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Religious-Only Marriages in the UK

Legal Positionings and Muslim Women’s Experiences

In: Sociology of Islam
Author: Rehana Parveen1
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Non-state-registered Muslim marriages are often considered as a poor alternative to civil marriage, accepted by vulnerable or ill-informed Muslim women. Problematizing such marriages is based on the assumption that entering into a civil marriage (in addition to or as an alternative to the Muslim marriage) is beneficial for all Muslim women. Listening to the narratives of the women concerned reveals a wide range of opinions, including those that prefer to enter into religious-only marriages. Solutions to the problems presented by unregistered religious-only marriages have thus far been proposed in a manner that reflects a discourse that considers unregistered marriages as somehow conceptually problematic. However, in so far as English law is concerned, the legal position of Muslims who enter into non-state-registered marriages is no different from that of cohabitees, who live together without the ‘protection’ of a civil marriage. Therefore, it may be worth considering whether the issue at stake is reconsidering family law and laws concerning cohabitation, rather than a separate set of rules and regulations for Muslims.

Abstract

Non-state-registered Muslim marriages are often considered as a poor alternative to civil marriage, accepted by vulnerable or ill-informed Muslim women. Problematizing such marriages is based on the assumption that entering into a civil marriage (in addition to or as an alternative to the Muslim marriage) is beneficial for all Muslim women. Listening to the narratives of the women concerned reveals a wide range of opinions, including those that prefer to enter into religious-only marriages. Solutions to the problems presented by unregistered religious-only marriages have thus far been proposed in a manner that reflects a discourse that considers unregistered marriages as somehow conceptually problematic. However, in so far as English law is concerned, the legal position of Muslims who enter into non-state-registered marriages is no different from that of cohabitees, who live together without the ‘protection’ of a civil marriage. Therefore, it may be worth considering whether the issue at stake is reconsidering family law and laws concerning cohabitation, rather than a separate set of rules and regulations for Muslims.

Introduction

It has already been argued in the 1980s that Muslims in the United Kingdom often do things twice, including marriage and divorce, in order to meet the demands of English law and to adhere to Islamic norms (Pearl and Menski 1988). Fast forwarding to the 2010s, another trend seems to be emerging among at least some Muslims, and that is engaging in a singular act which conforms to only one normative framework: the religious one.

In this contribution, part of a larger research project that investigates Muslim women’s experiences of using shari’a councils and civil courts, I analyze how Muslim women talk about and experience religious-only and civil marriages and, to a lesser extent, divorce. In order to do so, I analyze information gathered from the files of a shari’a council in Birmingham that provides an indication of the prevalence of various kinds of marriages engaged in by Muslim women. However, these files do not provide information about how the women concerned experience these different kinds of marriages and their motivations to enter into them. In order to gain insights into these issues, I conducted interviews with 20 Muslim women who had experienced the breakdown of their marital relationships and had turned to shari’a councils. Some of them had also undergone a civil court process to terminate their relationships in accordance with civil law.

In the following, I first briefly introduce the research project and provide some information about the setting in which I conducted my research. I then present the results of my analysis of the shari’a council files, focusing on the kinds of marriages the parties concerned had concluded (religious-only or also civil) and their backgrounds. This is then followed by an analysis of the interviews that I have conducted. In particular, I have focused on the forms of marriages the women entered into, the moment at which they considered themselves married, their motivations to either enter into a state-recognized marriage or not to do so, the impact this has had on the termination of their relationship, and how their experiences with particular forms of marriage and divorce may impact their future choices. I end with an extensive reflection on some of the problematic aspects of how English law deals with non-state-recognized Muslim marriages, and I provide some suggestions for alternatives.

The Research Project: Context, Sources, and Methods

After I started my empirical work in 2012, the issue of religious-only unregistered marriages among Muslims (that is, nikaah-only marriages) increasingly came to be seen as problematic. It has featured prominently in the media (see, for example, the awareness raising campaigns by Khan 2015), most recently in a Channel 4 documentary (‘The Truth About Muslim Marriage,’ 2017), while politicians have also turned these marriages into an object of scrutiny as part of their wider investigations into shari’a councils and Muslim practices (see, for example, The Home Affairs Committee enquiry into shari’a councils in 2016 and the Independent Review into shari’a councils initiated by the then Home Secretary Theresa May, also in 2016).

Some research has been conducted to try and establish the extent of religious-only marriages among Muslims. Shah-Kazemi’s study, one of the earliest ones, states that in 27% of the case files which she had studied from a shari’a council in London, the couples did not enter into a state-recognized marriage (Shah-Kazemi 2001: 31). Later studies point to higher proportions of non-state registered Muslim marriages, such as the work of Bano (2004) who interviewed women from across the UK including London, Birmingham and Bradford and where 16 out of 25 women’s marriages were non-state registered. Also the work of Douglas et al. (2012) noted that 14 out of 27 cases observed at Birmingham Central Mosque involved non-state-recognized relationships. Khan (2015) has estimated that around 80% of Muslim marriages in the UK are non-state-recognized but has not provided empirical evidence to support this figure. The research of both Vora (2015) and Akhtar (2015) focused on participants who had entered into non-state-recognized marriages only and does not include data about the extent to which Muslims are opting out of civil marriages.

