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Cohabitation and Religious MarriageStatus, Similarities and Solutions$

Rajnaara Akhtar, Patrick Nash, and Rebecca Probert

Print publication date: 2020

Print ISBN-13: 9781529210835

Published to Policy Press Scholarship Online: January 2021

DOI: 10.1332/policypress/9781529210835.001.0001

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From Regulating Marriage Ceremonies to Recognizing Marriage Ceremonies

From Regulating Marriage Ceremonies to Recognizing Marriage Ceremonies

Chapter:
(p.85) Seven From Regulating Marriage Ceremonies to Recognizing Marriage Ceremonies
Source:
Cohabitation and Religious Marriage
Author(s):

Rehana Parveen

Publisher:
Policy Press
DOI:10.1332/policypress/9781529210835.003.0007

Abstract and Keywords

This chapter argues for a post-ceremony registration system for weddings, similar to the registration of births and deaths, which would enable varied forms of marriage ceremony to be legally recognised. It contextualises ‘the Muslim problem’ and examines Muslim attitudes towards the nikah ceremony. It argues that individuals should be able to determine for themselves when and how they marry and that the state’s interests can be protected by such a post-ceremony registration system.

Keywords:   Muslim marriages, Marriage ceremonies, Registration of marriages, Family law reform

Introduction

English law has developed a complex set of rules and regulations to determine what types of marriage ceremonies create the legal status of ‘marriage’. Failures to fulfil these legal requirements have led to confusing outcomes as courts grapple with the consequences of non-compliance. The current rules and regulations do not reflect the diverse ways in which members of Britain’s multi-cultural, multi-ethnic, multi-religious and nonreligious society enters into marriages. Muslims in particular have been highlighted as a community who are increasingly undertaking marriage ceremonies that do not comply with the requirements of English law, resulting in Muslim couples being held to be parties to what is now termed a ‘non-qualifying ceremony’.1 It is proposed that Muslims themselves should be able to determine when and how they marry and the state’s interest is protected by a post-ceremony registration system, not unlike the registration of a birth or death. A liberal state (p.86) should not be regulating the ceremonial aspects of a marriage; rather its interest lies in recognizing a marriage and providing protection to its citizens against harm or other vulnerabilities. Such protection can be achieved without the policing of the marriage ceremony itself.

The ‘Muslim problem’

It has become increasingly recognized that within a diverse, multi-ethnic, multi-religious and multi-cultural society, members of that society will wish to enter into marriage ceremonies that reflect the cultural, religious and social habits of the communities with which they associate and interact (Law Commission, 2015). For most people, though not all, a marriage ceremony is a public proclamation of their relationship and individuals may wish to make this proclamation in a manner which is meaningful to them. English law has historically concentrated its energies on establishing formalities in order to regulate the steps up to and including the ceremony itself as a method for determining which marriages are granted the status of a legally recognized marriage. English law requires the parties to have taken specific steps prior to the marriage ceremony from which it can be ensured that they, among other things, were above minimum age requirements, not already validly married and not otherwise precluded from marrying each other.2

In focussing on the policing of the ceremony itself, English law has, perhaps understandably, aligned itself with a Christian ceremony of marriage as the benchmark from which to judge whether a particular ceremony amounts to a legally recognized marriage (see Vora, this volume). Successive Marriage Acts have been modelled with Christian denominations in mind, which has inevitably resulted in rigidity in the law, thus making it (p.87) more difficult for an alternative ceremony or set of rites to be recognized as a valid ceremony capable of conferring the legal status of marriage. The formality rules have been criticized as being unnecessarily complex, leading to confusing outcomes where there have been breaches (Gaffney-Rhys, 2010, 2013; Le Grice, 2013; Probert, 2002, 2013; Vora, 2016b; O’Sullivan and Jackson, 2017; Probert and Barton, 2018; Probert and Saleem, 2018). Breaches of the formality requirements can lead to a marriage being declared void,3 what is now termed a ‘non-qualifying ceremony’,4 or, depending on the nature of the breach and the mental state of the parties, valid.5 Much of the recent case law around ‘non-qualifying ceremonies’ has concerned Muslim marriage ceremonies where none or very few of the formalities of English law have been observed. This, coupled with academic research and media reports, suggests that we are seeing a specific trend emerging among Muslims in failing to fulfil the requirements of English law (True Vision, 2017; Home Office, 2018: 17). Traditionally Muslims would meet the requirements of English law by undertaking a separate civil ceremony in addition to the religious one, in effect getting married twice (Pearl and Menski, 1988). What some Muslims appear to be doing now is to get married only once, and that once is by virtue of the religious ceremony (Akhtar, 2015; Vora, 2016b; Parveen, 2018b).

