By Vishal Vora and Hadeer Soliman
State level discussions, suggested legislation, and case law surrounding Islamic marriage suggest that government officials in England and Wales view the matter, and perhaps Islam as a whole, as incompatible with marriage in the West. This commentary examines some English and Welsh public commentary on Islamic marriage, analyzes statutes and case law, and contemplates reform of current marriage law. It looks at Al-Saedy v. Musawi (2010), Dukali v. Lamrani (2012), MA v. JA (2012), and the July 2018 decision of Akhter v. Khan (2018). The piece concludes that marriage law in England and Wales is outdated because of its historical roots but is beginning to change its inflexible approach to allow for consideration of the intention of the parties to marry by applying rules of cohabitation.
State level discussions, suggested legislation, and case law surrounding Islamic marriage suggest that government officials in England and Wales view the matter, and perhaps Islam as a whole, as incompatible with marriage in the West. This piece examines some English and Welsh public commentary on Islamic marriage, analyzes statutes and case law, and contemplates reform of current marriage law. It concludes that marriage law in England and Wales is outdated because of its historical roots, but is beginning to change its inflexible approach to allow for consideration of the intention of the parties to marry by applying rules of cohabitation.
The English and Welsh legal approach to marriage does not deal effectively with unregistered marriages. One way to recognize the rights of those who are religiously deemed married is to acknowledge the rights that come with cohabitation. In England and Wales, marriage is governed by the Marriage Act of 1949, which permits marriages to be solemnized if they occur in a registered building, in the office of the superintendent registrar, or on approved premises and also according to the usages of various faith groups—including Quakers, the Jewish tradition, and the Church of England; or at the place of residence of a person who is house-bound. As a result of the period of the Act’s passage and the commonwealth postwar migration history of the United Kingdom, the Act does not include Islam and other minority faith groups. Because the religious solemnization ceremonies of marriage in Islam and in other minority religions are not specifically listed in the statute, parties to marriages of those faiths must essentially “marry twice,” once according to their religious rites and again in an authorized building in order to register their marriages civilly.
This requirement becomes problematic when individuals marry via a religiously valid ceremony and therefore consider themselves married, but fail to register their marriages in compliance with the Marriage Act of 1949. With such unregistered marriages, these individuals are not entitled to the financial benefits of marriage during, or upon the breakdown of, the otherwise religiously valid marriage. In the hopes that more women would register their marriages if they learned that Islamic ceremonies are not sufficient to make a marriage legal, a U.K. government-commissioned report recommended an “awareness campaign” to educate women of their rights and responsibilities in marriage and divorce. While an educational campaign may increase the number of marriage registrations among the portion of individuals who mistakenly believe that their Islamic ceremony alone, or nikāḥ ceremony, sufficiently solemnizes their marriage, the English legal system should do more to recognize the financial rights of the parties to a broken-down, unregistered marriage. By focusing on the intent to create a marriage, or even on the length of cohabitation of the individuals following a religiously valid marriage ceremony, the law can protect the rights of those who intended to be legally married.
B. Commentary from English Public Officials
In November 2016, Baroness Cox of the House of Lords cited the specific relevance for Muslim women in her statement following her proposal of Amendment 219(C) to the Policing and Crime Bill, which attached criminal sanctions for the failure to take reasonable steps to ensure that religious marriages complied with marriage laws of England and Wales. Without regard for what this amendment contributes that the Marriage Act of 1949 does not already require, Cox provided anecdotal evidence of victims of unilateral divorces and secret polygamous marriages as proof of the necessity of the amendment. Cox’s statements vilified sharīʿa, or Islamic law, rather than examining the cultures, institutions, and people – regardless of whether their acts were associated with Islamic law – that contribute to violence against women. Although she stated that hers was “not an anti-Muslim or Islamophobic initiative,” she went on to explain that sharīʿa’s regulations on divorce harms many women, including a few whose stories she recounted. If the problem is indeed a lack of registration of marriages or the fact that divorces can be carried out extrajudicially, implementation of criminal sanctions for a lack of registration of a marriage would likely not lead to greater civic-legal participation and benefits to Muslim women but rather more polarization and “otherization” of Muslims. Of greater assistance to the women whose stories she recounted would be a recognition of and solution to the abuse.