The shari’a council in Birmingham where I conducted empirical research into its case file is the Islamic Judiciary Board (IJB), which has its offices on the premises of the Green Lane Mosque (Masjid) and Community Centre (GLM). GLM is the head office of a larger association of mosques located throughout England under the banner of Markaz Jamiat Ahle Hadith UK (MJAH). As one of the largest mosques in Birmingham, GLM is located in Small Heath, an area that has a large, increasingly diverse Muslim population. Although the majority of its visitors are of Pakistani background, also significant numbers of Muslims of Somali, Bangladeshi, Afghan, Yemeni, and other Arab backgrounds, as well as European and English converts make use of its services. GLM is diverse in terms of the ethnic-national backgrounds of those attending and caters to both genders.

Whereas relatively few mosques identify themselves as Salafi-oriented, GLM is key among them.1 Such a Salafi orientation refers to a strand of Islam that advocates a return to, and a literalist interpretation of, the traditions of the first generations of Muslims, an interpretation they consider as free from cultural baggage (Hamid 2009; De Koning 2013: 73, refers to the Salafi movement as a ‘utopian movement which aims to revitalise Islam based upon an idealized vision of the life of the first Muslims’). GLM provides a wide range of services, including inter alia, Islamic educational classes for children and adults, a food bank, support services for new Muslims, funeral services, counseling and pastoral services, youth and scouts clubs, and it delivers these services in different languages, with the predominant language being English. Because of the combination of the use of English as the main language, its catering to the needs of women, and its claim to disaggregate religion from particular cultural traditions, GLM is particularly attractive for young second and third generation British Muslims of diverse backgrounds (Parveen 2017). Some younger Muslims who may not have strong ties to or who may be critical of their parents’ cultural heritage may wish to distance themselves from such ethnic heritage and as a result more readily identify themselves with the Muslim community (ummah) as a whole (Kundnani 2015: 53). At a time when Muslims feel threatened, turning to the guidance of what is presented and perceived to be an ‘authentic’ version of Islam is particularly appealing to young Muslims (Gilliat-Ray 2010: 72–73).

Whereas the IJB, set up in or around 1996, is located within the premises of GLM, as an organization it runs independent of the mosque. It has its own telephone line, its own staff, and a separate office in the GLM building. It consists of an administrator (who was my main point of contact), another employee, and Sheikh Abdul Hadi, who is the chairman of its Board. In addition, the Board has another nine other members, all of whom are members of affiliated mosques from elsewhere in England and Wales. All of those involved with the IJB are men; there are no women working in any capacity for the Board, even though women are employed by GLM itself. The Board members meet every 6 to 8 weeks to make decisions on files.

The Files: Gender, National Background, and Forms of Marriage

For this article I have investigated the kinds of information that the 100 closed case files of the IJB that I studied contain about non-state-recognized marriages. To start with, in all these case files the applicants are women. This is in line with findings in academic studies about other shari’a councils in England and Wales, which demonstrate that overwhelmingly the applicants to shari’a councils are Muslim women (Bano 2012; Bowen 2016; Douglas et al. 2011; Shah-Kazemi 2001; Walker 2017). Most applicants (64) are of Pakistani background, that is they are either British Pakistanis or immigrant Pakistanis, who often entered the UK as spouses. The next most commonly found nationalities among those appealing to the Board are Bangladeshi (7%), Yemeni (6%), Somalian (6%), and European/English converts (3%). A wide range of other nationalities constitute only 2% or less.

The IJB is well aware of the different situations of a couple who has entered into a religious-only marriage and a couple who has also concluded a civil marriage. An analysis of the files indicates that 68 couples had marriages that were considered valid under English law and therefore required a civil divorce to terminate them. A total of 29 couples had entered into religious-only marriages and another three couples had married abroad in marriages that may not be valid for English law purposes. As in the latter cases, the Board questioned whether these marriages were recognized under English law, the Board treated them as religious-only marriages. Thus, according to the files, most applicants had entered into marriages that were valid for the purposes of English law.

However, this does not mean that they had concluded a civil marriage in England. On closer examination, I discovered that the majority of the 68 couples with marriages valid under English law had in fact been concluded abroad (and outside of Europe), mainly in Pakistan. Typically, in those situations one of the spouses held British or a European nationality, while the other did not. This was the case for 54 out of the 68 couples. These couples who had married outside of Europe had entered into a Muslim marriage that was legally valid in the country in which the marriage was concluded. Hence, these marriages were also recognized under English law.2 These couples had a compelling reason to ensure the validity of their marriages under English law: in order to meet the immigration requirements that enabled the non-British spouse to enter into the UK. Transnational couples are subjected to additional controls and an increased level of scrutiny as to the authenticity of their relationships, primarily in order to control immigration (Wray 2015). In transnational marriages, if British spouses would like their non-British spouses to join them in the UK there is never a choice as to whether to undergo a religious-only marriage. Indeed couples, very often, will be jumping extensive hurdles to convince immigration authorities as to the validity and genuineness of their marriages (Enright 2009; Gill & Mitra-Kahn 2012; Wray 2015). When marriages are conducted abroad, compliance with immigration requirements is a significant factor in understanding the motivations of those who have entered into marriages valid for English law purposes. One might also add that such couples, who marry abroad, are only required to undergo one valid ceremony in the country where the marriage ceremony is taking place.3 And as would be expected, one of the consequences of recognition by English law is that if these couples wished to subsequently end their marriage, the IJB correctly advised them to obtain a civil divorce, if they had not already done so.

