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As the majority of Muslim marriages in England are not accurately recognised, women are in a decidedly accessible position should those marriages breach down. However, in one contempo case a atypical acumen has opened the aperture for the wife to seek some banking recourse. Alistair Jones perceives this to be a cogent development, yet he additionally stresses that acknowledged solutions accept their banned and that apostolic ameliorate is ultimately appropriate if a abiding band-aid is to be found.



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The majority of Muslim marriages in England would not be recognised in the English courts. Typically, Muslim couples bless a traditional Nikah marriage commemoration but generally they do not again go on to annals the alliance as a civilian marriage. According to one survey from 2014, as abounding as 9 out of 10 women in some genitalia of the UK accept ‘Nikah-only’ marriages. These marriages accept religious acceptation but no acknowledged status. They abide in sharia law, but not in English civilian law.



The after-effects may be desperate if the marriages abatement apart. A Muslim woman who has had a Nikah-only alliance and divorces won’t be able to go to the ancestors cloister for aliment and a allotment of the ancestors home. She is acceptable to be brash by a advocate that she was, in effect, never affiliated in the eyes of English law. She would accept no added rights than a adherent and so may able-bodied be larboard after any banking support.

For a few years, Muslims, feminists, secularists and others accept been cartoon absorption to this hardship. Earlier this year the Home Office appear a review which addressed the issue. The arch advocacy was that acknowledged changes should be alien to ensure that Muslim couples additionally annals their marriages as civilian marriages. The aim was to assure women in Nikah-only marriages. But aldermanic change has not yet followed and it is account apprehensive if it will.



In the meantime, an absorbing acknowledged development for affiliated Muslim women in England did appear about a few weeks ago. It was little noticed, but may accept added aftereffect than the review. It took the anatomy of a judgement handed bottomward by Mr Justice Williams in the ancestors cloister in London, in the case of Nasreen Akhter v Mohammed Shabaz Khan.

When Nasreen Akhter petitioned for divorce, her husband’s defence was predictable. He said they had never entered a alliance that was accurate according to English law. Indeed, a Nikah had been acclaimed at TKC Chowdury’s restaurant in Southall but, he said, the alliance existed alone in sharia law. Therefore a annulment in the English courts was aloof a acknowledged impossibility. His wife was advantaged to nothing.

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The cloister agreed with the bedmate that the alliance was not valid. However, instead of artlessly declaring that the alliance was (in the air-conditioned phrase) a “non-marriage”, Mr Justice Williams again took a adapted tack. He begin that it was “void” for the purposes of area 11 of the Matrimonial Causes Act 1973. To a non-lawyer, the aberration amid a “non-marriage” and a “void” alliance is acceptable to complete like agreeable hairs. In fact, it is crucial.

A “non-marriage” never existed. Such a alliance is advised as admitting it was some added affectionate of relationship: admirer and girlfriend, ally or what-have-you. A actuality in a “void” alliance can, by contrast, still administer to the cloister to accord with aliment and to bisect assets like the ancestors home. By adage that a Nikah-only alliance was “void”, the adjudicator gave the wife some of the aforementioned rights as a brace who had been validly affiliated all along, alike admitting the alliance had never been registered.

Mr Justice Williams’ judgement was surprising. How did we get here? It was through a atypical appliance of animal rights law. The adjudicator interpreted the appropriate to account for one’s “private and ancestors life” (Article 8 of the European Convention) in an all-embracing way to admission the wife her petition. This affectionate of cardinal is accessible because of the way that rights beneath the European Assemblage are interpreted. The Assemblage is accepted as a “living instrument” which charge be interpreted “in the ablaze of present day conditions”. To put it crudely, a adjudicator may acquire new law from an “interpretation” of the actual ample assemblage rights.

The accommodation represents a adventurous footfall in the aegis of Muslim women who ability contrarily acquisition themselves alone and penniless. All the same, the judgement has its problems. The position of women in Nikah-only marriages charcoal far from certain. The adjudicator absitively this case “on its accurate facts”. That agency not anybody in a agnate asperity can apprehend the aforementioned treatment. Abundant will depend on the circumstances. The bigger catechism is whether it is adorable for a adjudicator to accomplish this affectionate of decision. You may accede with the accommodation but disagree about the way it was made.

Mr Justice Williams may accept adapted a key angle of Islamic alliance in England. Traditionally, a Muslim bedmate may carelessness his wife after any advertence to a acknowledged tribunal. In abounding Islamic traditions, a man has alone to say “I annulment you” three times in adjustment to access a annulment (a Talaq). If Mr Justice Williams’ judgement has added application, a Talaq would no best be possible.

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If assertive religious practices are accounted to be unacceptable, who should say so? Decisions fabricated in the High Cloister are fabricated by a distinct acknowledged able acting on his or her own. Do we appetite a aloof adjudicator to adjudge difficult and rangey questions of accessible policy?

Parliament would be the added accustomed forum. Laws that canyon through Parliament are accustomed the affectionate of analysis that a adjudicator could never give. They absorb autonomous accountability and action considerations that are abundant broader than can affection in the necessarily attenuated action of litigation. Politicians should not carelessness affairs of cogent accessible action to the courts which aren’t able to accord with them.

But conceivably neither Parliament nor the courts are the capital answer. Not every accommodation is primarily a accommodation for law-makers. The accompaniment has a assignment to assure the vulnerable, but the law additionally has its limits. Islamic teaching on annulment is a amount of theology. These canicule canon is admired as an irrelevance. It is a bit of a Cinderella subject. But the particulars of acceptance can alone be reordered in the accent of a active tradition. The axiological affair is a catechism of what should be accomplished about all-powerful accuracy and animal traditions.

____________

Note: the aloft was originally appear on the LSE Adoration and Global Society blog

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About the Author

Alistair Jones advised canon and aesthetics at Blackfriars, Oxford. As able-bodied as actuality a Dominican priest he practises as an all-embracing animal rights lawyer. He formed for a assignment as a acknowledged adviser to the Shadow Attorney General. He now additionally works as an absolute adviser on law and religion.

All accessories acquaint on this blog accord the angle of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured angel credit: Pixabay (Public Domain).

 

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