Cox conveyed a similar attitude one year earlier in debates supporting the Arbitration and Mediation Services (Equality) Bill (the “Bill”), when she discussed gender discrimination, polygamy, and Muslim marriages without attention to the fact that such issues are not unique to Muslim communities and are influenced by many factors aside from the religious law itself. In fact, she stated in 2015 that she was introducing the Bill “to ensure that the operation of Sharia law principles in the UK today is not undermining the rights of women and the rule of law.” During the January 2017 debates in the second reading of the Bill, Cox specifically singled out discrimination against Muslim women as the motivation behind her push for the Bill. The Bill, which aimed to prohibit discrimination on the basis of sex in arbitration, appears neutral, but is actually motivated by sweeping generalizations about the way the law affects Muslim women. Although Cox noted that the bill did “not specify any faith tradition,” she insisted that it would act as a “lifeline” for “Muslim women [who] are today suffering in this country in ways in which, as I always say, would make the suffragettes turn in their graves.”
This approach, proposing legislation with the clear purpose of attempting to protect Muslim women from Islamic marriages, is hardly new. In 1984, two members of Parliament proposed Amendment 17 to the Matrimonial and Family Proceedings Act in order to protect Muslim women, as evidenced by the speeches to advocate for the amendment in Parliament that referenced Muslim women who were blackmailed by their husbands and forced to pay before their husbands would consent to a religious divorce.
Some segments of society tend to regard Islamic marriage with suspicion, whether as a “sham” to evade immigration controls or a breeding ground for violence against women. In reality, however, Islamic marriages are not a monolith, and each is unique to the individuals, families, and cultures involved. The issues involving immigration evasion or gender violence must be treated as national problems, without criminalizing or denigrating religious law. It is counterproductive to treat marriage problems in the Muslim community as a fundamental problem with Islam because this approach needlessly criminalizes Islamic marriage traditions.
In order to begin to tackle some of the issues arising from a lack of registration of Islamic marriages, the law’s understanding of state marriage in England and Wales must evolve. Courts in England and Wales already have started to view Islam differently in the case of marriage. A study of English case law demonstrates the courts’ changing approach.
C. Case Law Related to Islamic Marriages
When examining cases relating to unregistered religious marriages, the findings of English courts have usually turned on whether there was a presumption of marriage in the relationship. In the 2000 Court of Appeal case of Chief Adjudication Officer v. Kirpal Kaur Bath, the Court found that, where a marriage occurred in a Sikh temple but was unregistered, there was a presumption of a valid marriage because the couple could have been unaware that the temple was not registered for the solemnization of marriage, and because the couple subsequently cohabitated for a period of 37 years. Although this case did not involve a Muslim marriage, it is instructive insofar as it comments on the position of religious marriages in UK law and because the holding was later cited in cases involving Muslim law.
Despite the Court’s finding that a presumption of marriage existed in Bath, later cases suggest that a couple’s lack of awareness by itself is not sufficient to find a presumption of valid marriage. For example, in 2012, the court in Dukali v. Lamrani found that an Islamic marriage that occurred at the Moroccan consulate in London could not be treated as a marriage for the purposes of financial relief. The Court found that the couple’s seven or eight-year cohabitation was not long enough to prompt a presumption of marriage like the one in Bath.
In the 2010 case of Al-Saedy v. Musawi, the wife argued that the couple had a marriage ceremony in Damascus, and, should that Islamic ceremony not be legally recognized, that a valid marriage should be presumed because of the couple’s long cohabitation and public reputation as husband and wife. The husband argued that the couple was not present in Damascus at the time of the alleged marriage, and that they instead had an Islamic marriage ceremony at a flat in London. Accordingly, while the ceremony was religiously recognized as a marriage, it was not valid under English law. The Court found it improbable that the Damascus ceremony occurred, and that while the couple had a reputation as husband and wife in the community, their cohabitation was not sufficiently long and committed to give rise to a presumption of marriage. The only proven ceremony was the one in London with no effect of marriage under English law. In its judgment, the Court ruled that where, as here, the only known or proven ceremony was one which might not have constituted a marriage under English law, then a marriage could not be presumed. Thus, cohabitation and the presumption of marriage have historically not provided sufficient evidence of a valid legal marriage for those in unregistered religious marriages.
