Islamic lawIslamic divorce in the English courts: human rights and sharia law

By Alistair Jones

Published 30 August 2018

As the majority of Muslim marriages in England are not legally recognized, women are in a particularly vulnerable position should those marriages break down. However, in one recent case a novel judgment has opened the door for the wife to seek some financial recourse. Analysts see this as a significant development, yet they also stresses that legal solutions have their limits and that theological reform is ultimately required if a lasting solution is to be found.

The majority of Muslim marriages in England would not be recognized in the English courts. Typically, Muslim couples celebrate a traditional Nikah marriage ceremony but often they do not then go on to register the marriage as a civil marriage. According to one survey from 2014, as many as 9 out of 10 women in some parts of the UK have ‘Nikah-only’ marriages. These marriages have religious meaning but no legal status. They exist in sharia law, but not in English civil law.

The consequences may be drastic if the marriages fall apart. A Muslim woman who has had a Nikah-only marriage and divorces won’t be able to go to the family court for maintenance and a share of the family home. She is likely to be advised by a lawyer that she was, in effect, never married in the eyes of English law. She would have no more rights than a girlfriend and so may well be left without any financial support.

For a few years, Muslims, feminists, secularists and others have been drawing attention to this hardship. Earlier this year the Home Office published a review which addressed the issue. The principal recommendation was that legal changes should be introduced to ensure that Muslim couples also register their marriages as civil marriages. The aim was to protect women in Nikah-only marriages. But legislative change has not yet followed and it is worth wondering if it will.

In the meantime, an interesting legal development for married Muslim women in England did come about a few weeks ago. It was little noticed, but may have more effect than the review. It took the form of a judgement handed down by Mr. Justice Williams in the family court in London, in the case of Nasreen Akhter v Mohammed Shabaz Khan.

When Nasreen Akhter petitioned for divorce, her husband’s defense was predictable. He said they had never entered a marriage that was valid according to English law. Indeed, a Nikah had been celebrated at TKC Chowdury’s restaurant in Southall but, he said, the marriage existed only in sharia law. Therefore a divorce in the English courts was just a legal impossibility. His wife was entitled to nothing.