the marriage must be registered

The Position in France

In France, marriage and divorce is a public matter. Muslim scholars encourage marriage at the Town Hall. A religious ceremony in France must take place after the civil ceremony. The French civil system results in a valid registration of marriage. Therefore, unregistered marriages are rare in France. Amina and Abdul’s religious-only ceremony in France would not be recognised.

The Position in England and Wales

Turning to the case law position, in Akhter v Khan [2020] EWCA Civ 122 the Court of Appeal allowed the appeal, rejecting the earlier decision of Akhter v Khan [2018] EWFC 54, Williams J pronounced a decree of nullity under the Matrimonial Causes Act (MCA) 1973 s11(a)(iii) in this case based on its particular facts, despite no civil ceremony; taking a “flexible” approach to the interpretation of section 11 was adopted (2018: [94], [96]). The Court of Appeal reinforced the applicability of “non-marriage” category, it was relabelled as “non-qualifying ceremony” [2020]: [7], [64]. The Law Commission, in their paper “Celebrating Marriage: A New Weddings Law” (2022) refer to such ceremonies as “non-legally binding ceremonies”.

The court confirmed that “non-qualifying ceremonies” (2020 [7], [64]) can occur which do not create a legally recognised nor void marriage under English law. It rejected the flexible approach taken to Article 11 of the European Convention on Human Rights on the basis of human rights arguments, in particular, the assertion of Williams J that his approach to Article 8 was consistent with the historic approach of the courts supporting a finding of marriage [98] – as at no time did the parties actually ‘seek to effect a legal marriage’ despite the wife’s wishes [97] [102]. Further, the approach to Article 12 was similarly dismissed for failing to reflect the ‘proper approach’ to interpreting section 11 as a single act of marrying rather than several acts as part of a continuum culminating in a civil ceremony [100]. With the continuum reasoning rejected, the nikah alone does not satisfy section 11. See table para 62 (judgment – Nazia Rashid discussed in the workshop) which explored validity and invalidity of marriage in Tousi v Gaydukova [2023] EWHC 404 (Fam).

Amina and Abdul’s religious-only marriage (nikah) is non-legally binding or a non-qualifying ceremony (instead of a void marriage and entitling them to a decree of nullity) which has no legal effect under English law. This is because Amina had no knowledge of the English process but Abdul did have knowledge and wanted to register the ceremony once they were settled in their matrimonial home.

Divorce – religious or civil?

English divorce is inappropriate in a non-qualifying ceremony. Abdul could pronounce an Islamic divorce (talaq could be pronounced without the need of SC, but Amina was not accepting service and all his mail/phone calls were rejected. Talaq is usually pronounced by a husband.

Divorce by Islamic Judicial Process – Li’an and Faskh within Shari’a Councils (Sunni jurisprudence)

Dissolution of marriage may be brought by judicial process. The first type in this category is li’an (mutual oath swearing), where the husband alleges without legal proof that his wife has behaved unreasonably; this was the issue in the above case. The wife is entitled to file suit to bring about retraction of her husband’s statement or require him to swear an oath to prove his allegations. The swearing of the oaths in lian is governed by the Qur’anic verse, Q.24:6-9:

And those who accuse their wives and have no witnesses except themselves, the testimony of one of them shall be to swear by God four times that he is truthful. The fifth time shall be God’s curse on him, if he is a liar. Her swearing four times by God that he is a liar will ward off punishment from her and the fifth time will be that God’s wrath be upon her, if he is truthful.

If the husband fails to sign the oath then what happens?

The second option the SC exercised the second form of judicial process, faskh, to annul the marriage. There are four schools of thought under Sunni jurisprudence: Hanafi, Maliki, Shafi’i and Hanbali and SCs follow all four. The grounds that are available to women seeking divorce are limited in Sunni-Hanafi jurisprudence and difficult to prove. The Malikis are the most liberal, followed by the Shafi’is and Hanbalis. Malikis allow a wife to divorce on the grounds of her husband’s ill-treatment, refusal or inability to maintain her, desertion, or he has a serious disease or ailment that would make it harmful to the wife.

The SC in Amina’s case had followed Hanafi school at the beginning; this partly caused the delay because Amina could not provide evidence of domestic abuse and Hanafi is the strictest school. Then a Hanbali school ruling was given to release Amina quickly from the marriage. This is one example for following different madaahib (schools) to find the best suited solution under the umbrella of Sunni jurisprudence.

In Islam, a wife can apply for a khula, if a husband refuses to grant her talaq but this is usually instigated in a court in a Muslim majority country. In England, this would be at a SC. In khula cases, the husband can consent to khula, but failing that a SC can pronounce faskh to end an Islamic marriage if the husband fails to sign an oath.

Amina alleged abuse allegations and SC became involved and pronounced faskh (an Islamic divorce which only SCs can pronounce). This was never served on Abdul. Abdul was not able to obtain relief as SC declined to deal with his case and he was informed to make contact with Amina via English law solicitors.

Financial claim

Does Amina/Abdul have a claim under the MCA 1973, if the marriage fails to satisfy all the requirements under the Marriage Act 1949? What is the position under English law?

In a non-qualifying ceremony, there will be no availability of a petition for a divorce or an application for a financial provision. As Amina and Abdul’s religious marriage is a non-qualifying ceremony, this excludes them from MCA 1973 s11.

However, if Amina applied for divorce in France based on abuse allegations (divorce pour faute), then it is possible for her to apply for provision under Part III of the Matrimonial and Family Proceedings Act 1984. In addition, there is entitlement to Schedule 1 to the Children Act 1989 and/or Trusts of Land and Appointment of Trustees Act 1996 (if the facts fit). Muslim women in some instances cannot enforce the payment of (pre-nuptial/marriage gift) mahr in SCs or in civil courts.

International issues

Amina should take advice from French lawyers and confirm the position regarding divorce/effecting service of religious-only divorce on Abdul and any pre-nuptial agreement (mahr) claims under English contractual law as a civil claim. There will be a follow up to the workshop.