Courts have since also drawn a distinction between void and non-existent marriages (or “non-marriages”). A marriage that is void is one that may have the outward appearance of a marriage, and fails to meet the test of legal marriage, but still is able to give rise to financial orders under the Matrimonial Causes Act 1973. A non-existent marriage or a non-marriage, on the other hand, cannot be considered valid under UK law because it fails to comply with the prerequisite formalities and as such bars any such financial claims. In determining whether a marriage is a void marriage or a non-marriage, courts consider factors including whether the ceremony was conducted in a way that purported to be a lawful marriage; whether it bore all or enough of the hallmarks of a lawful marriage; whether the key participants believed, intended, and understood the ceremony as giving rise to a lawful marriage; and the reasonable perceptions of those in attendance concerning the proceedings as a lawful marriage. While the category of non-marriage should be limited to fictional marriages, a disproportionately high number of non-marriage cases arise from Islamic marriages.
The general rule for what constitutes a valid, lawful marriage can change based on the specific facts of each case. For example, in the case of MA v. JA, a marriage ceremony took place in a mosque that was registered to solemnize marriages but did not follow the requirements of the Marriage Act of 1949, because the individual conducting the marriage, though a leader at the mosque, was not the authorized person to solemnize marriages. In this case, the Court found that a marriage was created because the parties intended to contract a marriage and the ceremony “bore the hallmarks” of marriage, in the sense that the parties took one another to be husband and wife. Although the formal requirements of the Marriage Act of 1949 were not fulfilled, the Court nevertheless justified its finding of a lawful marriage under these circumstances, unlike the prior line of cases. Notwithstanding the positive outcome in this case for the couple, the Court’s focus on the “hallmarks” of marriage in this case demonstrates a lack of understanding of marriages conducted according to Islamic law.
In substance, Islamic marriage requirements, which, by majority opinions, require a contract between consenting parties with the condition of a dower offered to the bride and two witnesses, are so similar to the requirements of English law that some scholars have found that a civil marriage ceremony fulfills the Islamic requirements of offer and acceptance of the marriage contract. Despite this similarity, English and Welsh courts have historically viewed Islamic marriages as foreign, often classifying them as non-marriages.
The conclusion in MA v. JA offers unique recognition of the fact that Islamic marriage requirements can satisfy the English legal requirements as well. Ultimately, the English legal system’s approach to recognition of unregistered marriages is entirely fact-based and varies on a case-by-case basis, signaling the courts’ tendency to consider certain factors as more important than others in the assessment of marriage validity. Although the judgments of Dukali and MA v. JA seem to suggest that the intention of the parties to conclude a marriage is only considered when there is already purported compliance with the law, the parties’ intention can be an enlightening method of analysis because it points to the existence of a lawful marriage.
The July 2018 decision of Akhter v. Khan  seems to employ human rights protections to avoid the pitfall of a non-marriage designation. In particular, the judge discussed the inappropriateness of designating the Islamic marriage to be a non-marriage in that case given that the wife would be left without any remedies arising from divorce or nullity. In Akhter, the parties underwent an Islamic marriage ceremony conducted by an imam in a London restaurant in front of guests but did not subsequently have a civil ceremony. Although the facts are disputed, it appears that the wife insisted throughout their “marriage” on conducting a civil ceremony but that the husband declined. However, they were seen in the community as husband and wife, and for a brief period when living in Dubai, were considered legally married. It is important to stress that this case was not about whether an Islamic ceremony of marriage can be treated as having created a valid or lawful marriage under English law. The judge went to lengths speaking about the differing characters of the husband and wife, and the notion of justice seemed to be at the front of his mind when making the judgment, perhaps because this “marriage” lasted 18 years and bore four children. Whether this case will be subject to an appeal is unknown. Although it deals with highly specific facts that could distinguish it from future cases, the Akhter decision could assist future courts dealing with the issue of unregistered Muslim marriage in the English (or Welsh) context. The judgment hints at courts’ willingness to proceed in the direction of recognizing non-registered marriages as valid marriages (or at least void marriages that entitle parties to some of the protections of UK law upon divorce), and the next case to use the authority of the judgment in Akhter will be highly informative.
