The Islamic marriage conundrum:
Report of day conference at Institute of Advanced Legal Studies
David Hodson OBE
I was delighted to be invited to speak at a conference on Saturday, 9 May 2015 to consider the conundrum in the Islamic community, but of importance to our country and specifically our family law, regarding the non-registration of many marriages and marriage ceremonies between Muslims. It was held at the Institute of Advanced Legal Studies. In attendance were many practitioners, including judges, solicitors and barristers, many studying the interrelationship between Islamic law and practice and national law and practice, imams and those running sharia councils and many others concerned with Islamic family matters.
The presentations were very good and varied on different aspects of Islamic marriage and family relationships. But it was the debate amongst the delegates which went to the heart of the issue and the search for solutions. It was also timely as the law commission looks at possible reforms of aspects of marriage law. Representatives were in attendance
The problem
The problem can be easily put. There are many members of the Islamic community who are taking part in wedding ceremonies in England and Wales which do not constitute marriage according to English law. But for the couple concerned, their faith, their family and their particular community, it is marriage. Yet the fact that it is not registered as a civil marriage causes problems for the couple, or sometimes just one of them, during the marriage and particularly if it breaks down.
It was said at the conference that there is no other faith community or similar community in this country which has this characteristic. Research had been undertaken to include Hindu, Sikh, Jew, nonconformist Christian and other faith communities, all of whom have a religious ceremony of marriage coupled with, sometimes at the same time and sometimes separately, a civil law registration. It is only an issue in the Islamic community.
The problem is that either the person officiating the wedding ceremony is not registered to conduct civil weddings, alongside religious ceremonies, or the wedding ceremony occurs in a location which is not registered for civil weddings. Moreover if it is an entirely informal ceremony, i.e. not in a registered building or with a registered official albeit good in the eyes of the Islamic faith, the parties do not also have a civil registration of the wedding. There are some other elements but these are the primary elements
The size of the problem is not accurately known. In part this is because the problem only manifests itself when the lack of civil registration of the marriage becomes a difficulty. Quite often with a happy, lifelong marriage there may be no issue. The consequence of government changes, especially during the 1990s, is that very often cohabitation is treated as marriage for purposes such as welfare benefits and other entitlements. But it can be an issue for pension provision and entitlements on death. If the man is not named on a child’s birth certificate, he does not have parental responsibility as he is not married to the mother. Most evident of all, on relationship breakdown one party, invariably the woman, has no divorce financial claims and is limited to the meagre entitlement as a cohabitant. It is only in these sorts of situations that it is possible to ascertain the extent of the problem.
Nevertheless it was said by one of the delegates involved in a leading sharia tribunal that 40% of the marriages coming before them are not registered. Another delegate said that it was at least one third of all married Muslims in the country are not in registered marriages. The 2011 Census found that there were about 2.6 million Muslims in England, about 5% of the population. So figures of one third or 40% of Muslim marriages not being registered is a large number.
Moreover it was said that in a significant majority of cases either both parties did not know they were not married according to English law or, more probable in most cases, only one party did not know and invariably that was the financially weaker party, often the woman. It was said that, in a number of cases, one party deliberately knew it was not an English civil law marriage and this was the specific intent, although the other party may well not have known. This is deeply troubling.
It is this aspect, where so many within these nonregistered marriages are unaware that they are not married according to the law of England Wales and may well have been deceived or misled into believing that they were legally married, which is at the heart of the concern for possible reform and to protect these people. The question is what measures should be taken. Should there be education and information and from only within the Islamic community for its own community or should there be reform of the law?
Why is it occurring?
This is now more anecdotal but there were some reliable contributions from those working “on the ground” in these communities. There are mixed reasons.
One reason given is that one party wants to avoid the risk of divorce financial claims. Often this is the man but a couple of delegates told of young professional well-to-do women who had deliberately had only an Islamic ceremony only (i.e. without being registered) in order specifically to avoid any divorce financial claims. The worry of course is that the invariable situation is a woman may have given up a career, perhaps even moved country to marry and be with the intended husband, looked after children over very many years at continued sacrifice of her own working and then finds she is without any divorce financial claims. The provision in the Islamic marriage contract, mahr, is often meagre as is likely outcomes from cohabitation law especially if the property had been in the name of the man.
So instead of getting married in accordance with the civil law and then having a marital contract excluding entitlements of the other spouse to make divorce financial claims, one spouse gets married only in accordance with community traditions and thereby excludes divorce financial entitlements altogether.
