Aina Khan is a London-based solicitor with expertise in international and Islamic family law, who runs her own legal practice in London. With three decades of professional experience in Muslim family and matrimonial law, she has worked both in matters of British civil law and private international law. She founded the high-profile “Register Our Marriage” campaign in 2014, and has been a leading advocate both for the reform of English marriage law concerning the civil registration of religious marriages, and for awareness-building surrounding the issue.
Speaking here as a campaigner, Khan here focuses with urgency upon what she calls the “ticking time bomb” of British Muslims failing to register their nikāḥ marriages under civil law. Unregistered marriages, she argues, are the growing norm among young Muslims especially: over 80% of Muslim nikāḥs are unregistered, according to her campaign’s figures. By neglecting to register their marriages, she argues, women (and men also) carry the legal status of co-habitees rather than spouses, putting themselves and their children at risk of social and financial insecurity. If a couple with a registered marriage were to get divorced, she suggests, both parties would be entitled to a share in their collective assets (the joint home, for instance) and rights of child custody; while in the case of a nikāḥ-only couple who terminate this relationship, the courts have few grounds on which to confirm these rights. Women with nikāḥ-only marriages, therefore, are placed in vulnerable situations.
While acknowledging that some women consciously choose not to register their marriages, or take out a nikāḥ-only marriage with a view to “testing” the marriage prior to civil registration, Khan identifies a lack of awareness as the central reason for the prevalence of unregistered marriage. Many women, she argues, believe their nikāḥs to have official recognition, whether through their ignorance or through misplaced trust in the word of their husbands to handle the formalities.
The situation, she argues, is giving rise to an unknown number of what she calls “nikāḥ horror stories,” referring to cases of women being ejected from their homes, deprived of inheritance or their fair share of marital assets, or abandoned internationally by men that they considered their “husbands.” Speaking of the “victims” of unregistered marriage, she argues that women without civil marriages are also leaving themselves open to the possibility of extortion or blackmail, whether by their “husbands,” in-laws, or community bodies such as shari‘ah councils. There is also a recognition that unregistered nikāḥs can cause further problems for British Muslim women overseas, where official documentation alone is often considered to be the sole authoritative indicator of marital status.
Significantly, she notes a further contributing factor to the misery experienced by many: the cuts to legal aid. Since the Legal Aid, Sentencing and Punishment of Offenders Act (2012), funds have been withdrawn from family law litigation, depriving victims of legal assistance. Likewise, she criticises the state’s increased reliance upon out-of-court mediation as the best means of handling family law matters, especially in the wake of the Family Justice Review of 2011. Mediation, she argues, is more likely to benefit the stronger party: in this case, often husbands.
Khan’s statement reflects the common surprise—both within Britain’s Muslim community and also internationally—that English law has adopted so few legal measures to promote civil registration of nikāḥ marriages. This is contrary to the laws implemented both in other European nations, like France and Germany, but also in most Muslim-majority nations. These countries, she argues, have done more to extinguish the kinds of “clandestine marriages” that still exist in the UK.
Reflecting upon the strategy of her “Register Our Marriage” campaign, Khan articulates a three-fold approach to addressing the issue. First is the call for reform of the law. She proposes that the Marriage Act of 1949 be widened to automatically register all religious marriages as civil marriages, rather than, as now, only those of Anglicans, Jews and Quakers: a fair and equal marriage law, she argues, should either cover all faiths, or none. Second, she argues for a public awareness campaign to target the Muslim community, working through “roadshows” and other large events. Third, there is a call for further research and professional advocacy, with a particular proposal for the construction of an international database to identify landmark court judgements and compare international mechanisms for adjudicating religious marriages. These measures, she argues, can offer the enticing prospect of a new ijmāʿ (consensus) for handling the problem of unregistered nikāḥ marriages: in other words, a collective agreement within the Muslim community on the issue.
‘I am a specialist in family law in England and Wales, and I have been involved in grassroots, hands-on, practitioner-based work for about 27 years [with a niche specialism in Islamic family law]. Why is our marital and divorce law in such a shambolic state? Recent years have been a rollercoaster in this area, but unfortunately, we have [as a society] not made the progress in this area that we should have. We have gone backwards and regressed, when instead we should have got our act together. I do not say this lightly. I see the consequences of this every day, and other lawyers will echo that. But I say this out of hope, for the Muslim community is mature and respected in many other areas.
Hardly a day goes by without what my team refer to as a “nikāḥ horror story” [unregistered in civil law]. A woman telephones [our office], very depressed upon discovering that her marriage, whether it has lasted two days or 25 years, has no legal standing whatsoever. [Such a woman] had gotten married in the best of faith, trusting her husband and the imām, thinking that this is a legal marriage […] and now finds that, after divorce, she has no legal rights. In one telephone call just recently, as happens all the time, a women who had been recently widowed, and who was bringing up four children, was called up by solicitors who said that, since there had been no marriage, they had the right to seize her husband’s property that she lived in. Her in-laws had claimed that there was no marriage, and they were taking the property back for themselves.
In another case that came to us, a woman was imprisoned in Syria, and was calling us through a human rights association. She said that she was in jail now, [and] was pregnant, but that her husband, whom she had married in Britain, had the marriage certificate [and] that she had no way of proving her marriage. Since in Syria any fornication or adultery is illegal, she faced being made to serve time in jail for zinā [fornication], and having her baby taken away. With no proof of marriage, she had no defence. Since everyone in Syria has an ID card, and can use it to prove their marriage, the [Syrian] judge refused to believe that, in a country like England in the twenty-first century, her story could possibly be true: that she had got married, had publicly announced the marriage among family and friends, and had photos and a video, but had no piece of paper because her husband always controlled it. I faxed the judge on the day of the hearing to say that this is an all-too-common occurrence, [and that] it happens in the UK all the time, however surprising it was to hear that English law has not dealt with this. Thankfully her story was believed, and she has now been released.