D. Reform: A Way Forward
Some scholars have called for Islamic marriage to be recognized without the need for separate registration of civil marriage. The arguments range from a call for acknowledging other forms of recognition aside from registration to embracing other minorities among the types of marriages currently recognized by the Marriage Act of 1949. Recognizing Islamic marriages may protect vulnerable parties who would otherwise be divorced without pecuniary rights. Some public figures, like the government officials who distance themselves from Islamic marriages, argue that recognizing Islamic marriages would mean recognizing polygamous marriages. However, the state always retains control over what forms of marriage it accepts, and recognizing Islamic marriages would not require recognizing those that are polygamous. Nonetheless, in today’s geo-political context, Muslim communities should not be expending their energy demanding such recognition. The Muslim community’s civil rights, involvement in the political process, and campaigns for education take greater priority at this time.
Other possible solutions to the issue of unregistered marriages include encouraging civil registration within communities and educating individuals about the benefits of civil marriage registration. In addition, Muslims who enter Islamic marriages that are unregistered may create separate contracts dealing with their finances in the way a cohabiting couple might.
Given the issues facing Muslims, marriage registration, and the potential financial fall-out, it appears that reforming the law of cohabitation may help to bring a sense of clarity in such cases. After all, the case commentaries discussed above all feature cohabitation of various lengths. However, there is no legal position of cohabitees in England and Wales, which seems both crude and outdated. The law should differentiate between those couples who are simply cohabiting versus those who have entered cohabitation via a religiously valid marriage ceremony.
As there exists no recognition of cohabitation rights in the English and Welsh context, a statutory mechanism could be constructed on a tier-system. One of us (Vishal Vora) has suggested that relationships falling short of compliance with the marriage formalities stipulated by law be more accurately classified and the factual matrix taken into account, avoiding the flawed hierarchal approach, which gives preference to certain religious marriages, currently in operation. He suggests a three-tier model for marriage, which includes the following categories: (i) cohabitation, (ii) de facto, and (iii) spousal. The first would be demarcated by a short-term relationship, usually a period less than two years during which time the couple would not have amassed any shared assets, and there would be no children. The second would entail relationships extending for a period of at least two years, during which the couple may have shared assets and children. The breakdown of this type of marriage would be legally treated as very similar to a divorcing couple, with similar financial orders available if necessary. The final tier would be reserved for those couples who consider themselves married because they have undergone a religiously valid ceremony of marriage. In this group, there would be no threshold requirement regarding periods of cohabitation. This model, far from perfect, recognizes the diversity of cohabitation relationships. Similar to the judge’s approach in Akhter, this model would account for the cases in which a designation of “non-marriage” by virtue of a lack of registration seems unjust in a situation where the couple held itself out as husband and wife based on a recognized religious marriage ceremony, cohabitated, and had children together.
The reasoning for these tiers is transparent: they take into account the decision of the parties (in cohabitation and de facto) who have chosen not to marry. In terms of providing financial benefit in particular to those who fall under tier (ii), the model does not seek to treat them as if they actually had married but seeks to relieve the unequal impact of the relationship that may affect children. Likewise, for those falling under the spousal tier, there exists no prescribed duration of relationship, as the couple chose to get married by virtue of a religiously valid marriage ceremony.
If the status of cohabitees were fortified by UK law over a short time frame, the occurrence of unregistered Islamic marriages would be greatly reduced and the legal category of “non-marriage” would revert back to its intended function: for marriages that are purely fictional.