The narrative around Muslim marriage practices has been to present them as uniquely challenging in this context. In The independent review into the application of sharia law in England and Wales (Home Office, 2018), little attempt was made to situate Muslim practices in forming intimate relationships (p.88) within the wider context of British society and the manner in which non-Muslims are entering into formally or informally recognized relationships. There are two problematic aspects to this narrative. The first is the notion that Muslim marriage ceremonies or Muslim marriage practices more generally are so different from any other marriage practices that their accommodation within English law is almost impossible. The second is the assumption that the failure of Muslims to enter into recognized marriages is indicative of a lack of integration within British society (Casey Review, 2016). As a consequence, the state’s response is likely to be targeted explicitly towards Muslims only and, at best, aimed at encouraging Muslims to marry in the manner in which the state currently requires. At worst, the state will introduce legislation compelling Muslims to enter into legally recognized marriages with the threat of criminal sanctions if they fail to do so (Home Office, 2018).6 In either case these are very narrow and unimaginative solutions which fail to pay attention to wider developments in family law.

In the next section this narrative is explored in more detail and some of the complexities it raises are highlighted.

Framing this topic and the complex issues to navigate

It is clear that there is an emerging trend whereby some Muslims are entering into nikah-only marriages (Shah-Kazemi, 2001; Bano, 2004, Douglas et al, 2012). However, it is far from clear how widespread this trend is or, more importantly, why Muslims might be choosing this route. Most of the academic research has examined nikah-only marriages within the context of relationships that have broken down, very often as part of an exploration of the role of shari’a councils. Additionally, much of the qualitative data has come only from women. While their (p.89) experiences provide an important source of data, the research to date offers a very specific and narrow lens.

The overall picture is incomplete if there is little information from unmarried Muslims contemplating future relationships, or from those who are happily ‘married’ about the type of marriage that they are in and why, or more specifically from Muslim men. Research specifically aimed at investigating nikah-only marriages more broadly is beginning to emerge (Akhtar, 2015, 2018a, 2018b, 2018c; Vora, 2016b; Uddin, 2018). In my own research, a particularly revealing category, although very small, was that of Muslim women who had undergone both a civil and Islamic divorce. The women’s reflections on how their experiences of the civil system may impact on their choices for future marriage arrangements were perhaps surprising. One would expect this category to be the most informed as to the benefits of a civil marriage, and yet there was overwhelming support for nikah-only marriages in any future relationship arrangements (Parveen, 2017, 2018b). This is supported by Uddin’s separate study, in which he also identified Muslim women who had previously been divorced via the civil courts subsequently choosing to enter into nikah-only marriages (Uddin, 2018).

In exploring whether Muslim marriage arrangements present a unique challenge to English law Nash draws together the evidence which supports the ease with which a nikah may be entered into (Nash, 2017). In contrast to the formalities of English law, a nikah does not require a registered building, nor does it require an authorized person to register the ceremony (Ali, 2008; Tucker, 2008; Black et al, 2013; Edge, 2013). Indeed, many of the formalities laid down by English law either before or at the time of the ceremony are irrelevant to the validity of a nikah (Parveen, 2017). This, coupled with the notion that for most Muslims it would seem that they consider themselves ‘married’ by the nikah, indicates that Muslims are sufficiently satisfied as to the legitimacy of their relationships without necessarily obtaining state approval (Bano, 2004; (p.90) Akhtar, 2015; Vora, 2016b; Parveen, 2018b; Uddin, 2018).7 The ease of the nikah ceremony does present challenges to English law should it wish to accommodate the actual nikah ceremony into its current framework (Edge, 2013; Nash, 2017; Parveen, 2017).

