At AST Hampsons our specialist Islamic Family Law solicitors speak multiple languages such as Mirpuri, Punjabi and Urdu and understand the cultural issues involved.

Muslim Marriage & Divorce

Muslim Marriage & Divorce

Our specialist Family Solicitors have been providing advice on these matters for many years and work closely with Islamic Scholars who can provide unbiased advice and non-judgemental opinions on sensitive issues involved in family disputes. Our strategy is to help and guide you to achieve your goal which is compliant with your Islamic faith and under English Law. We will be with you every step of the way.

 

UK Nikah

Muslim couples get married in England and Wales with many of them only undergoing the religious ceremony of Nikah. The Nikah (or Aqad Nikah) is a marriage contract under Shariah (Islamic) Law, and currently such contracts have no legal standing under UK law. In order to ensure that the marriage is legally recognised in the UK, some couples choose to carry out an additional marriage at a registry office which gives the marriage the legal effect of a civil marriage under the various laws in the UK, (UK Law),

The Nikah ceremony can be conducted at home, in the Mosque or even at a formal wedding venue. These ceremonies are carried out by an eminent member of the Muslim community, known as an Imam. Such marriages, no matter where they are conducted, have no legal status under UK law, and the couple who enter a Nikah have only the same rights as a cohabiting couple. They do not have the same protections that a married couple have, in particular there are financial rights over each other’s assets

The reality is that while the Nikah ceremony is a religious ceremony that is binding under Islamic Law, unless it is accompanied by a civil marriage, then this Islamic marriage is not a recognised marriage under UK law and the parties to the Islamic marriage contract do not acquire any enforceable rights under UK law.

To put it bluntly, those couples who only opt to hold a religious ceremony are recognised as nothing more than co-habitees under UK law. They do not have the same rights as a couple who have undergone a civil ceremony, and who are as a consequence recognised as being legally married. There are very clear distinctions between the legal status of co habiting couples (and this would include under UK law couples who have only undergone the Nikah ) and those who are legally married. Cohabitees have far fewer legal rights than the legally married. For example, a married woman would be entitled to make a claim against her husband’s property even though it was in his sole name whereas a cohabitee could not automatically make a claim against her/his partner’s property if it was in his/her sole name.

 

Nikah Abroad

Nikah marriages that have taken place abroad in countries that have Muslim family law legislation (such as Malaysia, Pakistan and Saudi Arabia ) may be legally valid in the UK provided that the marriage was conducted in accordance with the formal laws of such country. UK law does recognise some foreign marriages.
 

Religious Nikah Ceremony

Couples who decide to only proceed with a Nikah marriage ideally need to take steps to protect the position of their partner and themselves in the event of death, incapacity or relationship breakdown. One way of addressing this is by the parties entering into a Cohabitation Agreement which allows the parties to regulate their financial assets and protect the money or property they have accumulated during the marriage or which they may inherit. Such a Cohabitation Agreement would determine how these assets are to be divided should the relationship breakdown.

A Cohabitation Agreement can also include other provisions (provided they are reasonable), relating to the children, the division of jewellery received during the marriage and may even provide for agreement as to who does the housework and how the bills are paid. In addition, couples can set out Shariah financial principles in such agreements, e.g. as to the lump sum the wife shall receive if the marriage comes to an end and the wife’s right to divorce. It is important that your legal advisors ensure that Shariah principles you wish to incorporate into the agreement are compliant with UK law. Cohabitation Agreements can be extremely useful in the event of a dispute or relationship breakdown and the terms included in the Cohabitation Agreement can be highly persuasive to the courts as evidence of the intention of the parties, provided that both parties have taken legal advice at the time they entered into the Cohabitation Agreement.

 

Nikah Ceremony and Civil Ceremony

Parties who wish to ensure that their marriage is recognised under UK law should also have a civil ceremony. While a few mosques in the UK are registered under the 1984 Marriage Acts to carry out the solemnisation of marriage under UK law, not all mosques have this facility and it is up to the couple to have a separate civil marriage at a registry office at a later date.

