Vishal Vora comments on the High Court of Justice of England and Wales’ recent decision on the Akhter v. Khan case. The case is one example of the ongoing examination of the legal status of Islamic marriages and divorces under UK law.
Dr. Vora takes a closer look at Islamic family law in the UK in The Move Toward Cohabitation: Islamic Marriage in England and Wales, co-authored with Hadeer Soliman.
This recent case of the English Family Court highlights the problematic nature of current matrimonial law: there are several routes to marriage but for most minority faith groups, this means marrying twice, once in law to fulfill the civil formalities, and then again religiously.
Following a line of case law where non-compliant Muslim marriages would have been considered non-existence marriages or non-marriages, with no financial consequences flowing, the present case corrects a wrong turn taken by the case law. The Court specifically examines the appropriateness of the term non-marriage to the present case; this case concerned a long-marriage and bore four children. I agree the term non-marriage is inappropriate given the circumstances of this case. It is a matter of time before the repercussions of this case can be assessed, but for the moment, the Court’s position is crystal clear, “…the expression non-marriage should be reserved only to those situations such as acting or children playing where there has never been any intention to genuinely create a marriage.”
Speaking as a lawyer, marriage formalities are a good thing; they bring about certainty and separate who is and is not married. But clearly the two-step mechanism required by the current law is out of date. It was the refusal of this second step, by Mr Khan, that led to Ms Akhter having to incur expensive litigation.
For the maturing British-born South Asian population, there must exist an efficient mechanism to marry in a way that is meaningful to them and recognized by the state, in one step and certainly without the need of going to Court. The celebration of marriage offers minority ethnic members of society the opportunity to remember, reaffirm and recommit to their ancestral traditions and beliefs and for many, the traditional marriage is the ‘real’ one.
Although this case is being cited by the media as providing relief to those other British Muslim women in similar situations, I cannot see the light at the end of tunnel. The facts in this case are highly relevant and it must be remembered, intention alone cannot bring about the status of marriage. Common law marriage is a total myth even though there are tens of thousands of couples who believe it. Under the current law, without a civil registration of marriage, a religious marriage is not legally binding. But perhaps the wide media reporting of this case, along with the Court’s flexible interpretation of the law will send out a warning to those who want their cake and eat it too.
Vishal Vora is a legal academic and English lawyer. He is currently a Research Fellow at the Department of Law and Anthropology, Max Planck Institute for Social Anthropology in Halle (Saale), Germany. His current research focuses on the maturing British Hindu community, examining the relationship between religion and state, in particular the community search for its identity in multicultural Britain. He can be reached at firstname.lastname@example.org.
 Akhter v Khan (2018) 54 EWFC para 81.