If, as the current body of research seems to indicate, the nikah ceremony provides Muslims with legitimacy and they, in effect, attribute to themselves the status of marriage, at least among their own social and familial circles, then the question to ask is: why would Muslims undertake the additional formalities to obtain state recognition? Muslim marriage practices must be understood within the wider British context of increasing cohabitation among non-Muslims,8 a greater focus on autonomy and choice, increasing privatization of family dispute resolution (Diduck, 2016) and a greater recognition of rights within the family unconnected to a legally recognized marriage (see Miles, this volume). Akhtar argues that contextualizing Muslim family practices within wider social norms indicates that religious-only marriages are signs of cultural transitions for Muslims and of ‘integration’ rather than ‘isolation’ (Akhtar, 2018a). If state recognition of a relationship is unimportant to many British non-Muslims who cohabit rather than enter into a state-sanctioned marriage, and English law itself is slowly establishing rights and duties unconnected to marital status, why would a legally recognized marriage be any more important to Muslims?

Nikah-only marriages that have been declared either non-marriages or void marriages occupy a particularly anomalous (p.91) position. The research tells us that these marriage ceremonies are recognized as legitimate by the couples who enter into them and by the communities in which they participate (Shah-Kazemi, 2001; Bano, 2004, 2012; Akhtar, 2015, 2018a, 2018c; Parveen, 2018b; Uddin, 2018). The couples expect to undergo a religiously sanctioned process for the termination of their relationships, whether by the husband pronouncing a talaq, or the wife accessing a shari’a council, or some other method. This is all irrespective of whether the state recognizes these relationships.

While the law has not to date recognized nikah-only marriages as valid, even this cannot be said with absolute certainty as case law continues to evolve.9 The answer to the question of why Muslims may be entering into nikah-only marriages without the protection of a civil marriage is as least as complex, if not more complex, than asking why non-Muslims are cohabiting rather than marrying. There are multiple motivations (Akhtar, 2015, 2018c; Uddin, 2018) and for many couples, whether Muslim or not, this issue only becomes important at the time of dissolution. The multiple motivations of Muslims have not yet been fully explored. From the limited research that we have, we do know that for some Muslims it is a choice not to be bound by state regulation, for others it is a lack of knowledge as to the requirements of state law (Shah-Kazemi, 2001; Bano, 2004, 2012; Akhtar, 2015; Parveen, 2017; Uddin, 2018). For many it seems the civil ceremony does not have sufficient priority to warrant the additional time and effort needed to organize it and for others still there are misunderstandings or incorrect assumptions as to either the status of the nikah or the extent to which they believe the law will protect them in the event of a separation (Akhtar, 2015; Vora, 2016b). For some a combination of these factors may be in play, rather than one single determinative (p.92) reason. With further research we may find other motivations or impediments that deter Muslim couples from entering into legally recognized relationships.

If the framing of this topic is broadened to explore Muslim marriage practices as part of a wider investigation into the multiplicity of ways in which British couples, whether Muslim or not, are forming intimate relationships, and it is investigated as part of the law’s response to shifting notions of ‘family’ then Muslims are not unnecessarily exceptionalized. There are dangers in attempting to find ad hoc solutions to what are perceived to be discrete issues.10 One can investigate the detailed and varying practices of Muslims in order to fully assess how and why Muslims make choices around the manner in which they enter into intimate relationships, while at the same time paying attention to the wider social and legal developments influencing those practices.

Identifying the state’s interest and objectives

In its scoping paper, the Law Commission not only highlighted the ‘thriving and largely unregulated market in celebrants conducting non-legally binding marriage ceremonies’, but also pointed out that the practice of religious-only marriages has been highlighted within Muslim communities (Law Commission, 2015: 1.34). Further, it advocated for a review of marriage laws, with specific attention to be paid to a number of areas, one of which is the formalities for entry into a state-recognized marriage (1.36).

Before attempting to address how the law should be changed there must be clear key objectives that underpin the rationale for the proposed changes. Probert has noted the cultural, social and linguistic diversity of today’s society (p.93) (Probert, 2013). The Law Commission readily accepted that there is a demand for alternative options and a wider range of locations at which marriage ceremonies may be conducted and suggested a thorough review of the law as a whole in order to provide a system that is both coherent and fair to all (1.36). It also set out four key principles by which reform ought to be guided: certainty and simplicity; fairness and equality; protecting the state’s interest; respecting individual wishes.

