This Commons Library briefing paper considers Islamic marriage and divorce in England and Wales and calls which have been made for the law to be changed to require civil registration of all marriagesJump to full report >>
This briefing paper deals with the position in England and Wales.
To be legally valid, a religious marriage (other than marriage according to the rites and ceremonies of the Church of England and the Church in Wales, and Jewish and Quaker marriage) must generally take place in a registered building. Those who wish to celebrate their marriage in a place of worship, or elsewhere, that has not been registered for marriage must go through an additional civil ceremony in order to be legally married.
Marriages which take place overseas will be recognised in the UK in specified circumstances.
Many Muslims in the UK have an Islamic religious marriage ceremony – a Nikah – in an unregistered building and do not have an additional civil ceremony. This means that their marriage will not be recognised as being legally valid.
The husband can end a Nikah marriage by using the “Talaq” procedure which is not court based, whereas the wife will use a different procedure which usually involves an application to a Sharia Council.
The 2018 Independent Review into the application of Sharia Law in England and Wales found that a significant number of Muslim couples do not register their religious marriage as a civil marriage and that, therefore, some Muslim women have no option of obtaining a civil divorce.
The law generally regards parties to a marriage which is not legally recognised as cohabitants, and their marriage as a “non-marriage”. This means that they cannot petition in an English court for a decree of divorce or nullity, and consequent financial provision, if their relationship breaks down. The courts have no power to override the strict legal ownership of property and divide it as they may do on divorce or nullity.
However, in 2018, the Family Court ruled that a Nikah marriage of a specific couple was a void marriage and not a “non-marriage”. Although it is not always strictly necessary to do so, the parties to a void marriage may seek a decree of nullity. One advantage of doing so is that, when granting the decree, the court has the same powers to make orders for financial provision as on divorce. This contrasts with the position for “non-marriages”.
The case in question is subject to an appeal and, in any event, the circumstances of any specific case will be relevant in determining how a particular relationship might be treated.
Sharia Councils deal with aspects of Islamic law and offer advice relating principally to marriage and divorce. Sharia Councils have no legal status and no legal binding authority under civil law. The Government’s position is that people should be free to practice individual religious freedom but that national law will always prevail if it conflicts with religious practices.
Although many people benefit from guidance from faith leaders, there is also some evidence which suggests that some religious bodies might be operating in ways that are discriminatory against women, including, for example, women being invited to make concessions to their husbands in order to secure a divorce.
The Independent Review into the application of Sharia Law in England and Wales, published in February 2018, found evidence of a range of good and bad practice across Sharia councils and made a series of recommendations to Government including:
In March 2018, the Government published its Integrated Communities Strategy green paper in which it welcomed the Review. The Government said that it shared the concerns about the lack of legal protections available following an unregistered marriage and about the allegations of discrimination, and that it would consider limited law reform. The Government also stated that it would support awareness campaigns.
In October 2019, the Government indicated that it was still considering the matter of law reform.
In January 2019, the Parliamentary Assembly of the Council of Europe passed a resolution which raised concerns about the operation of Sharia councils in the UK, highlighting marital issues and Islamic divorce proceedings. The resolution called on the UK to make it a legal requirement for Muslim couples to register their marriages civilly before or at the same time as their religious ceremony, and to ensure that Sharia councils operate within the law.
Commons Briefing papers CBP-8747
Author: Catherine Fairbairn