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  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  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”.
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  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
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