These four guiding principles are important as they indicate what a marriage system should achieve, leaving significant room as to how this can be achieved. At the time of writing, the Law Commission has begun its review of the laws around how and where people marry in England and Wales. It has added a fifth guiding principle, that of ‘removing of any unnecessary regulation of venues which can hamper choice and increase the cost for couples’.11 As pointed out by Sandberg, while this review is to be welcomed, the terms of reference appear to indicate limited reform of the law.12 It would appear that the review will not be carrying out an investigation into the role of marriage as an institution or a wider exploration of adult relationships. In addition, the Law Commission has made it clear it will not make recommendations that might undermine the immigration provisions around ‘sham’ marriages or the provisions around ‘forced’ marriages. Nevertheless, there is considerable scope for reform. While the reforms may not challenge why the state chooses to elevate the status of marriage, there is significant scope to improve the current system if we proceed on the assumption that the state ought to (p.94) play a role in determining marriage validity. While I concede that there are arguments in favour of severing the state’s role completely from determining who is or is not married (Bonthuys, 2016), this chapter is written on the basis that the state will continue to retain an interest in the status of marriage and as such I make proposals for minimal state intervention in relation to the marriage ceremony.

As noted earlier, Muslims marriages can present a challenge for English law, largely due to the ease with which they can be entered into and sometimes the ease with which they are terminated. The interests of the state are not necessarily the same at the point of entry into a relationship as they are at the termination of a relationship (Edge, 2013). At the point of entry I would argue the state’s interests lie in establishing the minimum requirements for a valid marriage, ensuring that the state knows who is married and in guarding against marriages of those who are considered incapable whether due to age or other incapacity.13 Arguably, the state also has an interest in encouraging marriages but none of these interests require the state to dictate the ceremonial aspects of the marriage ceremony (Pywell and Probert, 2018; Probert, 2018c). The state can encourage, recognize and support the institution of marriage without prescribing every aspect of the marriage ceremony.

A proposal for reform: a registered marriage in the true sense

Many times Muslims have been encouraged to ‘register’ their nikah marriages, whether through awareness-raising campaigns, word of mouth, or by mosque or other processes that encourage ‘registration’ of marriages; it is the language of ‘registration’ that is often used as part of any awareness-raising campaign (Register Our Marriage campaign; Home Office, 2018). The (p.95) implication is that ‘registration’ will allow the parties to convert the nikah into a legally recognized relationship. This mistaken notion is referred to by Uddin’s participants (Uddin, 2018). In fact, what Muslims are being asked to do is to undertake a separate civil marriage ceremony and comply with all of the necessary legal formalities as though they are not married. There is no method by which Muslims can simply ‘register’ their nikahs. What I am suggesting is the introduction of a registration system that would allow Muslims to register their nikah marriages without the necessity for another ceremony. The state provides for the registration of many significant events such as the birth of a child, the death of any human being, the registration of a civil partnership, the establishment of ownership and property rights, and even the registration of rights such as parental responsibility for a child. These rights are created and registered without the state dictating the ceremonial aspects of each. In addition, documentation such as passports and driving licences are all obtained by means of registration systems. Each method of registration has various checks and balances in place to minimize fraud and abuse. Marriage is no more significant as an event and the state should be moving towards a system that allows for the registration of marriages with minimal regulation as to the actual marriage ceremony.

Practicalities

In order to protect against abuse the law can still retain minimum requirements as to who is eligible to marry. In registering the marriage either or both parties may register and they must provide the following:

  • full details of the parties together with identification documentation;

  • proof of immigration status;

  • proof of residency;

  • (p.96) • documentary evidence of marriage such as a nikah certificate;

  • details of the ceremony (date/time/venue) and of the celebrant who conducted the ceremony (if any);

  • any change of name documentation if parties’ names have been changed;

  • name, address and contact details of at least two adult witnesses to the ceremony;

  • any other evidence to support the existence of the ceremony such as photographs, videos and so on;

