A court has reversed a judgment from two years ago which found that a couple who had an Islamic wedding ceremony could legally divorce.
The case involved the divorce of Nasreen Akhter and Mohammed Shabaz Khan, who were ‘married’ for 18 years and have four children together.
The couple had an Islamic “nikah” wedding ceremony in the presence of an imam and 150 guests at a west London restaurant in 1998. No civil ceremony subsequently took place, despite Mrs Akhter repeatedly raising the issue with Mr Khan.
The couple separated in 2016 and Mr Khan tried to block his wife’s divorce petition two years ago on the basis they had not been legally married in the first place. The High Court ruled in 2018 that the couple’s Islamic nikah ceremony fell within English marriage law, and Mrs Akhter was entitled to apply for maintenance payments from her estranged husband.
The Attorney General appealed against the original court decision.
In the written judgment which the Court of Appeal handed down on Friday, the judges concluded that upholding the High Court’s ruling “would gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community”.
The judgment added that it is “not difficult for parties who want to be legally married to achieve that status”.
Master of the rolls Sir Terence Etherton, who looked at the case with two other judges, argued the nikah was a “non-qualifying” ceremony. Announcing the court’s decision, he said: “The parties were not marrying ‘under the provisions’ of English law.
“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 authorised 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.”
This decision reiterates the legal status of a marriage registered in England and Wales, and perhaps most importantly that the legal rights and protections will only be available to those divorcing when there has been a legal marriage.
A marriage under Sharia Law or any other religion must be followed by a civil marriage, unless it has taken place in a country where Sharia Law or other religious ceremony is accepted as a legally binding marriage. In England and Wales, any religious ceremony that is not followed by a civil registration is not legally binding. For solely Islamic marriages in England and Wales, the parties are left with only that compensation provided for in the marriage contract.
Many people are left without the protection of the law upon separation and so fall back into Civil law as to the separation of their assets and liabilities.
Women’s rights campaigners claim that this landmark case could have “profoundly discriminatory consequences” for women and upholds an antiquated system of marriage. The ruling means that women in sole sharia unions are vulnerable as they could be left penniless with no support following a break-up.
We are able to assist and advise through these complex issues and how the Law of England and Wales will apply in your particular circumstances.
Click here to view the full Judgement: Her Majesty’s Attorney General (Appellant) v Nasreen Akhter and Mohammed Shabaz Khan (Respondents) and Fatima Mohammed Hussain and Southall Black Sisters (Interveners)  EWCA Civ 122