Another reason given was that the man could then marry other women, not thereby putting his initial marriage at risk of civil divorce or risking bigamy or condemnation.
Another reason was the fear and concerns of the cost of the divorce process through the civil courts compared to the much cheaper divorce process through the sharia council or pronouncement of talaqs; being the divorce process itself rather than the ancillary financial elements.
Another reason, and it was stressed that there are multiple reasons, is that there is significant distrust within the community with the establishment and civil authorities. They do not want to be registered and therefore come within established structures. There was said to be suspicion by some imams and mosques about what might be required alongside being able to conduct registered marriages either as officials or in particular buildings.
It was said that mosques do not have the resources to be registered buildings but it was pointed out that a number of other faiths have places of worship which are much smaller and yet registered
It was said that a good number of Islamic marriages are in people’s homes which under the present law are unlikely to be registered premises. This is why it was the general feeling of the conference that there is the need for review and reform of our marriage law.
Other reasons were given.
Some analysis of the reasons
It is a difficult mix of reasons. Some have little merit and do not deserve special treatment from the law.
If a significant number of people entering into a ceremony in accordance with a faith tradition are specifically not registering to the deliberate disadvantage of the intended spouse, often without her knowledge and awareness of the true position, or sometimes with deliberate misrepresentation, then should English law be imposing within on the faith tradition that the ceremony is in fact treated as civil marriage even if it would not otherwise presently comply with the law? How much should the law be reformed to cover this situation?
In a fairly similar way, if there is such distrust, suspicion and antipathy from those involved in wedding ceremonies, as participants, celebrants or in any official capacity, towards the state and institutions of law and establishment then should English law be answering by imposing civil law marriage upon those ceremonies?
There will be many outside the Islamic community who will be sceptical about the need and justification for reform of marriage law in these sorts of above situations.
Yet there are elements where our marriage law has probably not kept pace with changes in our society including, here, the significant growth of the Islamic community. The last major reform of marriage law was immediate post war. Provided there are the proper surrounding features such as good notice and perhaps public access, why should ceremonies in a private residential property not be good enough as a civil wedding as well? This then puts the burden on the celebrant, a person who hasn’t featured too much in English culture but in other common law jurisdictions has a profession to themselves with high standards and, of course, the burden of being satisfied with all elements of the marriage ceremony and compliance with the law. There was debate at the conference about appropriate criminal penalties for breaches but a greater role of the celebrant might be a way forward.
There was also much discussion about the need for information and education. One delegate valuably proposed that there was a notice on the nikar certificate, of the Islamic marriage, stating that the ceremony did not constitute a valid marriage under English law with perhaps a recommendation that it was separately registered. Other suggestions were usefully made where there could be better information and education resulting in more awareness that the Islamic ceremony itself did not mean that the couple were married in the eyes of the law.
But there are limitations on information and education. As one delegate said, the living together, cohabitation, information palpably failed to get across that cohabitation did not give the same rights as marriage. Research had shown that some of those women who were misled or deceived into believing that they were married in law were professional women, graduates, who would otherwise have been expected to have researched and understood the situation. There is information on the web about this problem. It was said that there is perhaps the gender element of the woman being keener on the ceremony than perhaps the status in law. How far would education and information go if there was still a resistance by many, perhaps mostly men, and a resistance to engage in the registration process?
There was also discussion of the duality of the spiritual and the material i.e. it is the spiritual element of the wedding which really matters. I would agree but would argue that it is not an alternative. The spiritual and the material can go hand-in-hand at a wedding ceremony or one follows after the other.
It must be also repeated that this problem only exists in the Islamic community. It is not within other faith traditions in the many other communities in our country. Instinctively one wants to find a way to help this conundrum within the Islamic community especially to help those who have been left without rights through deception, misrepresentation or simple lack of reliable, independent information. But this must be balanced with the fact that a good part of the resolution of this conundrum lies within the gender issues and the antipathies towards establishment elements which are strong within that community. How this balance goes, whether towards sympathetic reform of English law or a harder approach to require initially evidence of reform within the community is probably the clue to the willingness of government to engage
Presentations from the speakers
Much of the above came from the debate but we also had some stunning presentations. This is only a summary. Some produced papers which may be published and may be available from the speakers direct. The other authors have undoubtedly produced written work on this topic. The following is in the order of the speakers
Ian Edge is one of the leading experts appearing before the family courts in respect of Islamic issues. He started the day by asking the central question namely what is marriage. He looked at the position in some Islamic countries including the fact that there are some where the marriage ceremony is not regulated by law. He explained the position in English law by reference to recognition of foreign marriages. He examined the common law form of marriage. Reference was made by him to the important work by Aina Khan on the “Register your marriage” project. He asked whether the marriage laws from 1949 were still fit for the purpose and thought it was now time for legislative reform, perhaps bringing together the various aspects of marriage law into one comprehensive statute.