  • if either party is divorced or widowed, evidence confirming the same (that is, divorce certificate or death certificate of a former partner);

  • (payment of a fee).14

The application for registration is to be made online through a centralized system. When the application is received, an officer will carry out the necessary checks to ensure that they are satisfied with the evidence. If the officer has any doubts or concerns they may request further evidence or require the parties or their witnesses to attend a face-to-face interview. Once the officer is satisfied with the evidence, they will post an online notice (and notify the parties) that this marriage will be officially registered after a set period of time. The online notice acts as a public notice and any member of the public may search the online site for these notices. Once the notice period has expired the officer registers the marriage and parties receive an official certificate confirming the same.

If only one party applies for registration then the officer will investigate and allow the other party an opportunity to agree or dispute the registration. A party may only prevent the registration of a marriage if they are arguing that no marriage ceremony took place. If a ceremony has taken place then either party should have the choice to register it. There ought to be (p.97) an internal process for dealing with a dispute and if the internal process cannot resolve the dispute then the marriage is not registered and parties may apply to a court to appeal against the decision of the registrar’s office. A registered marriage will require a divorce to terminate it.

Notice requirements and the role of an authorized person/registrar

An online system can still retain the notice periods prior to the registration of marriages albeit after the ceremony itself. The online system can in fact provide for a centralized system of notice that is easily accessible by members of the public. More controversial perhaps is the suggestion that a marriage ceremony takes place without an authorized person conducting it or without the presence of a person authorized to register it. It is argued that one of the primary reasons for having an official either conducting or present at marriage ceremonies is that the official can stop a ceremony if they have any concerns as to parties’ capacity or concerns around ‘sham’ or ‘forced’ marriages. However, one must question whether this is an effective system for the prevention or detection of such marriages. Following a freedom of information request about suspected sham marriages, the Home Office provided the following information:15 in 2014 it received 3,210 referrals made by Registrars in England and Wales, 2,476 operations were carried out (not all as a result of Registrars’ reports), and 1,748 arrests were made. The Home Office was unable to provide any further information so it is not known how many arrests resulted in actual convictions. As a result, there (p.98) is no real way to ascertain how many actual sham marriages occurred. In the same year there were 247,372 marriages between opposite-sex couples and a further 4,850 marriages between same-sex couples.16 This means that the reporting of suspected sham marriages by Registrars is, comparatively speaking, only occurring in a very small number of marriage ceremonies. One might query, therefore, whether the use of a registrar or appointed official at every marriage ceremony is the most effective and efficient method for detecting problematic marriages.

Challenges to address

I recognize that a proposal for an online registration system is not without its challenges. In this section I briefly address these.

Unregistered marriages

With the online registration system that I am proposing there are two separate issues to address. First, a marriage may be unregistered due to the registration officer not being satisfied with the evidence that a marriage ceremony has taken place, as a result of which the registration officer refuses to register the marriage. Depending on the reason for refusal it is possible that this decision may be subjected to an appeal before a court. Legislation could set out in clear terms the grounds upon which an appeal may be made, though I recognize that this will need careful framing.

Second, a marriage may be unregistered because parties do not attempt to register it. I do not propose that parties are obligated to register. An unregistered marriage is simply that. It does not attract the legal status of a marriage and nor (p.99) does it require a civil divorce to terminate it. It is possible that as part of the provisions of any Cohabitation Bill, parties to an unregistered marriage would automatically qualify for the purposes of the limited financial settlement that may be made available to cohabitees on separation. As mentioned earlier, it is difficult to identify improvements to the legal framework of marriage without placing those improvements within the context of regulating intimate relationships more generally. It is arguable that an unregistered marriage falls somewhere between cohabitation and a legally recognized marriage (Akhtar, 2018a) and therefore may be given the status of a form of cohabitation that is automatically recognized by any forthcoming legislation on cohabitees. Without the introduction of financial protection for cohabitees, parties to an unregistered marriage will either require specific statutory regulation or will find themselves in the same financial legal vacuum currently occupied by cohabitees and parties to a non-qualifying ceremony.