There has some media attention around Nikah marriages due to the High Court Case of Akhtar v Khan [2018] in which it was widely misinterpreted that Nikah marriages were finally recognised under UK law under the Marriage Act 1949. This is far from the truth. This was a very fact specific case where the husband had used the Nikah entered into in the UK to persuade the UAE authorities to recognise their marriage as being valid. The Court at no point stated that the Nikah marriage entered into by Mrs Akhtar and Mr Khan gave rise to a legal marriage in the UK and to the contrary the Court declared this marriage to be void. The importance of this declaration of a void marriage is that as a consequence there is a decree of nullity meaning that Mrs Akhtar is entitled to the same financial remedies available to married couples upon divorce. She will, therefore, avoid the position of having to rely upon the limited financial remedies available to a former cohabitee partner whose Nikah is not recognised under the Trusts of Land and Appointment of Trustees when trying to make a claim against a partners property.

Those who intend to have the marriage recognised under UK law may also consider entering into a Pre Nuptial Agreement. We unfortunately live in a society where divorce is a common feature amongst all communities. The advantage of entering in to a Pre Nuptial Agreement before the civil ceremony is that these agreements set out how each party would like their assets to be divided in the event of a divorce. For example, such agreement could include a provision to protect assets/gifts which have been received from family members, as it is quite common within the Muslim community for parents to gift children a substantial amount of money or property assets.

A well drafted Pre Nuptial Agreement can upon the breakdown of relationship, prevent or minimise the matter being litigated through the Court thus saving legal costs as well as the distress of a dispute being carried out through the court process.

 

Muslim Marriage Contract

A Muslim Marriage Contract is a useful written contract entered into at the time of marriage. It is simply a document setting out the rights and responsibilities of both the husband and wife. These are the rights of the parties under Islamic Law.
While such a document has no legal status under UK law, it does provide written proof of an Islamic marriage and sets out the parties’ duties and responsibilities under Islamic law.

A Muslim Marriage contract can include provisions that the husband will not take another wife without the consent of his first wife. More importantly, the contract can provide women with the automatic contractual right to divorce known as talaq-i-tafweez. This is the right of a wife under Islamic Law to initiate divorce proceedings without having to prove grounds for the divorce and without requiring the consent of her husband. The Marriage Contract can also stipulate a wife can retain her financial rights including her dowry given to her by her husband known as mehr.

 

Divorce under English Law and Islamic Talaq/Khulla

In the event that your marriage does breakdown, we can advise you as to how to obtain a civil divorce in England and Wales, if you had a registry office marriage. If on the other hand you only had the Nikah we can help you obtain the Islamic Divorce.

For many women who only have the Nikah, obtaining an Islamic Divorce can be very stressful as they often feel their husband’s control the divorce process. This is not the case at all. A woman can obtain the Islamic divorce by way of a Khulla or Faskh-e-Nikha. The Khulla is the most straightforward process of Islamic Divorce whereby the husband consents to the wife obtaining a divorce against him on the basis she returns the mehr to him. Where the husband is unwilling to give his wife the divorce, the wife has to obtain a Faskh through the Shariah Council.

We are specialists in assisting women obtain the Islamic divorce as we work closely with Shariah Councils to ensure our clients obtain the divorce as efficiently and with little stress as possible. The process is complicated but we take the stress away from our clients and do our best to ensure our clients receive the Faskh within a timescale of 3 to 6 months. We will prepare everything for you to submit the paperwork to the Shariah Council.

Therefore, if you are unsure whether your Nikah is recognised or not, please contact us. We can advise you of the potential options to explore how you can financially protect yourself and your children.  All this can be done by agreement and if not, potentially through mediation or the Court process. If your marriage is at an end and you require a Civil or Islamic Divorce, contact us and we will guide you through the process. Our specialist team speak multiple languages, such as Mirpuri, Punjabi and Urdu and understand the cultural issues involved.

 

Contact Shakeela Bi on 01706 653322 or email [email protected]

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