Not every case is as dramatic as these: but the average case might be something like [a woman who says] “I got married and put all my life-savings into the house, and [my husband] has now disappeared and had the house and mortgage in his name.” Or, “[my husband] is blackmailing me by refusing to give me a [religious] divorce, telling me that he will only give me a divorce if I give him the children [or the house, or the savings], and saying that I cannot go the English courts to get a divorce [because there is no registered civil marriage].” This is happening every day.
But how many more [stories like these] are out there? […] We only know about the women who were astute enough to seek access to justice, and my biggest despair is that we legal practitioners only see the tip of the iceberg. When we are absent, it is women’s groups, or family and friends, or the internet, that become the domain for women to seek advice. But no research has been done to the necessary level to give us the numbers.
Many shari‘ah councils blackmail women. The majority view of most shari‘ah councils is that a woman can only ask for khulʿ if she gives up the mahr. This allows the shari‘ah councils to barter the divorce—“you give up the mahr [to your husband], and we will give you the khulʿ.” It is only the reputable ones who will not blackmail like that, and who admit that this is not an issue for them to deal with because it must be dealt with through the English courts.
Cohabitation gives you no legal rights in this country. The woman or man in the street might think that living together for years, with a child, must mean something because the government would have sorted this out.
In fact, we have gone backwards. Twenty years ago, it was perhaps 80% or more of Muslim marriages that were registered; five years ago it was only 50%. But my legal experience, and the word of the imāms, and anecdotal evidence from any British Muslim, will now tell you that the majority of the young people getting married are not legally married. Of the marriages [we] go to, almost none are registered before the nikāḥ. Some may be registered afterwards, but this means that [men] can “test” the marriage. They [consider whether] they are satisfied, whether there are children involved, whether their wife is good to their mother, whether their wife behaves well, and then they decide, “I will ‘reward’ you with a legal marriage.” This is the way now. So we need to realise that this is not just [a matter of] ignorance of the law, as it used to be.
Unregistered marriage is a huge problem. People are sleepwalking into disaster. It is a ticking time bomb. It affects people’s housing, employment, and integration, because if family life is unstable, then everything falters. There is maybe a view that talking about registering a marriage or prenup is “unromantic,” to which I would say to them: “how romantic is a courtroom?”
There is another big narrative here: there is now no legal aid for these cases unless there has been domestic abuse and it has been reported. The government’s golden solution [for marital breakdown] is mediation; but people do not want mediation, because it is probably too late and anyway mediation does not have good outcomes for the weaker party. So there is no easy [legal] solution for [unmarried] co-habitees at all.
Access to justice can’t be just words; it has to be real. How would we like to see these issues resolved? To some degree, the involvement of lawyers just complicates the issue, and adds delays and costs, so we should only act as lawyers if we can find ways to be a force for good and deliver justice quickly and affordably. Meanwhile, English law is stuck in 1949, nearly 70 years ago, when we were pre-migration, meaning that the only three faiths that had to register their marriages were and are the Anglican Church (Church of England and Wales), Jews, and the Society of Friends, or Quakers. While this last category has a population of about 13,500, Britain’s Muslim population was 2.7 million Muslims according to the last census, and is projected to have reached 3 million already, because of a growing youth population and migration. There is great disparity in the state offering protections to three faiths and not the others. My view is that either no faiths should be protected, as in a purely secular system like France, or all faiths must be. We know that [the French system] is not going to happen realistically, [partly] because the Church of England has a certain position as part of the establishment. This means we need another response.
I find the current legal situation inequitable and indefensible. What I am lobbying for with my “Register Our Marriage” campaign (which is a voluntary campaign that has been running for four years), is a two-pronged approach. The first element is to say the following to the government: that we want the law to be brought up to date; that all faiths must be treated equally (defined as per the Charity Commission’s definition), and that the law of the land should ensure that all religious marriages must be registered, just as they are in every Islamic country. You will not find many Islamic countries that allow citizens to have secret or clandestine marriages, and they usually [implement] ID cards that name the husband and make marriage enforceable.
The second element is to build an awareness campaign, supported by the government but also by community enterprises, which gives people information through community events and roadshows. You cannot have a law that comes top-down, since you must have buy-in from the people it serves.
We need to tell people that the solution is registered marriage or nothing. Tell them that they can register the marriage, then put [the certificate] in the cupboard and forget about it. It is that simple, and no one tells the truth about it.
I am also pitching for funding for research to the necessary level. The last research was carried out by the Channel 4 TV programme that aired in November , which had interviews with about 1000 women, and which found that over 80% of under-25s have not registered their nikāḥ marriage. Research needs to extrapolate this across a larger sample.
My own work is now focusing on complex international cases, since there are global families who are going through all this. There will be teams who will be working [to build up information on] case studies [of the handling Muslim family law in courts]. Ultimately, what we all need is an authoritative online repository of agreed-upon knowledge of key test cases [that have been resolved in courts] that we can publicise and work from. We can then have a broad spectrum of knowledge [to solve legal problems in Muslim family law questions]. Let the people on the margins of opinion argue it out on each side, but the broad majority are in consensus. It is ijmāʿ [consensus] that we work towards always.
The government is unlikely to do much alone. But recently they have woken up, in the March 2018 Green Paper, highlighting the need for awareness-building and integration campaigns. They are taking both prongs of the “Register our Marriage” campaign seriously, both supporting awareness-building, and looking to the Ministry of Justice to reform the law. We all have to work together now while they are listening.
We need to understand the nature of the current crisis—every second someone’s life is being destroyed. We need solutions not in five, ten, or twenty years, but today.