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Islamic “non-marriage” judgment highlights perils for cohabitants – is law reform on the way?

Court of Appeal judgment clarifies the definition of marriage; it is termed a blow to those who have entered into a religious marriage ceremony but…

A recent Court of Appeal judgment has clarified the definition of a marriage, in what has been termed a blow to those who have entered into a religious marriage ceremony but not a civil one.

Akhter v Khan – High Court Decision

We reported last year on the case of Akhter v Khan. 

It was determined that the parties – who had entered into an Islamic marriage through a ceremony (known as a Nikah) in 1998 but had not had a civil marriage ceremony despite Mrs Akhter’s expectations and repeated requests – had a void marriage because the failure to complete the marriage process was as a result of Mr Khan’s refusal to undertake the process; the Nikah ceremony bore the hallmarks of a marriage even though it was not one, and the parties lived as a married couple for all purposes. This meant that Mrs Akhter was able to apply for a nullity in respect of the void marriage, which would entitle her to the full suite of financial claims that would apply as if the couple had been married and were divorcing.

An Islamic Religious Marriage does not have the status of ‘marriage’ – Court of Appeal Decision

That decision has now, perhaps unsurprisingly, been successfully appealed by the Attorney General (neither Mrs Akhter nor Mr Khan participated in the appeal, having reached a settlement). The Court of Appeal found that the Nikah was a “non-qualifying ceremony” that did not acquire the status of a marriage – void or otherwise – as the correct formalities for a legal marriage had not been complied with and the parties were aware at the time of the Nikah that they would need to have a civil ceremony for the marriage to be legally recognised.

Lack of protection for cohabitants

The decision highlights the lack of protection for cohabitants upon relationship breakdown. Many women, such as Mrs Akhter, who have entered into a religious-only ceremony under the impression that a civil ceremony would follow, find themselves without any financial claims against their ‘husband’ following separation, sometimes after many years of living together as a “married” couple. No matter how the couple viewed their relationship, for all legal purposes, they are cohabitants – not spouses.

This is significant and mirrors the situation that unmarried couples can find themselves in after the end of a relationship. Sadly, many people remain unaware that claims in such cases are, except for narrow exceptions, limited to direct financial contributions to their family home or other properties, with no claims at all in respect of pensions or to spousal maintenance. The pervading myth of the ‘common law marriage’ is perhaps to blame for this, with research by family lawyers’ group Resolution revealing that 46% of people wrongly believe in this fiction.

Is law reform going to happen?

Cohabitation is the fastest growing family type in England and Wales, with 3.3m unmarried families living together. Law reform is sorely needed to ensure that someone who has sacrificed their career to care for the children is not left destitute following relationship breakdown. It would allow couples recourse to a remedy to divide their assets and income fairly, in a way that reflects the reality of their relationship and shared financial circumstances.

The Cohabitation Rights Bill, which has been introduced in the House of Lords, would entitle qualifying cohabitants to make claims for lump sums, property transfers or sales, and for a share of their partner’s pensions. It is to be hoped that this Private Members Bill receives cross-party support on its journey through parliament so that the law in England and Wales can be finally be brought up-to-date to reflect the reality of modern family life and bring us into line with other jurisdictions such as Scotland, Canada, Australia, New Zealand and Sweden, which have already introduced similar statutory schemes.

The reality is that without the government agreeing to make time for this bill to proceed, separating cohabitants across the spectrum of society will be left facing potential injustice, unfairness and, in some circumstances, insufficient financial resources to live on.

If this case raises issues for you or you would like to discuss the matter further please contact Emma Collins, Emma.Collins@weightmans.com or Matthew Taylor, Matthew.Taylor@weightmans.com.

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