Jean Philippe Dequen examined Muslim Personal Law in India and lessons that could be learned from the administration of Muslim marriages from this jurisdiction given its shared history with Britain. He notably pointed out that the indirect recognition of Muslim marriages through contract law can become problematic as to the characterisation of the different Muslim legal concepts (such as the dower – mahr) into Common law legal terminology, and lead to sometimes adverse effects. The same was also put forward in relation to their recognition under freedom of religion fundamental rights provisions.'
Vishal Vora spoke to his research on cases where there was non-registered marriage which, although only a small sample, was incredibly revealing. His paper, when published, deserves much careful study. He set out some of the background reasons why the women had not had their marriages registered. Most of them were well educated and well informed and yet 80% did not know the ceremonies were not marriages in law. One woman reported that she had got married in a hotel which described itself as licensed for marriages and had therefore presumed that the ceremony in the hotel was a civil ceremony even though there was no officiating person registered to do so.
Mr Justice Moylan has particular responsibility for the management and administration of international cases within the Family Division. He explained the public policy and legal policy in relation to recognition of foreign marriages and divorces. He went through the case law on so-called non-marriage law and felt that the net had been cast far too wide and that too many marriages had been found to be non-marriage. He thought it was time for reform
My paper covered a range of issues facing the Islamic family in addition to these problems when the client is first advised that they have no rights at the end of the relationship because they are not married under English law and the huge emotional anger and feelings of betrayal and distrust that are evident. I covered the marriage contract, mahr, and whether, and how, it could be brought up to Radmacher standards. With the greater use of ADR, I asked what could be done to bring the sharia councils to a point where they may be acceptable in law and whether this might involve more use of qualified family law arbitrators. I expressed concern that with so many Islamic countries not signing up to 1980 Hague, thereby increasing the anxiety of potential irrecoverable abductions, fathers were as a consequence having conditions and supervisions imposed upon what otherwise would be unfettered contact. I examined the question of personal laws before the English courts. My paper is attached
Val le Grice QC, barrister at Hare Court, had written an erudite paper on the history of marriage ceremonies, from the 18th century and earlier, specifically then leading to the non-marriage law and giving a critique of whether case law had necessarily gone in the right direction in recent years. In his talk he analysed whether our present marriage law was fit for the multitude of situations, including a critique between the Christian and Islamic positions.
Prakash Shah of the University of London drew attention to the relationship between Islam and Christianity, stating that English law is based on Christian principles and that Islam is opposed to Christianity believing it to be the unbeliever and appropriate to be distrusted. Although the law was now secularised, it still was from a Christian position and consequently there were reasons for Muslims to be concerned that principles of marriage law were diametrically opposed to the personal laws and tenets of Islam. I did not have the advantage of seeing any paper from him but I could not identify his description of our present English law. Many Christians would feel that recent aspects of family law are very much strangers to some Christian principles. I did worry that, undoubtedly unintentionally, he was actually giving reasons for a purposeful distrust at the heart of this Islamic marriage conundrum
The concluding words were from Prof John Bowen from America. He said that sharia law was not foreign law, which of course is true in as far as it is not the law of any national country but it is a law as such in as far as it is a codified personal law. He said there was a conflict in many countries between state law and sharia law. He said there was no such thing as Islamic law: it is the law of various countries which have adapted or taken elements of sharia law, or other elements of Islamic jurisprudence.
Conclusion
It was a fascinating day conference. Of course this is an issue for the Islamic community but it is important for family law to understand and to find appropriate solutions. This has very probably to balance law reform to help those who are vulnerable against the need for the Islamic community itself to find its own solutions and make necessary changes. It is a conundrum only in the Islamic community. Other faith communities do not have this problem and quite contentedly have both the spiritual ceremony and the civil registration, and therefore is another reason for caution when wholesale reform is being proposed.
As solicitors, it is very important that we understand, through reading and investigation, the cultural and faith backgrounds of our clients, the distinctive issues facing them and how we can best help them in the legal situations they present as well as through their distinctive family requirements.
This conference report is naturally my own personal opinions and perceptions on what was said.