Time period for registration

Another matter to consider is the time period that ought to be available to parties in order to register their marriages. There are obvious advantages to requiring the parties to register within, say, 12 months of the ceremony as it will ensure that evidence is more likely to be available to confirm that a ceremony has taken place. But it is also evident from the case law that often issues around the legal recognition of a marriage do not come to light until the breakdown of the relationship, which may be many years later.17 In such cases, particularly where hardship may follow, it would be useful if registration were to (p.100) be permitted outside the set time period. This would need a statutorily regulated discretion.

A religious divorce taking place prior to the registration of a marriage

A final challenge is the impact of any religious or other termination of the marriage prior to registration. This is particularly relevant for Muslim women who may be on the receiving end of unilateral talaqs before they have had the opportunity to register their marriages. In effect what is being asked here is whether a religious marriage that has been terminated as far as its religion is concerned can still be legally registered. On the face of it, the answer would appear to be yes. The issues that the law is seeking to promote and protect on marriage recognition are not necessarily the same as those on termination of a relationship. English law can recognize a form of marriage without recognizing particular forms of divorce.18 The full implications of this would need to be explored in more detail and it is also one of the reasons why limiting the time period within which registration must take place would make sense.

Conclusion

A marriage registration system that makes effective use of technology while minimizing state intervention in the policing of marriage ceremonies will meet the objectives and guiding principles set out by the Law Commission. For Muslims this proposal is based on a notion of partnership (p.101) between communities and the state. It acknowledges Muslims as ‘authors and subjects of more than one legal and cultural system’ (Shachar, 2005). Muslims themselves determine how and when they are married and the state gives due recognition to their marriage practices. By removing the state’s control over the marriage ceremony the state would give greater freedom to Muslims and non-Muslims alike, allowing them to manage their ceremonies in accordance with their religious or other beliefs. The state would also ensure that the recognition of a marriage is a procedural process rather than state management of a ceremony.

Notes:

(1) Following Attorney General v Akhter and Khan [2020] EWCA Civ 122.

(2) Matrimonial Causes Act 1973, s 11.

(3) Akhter v Khan [2018] EWFC 54.

(4) Attorney General v Akhter and Khan [2020] EWCA Civ 122. Formerly termed a ‘non-marriage’: Shagroon v Sharbatly [2012] EWCA Civ 1507; Dukali Lamrani [2012] EWHC 1748 (Fam); El Gamal v Al-Maktoum [2011] EWCH 3763 (Fam).

(5) MA v JA and the Attorney General [2012] EWHC 2219 (Fam).

(6) See also the ‘Register Our Marriage’ campaign.

(7) There has been no academic research which has indicated Muslims do not consider themselves married despite having entered into a nikah. Overwhelmingly the research supports the notion that Muslims consider themselves to be ‘married’ or at the very least in a relationship that has religious, cultural and familial legitimacy, irrespective of any state recognition.

(9) See Akhter v Khan [2018] EWFC 54; Attorney General v Akhtar and Khan [2020] EWCA Civ 122.

(11) Blog post, ‘Law Commission begins work on weddings reform’, https://www.lawcom.gov.uk/law-commission-begins-work-on-weddings-reform/ (accessed 30 August 2019).

(12) Blog post, ‘Criminalising imams will not solve the problem of unregistered marriages’, https://sandbergrlaw.wordpress.com/2019/07/01/some-initial-thoughts-on-the-law-commissions-project-on-weddings/ (accessed 30 August 2019).

(14) I am not advocating a fee, however, it is to be expected that the state will require payment of a fee as it does for registration of any type.

(15) Freedom of Information Request 34008 response dated 3 February 2015, https://www.whatdotheyknow.com/request/247546/response/613246/attach/3/34008%20Sheppard%20Carradine.pdf?cookie_passthrough=1 (accessed 30 August 2019).

(16) ONS, ‘Marriages in England and Wales: 2014’ (ONS, 2017).

(17) Given that there is an absolute bar to commencing divorce proceedings in the first year of a marriage (Matrimonial Causes Act 1973, s 3), it is unlikely that questions as to validity of a marriage will be addressed in the first 12 months.

(18) Indeed, within Islamic scholarship there is far greater disagreement around divorce: the different types, the conditions for each, and the validity and the impact of a specific type of divorce which would justify non-recognition of religious divorces. (p.102)