Land mark ruling over validity of religious marriage

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27 February, 2020

There has recently been media coverage of a case before the Family Court in respect of the validity of a religious marriage, which had not been registered in England and Wales.

The wife had applied for a divorce from her husband. They were married some 22 years ago in an Islamic marriage ceremony (Nikah) in a restaurant in England however there was never a civil registration afterwards. The wife stated that she did press her husband to register the marriage, however the ceremony was never performed. The couple had three children together and separated in 2016 when the wife petitioned for a divorce. The husband defended the divorce and the Attorney General intervened in the proceedings.

The issue in these proceedings was whether the ceremony created a "non-marriage" or whether it was a "void" marriage. If it was ruled that it was a void marriage, the wife would have been able to apply for a decree of nullity and thereafter apply for a financial remedy order. The Attorney General's position was that the ceremony created a non- marriage however the wife argued that the ceremony created a void marriage and that she should be able to apply for a decree of nullity.

Initially the Judge ruled that the ceremony had created a void marriage, however this decision was appealed by the Attorney General and it was held that the ceremony had created a non-marriage. The ceremony had not taken place as per the provisions of the 1949 act:- no notice had been given to the registrar, the ceremony was not performed in a registered building, no certificates had been issued and no registrar or other authorised person was present. Furthermore, at the time of the marriage both the husband and wife were aware that the ceremony did not constitute a valid marriage under English Law. The decree of nullity could not be granted and therefore the wife was not in a position to apply for a financial remedy order.

Unfortunately, this is not the first time this issue has arisen. When a couple marry in a Nikah ceremony in England, there is quite often a promise that following the ceremony, there will be a civil registration of the marriage. It is usually the wife who is the financially weaker party seeking an financial remedy order and the consequences of not registering the marriage will have a devastating effect on the wife.

The wife may believe that they have lawfully married their husband, however without a civil registration afterwards, they are not married in accordance with the law. This means that they have no right to claim against their husband when they separate, in addition they have no rights to claim for spousal maintenance, regardless of the length of the relationship.

If you are planning on marrying your partner in a Nikah ceremony in England or Wales, and intend for it to be valid under the law, it is extremely important that you have a civil registration afterwards. Failure to do so will result in a non-marriage, meaning that you will not have the same rights as someone whose marriage is valid under the law.

For more information contact Rachael Sutcliffe in our Family/Divorce department via email or phone on 01772 220145. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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