Sharia Series; void, voidable or non-marriage?
There are currently 3,868,133 Muslims in England and Wales (6.5% of the population.) It’s therefore no surprise that the Law Commission have produced a report with recommendations to reform weddings law, which addresses the issues faced by many Muslim couples who have non-qualifying ceremonies.
Part III of the Marriage Act 1949 outlines the criteria required for a marriage in England and Wales to be solemnized and valid.
For civil marriages, the following is required:
- Notice to marry given;
- Open doors;
- Two witnesses;
- Prescribed form of words;
- Presence of Superintendent Registrar and Registrar;
- In a registered building.
Islamic marriages which take place in England and Wales may also be solemnized under the legislation, but they must follow the same criteria. Some mosques in England and Wales have been registered for marriages under the Marriage Act.
The Arabic word for marriage or wedding is zawaj (zo-wah-ij), deriving from the Arabic word zawj (zaw-ij) meaning pair.
An Islamic marriage ceremony is known as a nikah ceremony in which the parties enter into a contract of marriage, the contract being known as the nikah nama.
For an Islamic marriage to be a valid religious ceremony, the following is required:
- Mutual consent of the bride and groom;
- A legal guardian for the bride (known as a Wali) and usually the bride’s father;
- Two adult Muslim witnesses (2 male, or 1 male and 2 females);
- An Imam to conduct the ceremony.
The bride is also entitled to an obligatory gift or contribution from the groom, as a mark of respect for the bride and as recognition of her independence. This is known as mahr, and is not a dowry.
The marriage ceremony is a formal ceremony which is performed by an Imam or other authorised religious figure. The Imam will perform a ceremony known as a khutba (kh-oo-t-ba) to join the bride and groom together in marriage. During the ceremony, both the bride and groom will be asked to repeat the word Qubool (Kuh-boo-l) three times, meaning “I accept”.
In circumstances where an Islamic marriage is performed in England and Wales, and it does not meet all of the necessary civil marriage criteria to be lawfully recognised, it may be non-qualifying, void or voidable.
If an Islamic marriage is performed in England and Wales, without meeting all of the necessary criteria to be registered as a civil marriage, it is generally a non-qualifying ceremony. This means that the ceremony has not resulted in a legally recognised marriage as it did not comply with the necessary legal formalities. The parties to the marriage will be cohabitants and unable to make claims afforded to legally recognised married couples in regard to divorce and financial remedies.
Parties to a void marriage are still able to apply for financial remedies, as if they were legally married, however their marriage will be treated by the courts as never having taken place from the outset. A nullity of the marriage is not necessary, however obtaining one can confirm that the marriage was never valid. Furthermore, obtaining a decree annulling the ‘marriage’ will allow the parties to make an application to the court for financial provision.
The matter of whether an Islamic marriage is void or a non-marriage was considered in the notable of case of Ahkter v Khan  EWCA 122. The parties had an Islamic marriage ceremony at a restaurant in London in 1998. The parties had intended also to have a civil ceremony, compliant with English law, however they did not. The wife petitioned for divorce and in the Family Court Williams J granted nullity, noting that these ceremonies are to be considered on a case by case basis and when considering all of the requirements and legal formalities holistically it was understood by both parties that they were embarking on a process of the marriage being registered and lawful, through a civil ceremony.
The husband appealed, and in 2020 the Court of Appeal overturned the decision confirming that the Nikah alone was a non-qualifying ceremony and that it did not meet the criteria for a void marriage, some of which are:
- The parties are too closely related;
- Either party being already married;
- Either party being under 18 at the time.
In contrast, a voidable marriage is one which is seen as valid until a decree absolute of nullity is pronounced. In these types of marriages, the decree will annul the marriage only in respect of the time after the decree has been made and it is treated as to have existed until that time. Again, the decree will give rise for the parties to make an application to the court regarding financial remedy.
Similarly, the grounds for a voidable marriage are set out in legislation. Some of which are:
- Incapacity or wilful refusal to consummate;
- Lack of consent;
- Pregnancy (with someone other than your spouse at the time of marriage).
Law Commission Report
It’s clear to see why the Law Commission of England and Wales has published recommendations to reform the law of weddings. The recommendations are made to try and limit the restrictive requirements necessary for a marriage to be legally recognised and to allow couples to have more freedom in deciding how to celebrate their wedding. The intention from the Law Commission is that a revision to the law will mitigate the unfairness faced by certain groups, such as Muslims, Humanists and Hindus, whose religious marriages are not recognised in law as other religions are.
In short, the report by the Commission recommends the following:-
- Couples to be able to give notice of their weddings online, rather than in person;
- Notices of the wedding to be published online, rather than solely in person;
- Couples to be able to have religious wedding ceremonies, without prescribed words; and
- Choice given to the location of the marriage, including outdoors in places unconnected with a fixed building.
It is now for the Government to review the Law Commission's recommendations, as set out in their report and respond to the proposed changes. It is hoped that with the introduction of new rules, there will be more certainty and choice for couples who wish to have religious ceremonies regarding the validity of their ceremony and marriage.
You can find out more about the report here: Weddings - Law Commission