Although English and Welsh marriage law is outdated in its expectation that marriages needs to look like Christian ones with particular “hallmarks,” recent case law demonstrates that courts are moving in the direction of recognizing parties’ intentions or affording the intention greater weight. The law is beginning to view religious ceremonies that are not otherwise civilly registered as marriages based on cohabitation and the parties’ intent to marry. Courts may even be moving in the direction of recognizing religious ceremonies in the interests of serving justice or to avoid unjust results. More individuals will be protected if the courts, and eventually Parliament and other government officials, recognize minority religious marriages without added hurdles that leave parties vulnerable in the case of marital breakdown.
 Marriage Act of 1949, Secs. 26(1)(a-e).
 Ralph Grillo, Muslim Families, Politics and the Law: A Legal Industry in Multicultural Britain (Surrey: Ashgate, 2015), 41.
 Vishal Vora, “Unregistered Muslim Marriages in England and Wales: The Issue of Discrimination through ‘Non-Marriage’ Declarations,” in Muslims in the UK and Europe II (Cambridge: Centre of Islamic Studies, University of Cambridge, 2016), 134.
 “The Independent Review into the Application of Sharia Law in England and Wales, Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty, Feb. 2018,” last accessed Feb. 11, 2018, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/678478/6.4152_HO_CPFG_Report_into_Sharia_Law_in_the_UK_WEB.pdf, 6, 14.
 “Policing and Crime Bill – Committee (5th Day),” last accessed Jan. 1, 2017, https://www.theyworkforyou.com/lords/?id=2016-11-16b.1436.0&s=speaker%3A13559.
 “House of Lords: Arbitration and Mediation Services (Equality) Bill [HL],” last accessed Apr. 4, 2017, http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/151023-0001.htm.
 “Arbitration and Mediation Services (Equality) Bill [HL] HL Bill 12 of 2015-16,” House of Lords, In Focus, last accessed July 21, 2018, http://researchbriefings.files.parliament.uk/documents/LIF-2015-0034/LIF-2015-0034.pdf.
 “Arbitration and Mediation Services (Equality) Bill [HL],” House of Lords Hansard, last accessed Aug. 1, 2018, https://hansard.parliament.uk/Lords/2017-01-27/debates/CB7A1173-F802-42CE-89F8-16B26FF5DFE0/ArbitrationAndMediationServices(Equality)Bill(HL).
 Lucy Carroll, “Muslim Women and ‘Islamic Divorce’ in England,” Journal of Muslim Minority Affairs 17 (1997): 101.
 Grillo, Muslim Families, 56.
 Chief Adjudication Officer v. Kirpal Kaur Bath  1 FLR 8, 36.
 Dukali v. Lamrani  2 FLR 1099, 36.
 Ibid., 33.
 Al-Saedy v. Musawi  EWHC 3293, 12.
 Ibid., 19.
 Ibid., 72.
 Hudson v. Leigh  2 EWHC 1306,  2 FLR 1129, 78.
 Valentine Le Grice, “A Critique of Non-Marriage,” Family Law 43 (2013): 1278.
 MA v. JA  EWHC 2219, 9.
 Ibid., 12, 21.
 Averroës, “The Book of Nikah” in The Distinguished Primer, trans. Muhammad Abdul-Rauf and Imran Ahsan Khan Nyazee (Reading: Garnet Publishing, 1996), 2:3, 20.
 Grillo, Muslim Families, 41.
 Chris Bevan, “The Role of Intention in Non-Marriage Cases Post Hudson v Leigh,” Child and Family Law Quarterly 25, no. 1 (2013): 91.
 Akhter v. Khan  EWFC 54.
 Ibid., paras 83, 92, and 93.
 Ibid., para 20.
 Grillo, Muslim Families, 48.
 Vishal Vora, The Islamic Marriage Conundrum: Register or Recognize? The Legal Consequences of the Nikah in England and Wales (PhD thesis, SOAS, University of London, 2016).
 Two years appears to be the threshold in other laws in England and Wales, for example for the purpose of visa applications for unmarried and same-sex partners. See https://www.gov.uk/government/publications/unmarried-and-same-sex-partners-set05/unmarried-and-same-sex-partners-set05.