Are you really married or not?

It seems like an obvious question to ask, however I often find myself dealing with clients who aren’t actually aware of what their true legal position is.

 

Although a majority of Muslims know that a Nikaah is required in order to be married under Islamic Law, there are many Muslims who do not understand how a Nikaah alone affects their marital status under English law. Working with Islamic divorce client for a number of years, I have seen this situation arise on many occasions.

A common example would be where clients instruct me on their Islamic divorce whilst not realising a civil divorce would also be required. This is simply because many individuals fail to recognise that although a Nikaah is an Islamic ceremony, it can in certain circumstances change their legal status.

After dealing with hundreds of divorce cases, I have noticed how there is a general misconception within the Muslim community in which they assume a Nikaah alone is always sufficient enough to start marriage life in England.

What these Muslim couples are unaware of is that if the marriage breaks down a Nikaah alone will not provide the same level of legal protection that would be available if they had also registered the marriage via a civil ceremony.

A recent case I dealt with involved a client who had come out of a 15 year marriage however she did not have any automatic rights over her husband’s assets as they only had a Nikaah performed in this country and had failed to then register the marriage. Many of these clients are those who chose to stay at home in order to look after the household and raise the children. They therefore relied on their partner to financially support them. Without any legal protection by virtue of a recognised marriage, should the marriage fail or their partner die, then their legal rights are extremely limited and may also affect their inheritance rights.

However independence plays a key role in some taking the step of not actually wanting to register the marriage because they are both themselves financially stable. They take the view that not registering their Nikaah may be an advantage as it protects them claims against the others wealth should the marriage breakdown.

What is the true position when it comes to the Nikaah and English Law?

It all comes down to where the Nikaah took place. Couples who marry in England and choose to solely participate in a Nikaah ceremony will not be classed as “married” under English law. Therefore, they will not acquire the automatic rights granted to married couples under English law. They are regarded as common law partners.

By opting to only undergo a Nikaah ceremony, couples are in effect denying financial security and other advantages which come from having a civil marriage. The reality is that while a Nikaah ceremony in England fulfils the religious aspect for religious marriages it does not satisfy the requirements for a legal marriage under English law.

So when is a Nikaah classed as a valid marriage under English law?

A Nikaah which takes place abroad in an Islamic country will be accepted to be a valid marriage under English law. Therefore there is no requirement to undergo a civil ceremony.

This now brings me to the topic of bigamy and polygamy which as you will be aware is a criminal offence in this country.

I cannot stress how many times I have faced clients who are completely oblivious to the fact they are about to commit a criminal offence.

A situation which I have faced on numerous occasions is where an individual obtained an Islamic divorce for a marriage which took place in a country such as Pakistan. They later decide to re-marry.

It is then I have to advise them due to marriage being abroad the Islamic divorce is not sufficient and a civil divorce will also be required otherwise they may face criminal prosecution if they enter into a subsequent marriage under English law without first correctly ending the first marriage.