Turning to the files of those couples who had married in the UK or in Europe, a different picture emerges. Out of a total of 43 couples that fall into this category, only 14 had entered into marriages that are clearly valid under English law. The majority, 29, had entered into a religious-only marriage. This indicates that a significant proportion of applicants who are British Muslims and whose marriages were concluded in the UK did not enter into a civil marriage. Without the need to satisfy the demands of the immigration authorities, British Muslims had greater flexibility in deciding whether they also desired to enter into a state-recognized marriage.

Muslim Women’s Motivations and Experiences

As the case files do not give an indication why couples had entered into a religious-only marriage, I explored this topic with the 20 women whom I interviewed. These women are all British Muslims, although they were not all necessarily born in the UK. The large majority of them (17) are of Pakistani background; in addition, two were Indian and one was Yemeni. All of the women concerned had experienced a shari’a council process for the dissolution of their marriages, but not all of them had gone through a civil divorce.

I found my interlocutors through a range of different sources. A primary source was GLM and the IJB itself, either because I had approached the women whom I had observed during sessions of the IJB or because they had responded to my call for volunteers at some of the activities for women organized by GLM. I found the other women through friends and acquaintances. My only criterium was that they had been through a shari’a council process within the previous 5 years.

All of the women were fluent English speakers. They had all at some point in time been engaged in paid employment outside the home, although not all were economically active at the time when I conducted their interviews. All of them were educated to at least GCSE level and many had reached graduate and post-graduate levels and had professional careers such as those of GPs, teachers, nurses, and pharmacists. To all of them, their faith as Muslims was of considerable significance.

As committed Muslims, all 20 women interviewed had entered into an Islamic marriage ceremony (nikaah) in order to Islamically legitimize their relationship in the sight of God. Seven of them had not undertaken a civil ceremony of marriage. Of the 13 women who had entered into a state-recognized marriage, nine had been married abroad. Only four women had been married both through a religious and a civil ceremony in the UK.

In many ways this resonates with the findings from the files of the IJB. Although most of the women concluded a state-recognized marriage, very often these women had married abroad in Muslim-majority countries where a state-recognized marriage is simultaneously valid as an Islamic marriage. When we focus on the 11 women who had married in the UK, only four of them had entered into a state-recognized marriage. In other words, the majority had not done so. The insights gained both from the case files and from interviews indicate that if marriages take place in the UK, it is more common that they enter into religious-only marriages. In very broad strokes, whereas of all marriages studied approximately one third are religious-only, if only taking into consideration those concluded in the UK, then about two thirds are religious-only.

A number of caveats need to be made. First, these are all cases in which the relationships have broken down. It is possible that a partially different picture would emerge if an enquiry was undertaken that included marital relationships that had not broken down. Secondly, the case files are all of one particular shari’a council that is located on the premises of a Salafi-oriented mosque, and many of the interviewees were also accessed through this venue, which may mean that a particular subsection of women is overrepresented. Whereas it is not possible to claim that this material is representative for Muslims in the UK generally, it does allow for developing a critical perspective on existing legal perspectives.

Entering into a Religious-Only Marriage

Irrespective of whether the women entered into a civil marriage or not, all of the women agreed that they considered themselves married once the Islamic marriages (nikaah) had taken place. Even if the women did not necessarily start cohabitation with their husbands after the nikaah, they still considered their relationship legitimized in the eyes of God by the nikaah ceremony.

This is evident from some of the comments the women made in response to the question, ‘When did you consider yourself married?’ The most typical and concise response was the one Halima4 gave: ‘from when I had the nikaah.’ Even though Halima’s civil ceremony occurred two days after the nikaah and she began living with her husband after the civil ceremony, she still considered herself ‘married’ from the moment the nikaah had been concluded. Other women made similar comments, such as, ‘legitimate in my eyes is through the eyes of Allah [god] and that’s the nikaah,’ or ‘I know Islamically that’s the one that matters to us [the nikaah].’ And Juwairya, who was married in Pakistan and hence also had to file for a civil divorce, explained her position as follows: ‘I would consider myself to be married once I had a nikaah and I am divorced when the khula is done…an English marriage in my opinion is not considered a valid marriage in Islam as a marriage…an English marriage on its own is not something I would want to do. As a Muslim I would not consider that to be a marriage.’

It is clear that all the women interviewed considered themselves as having entered into a legitimate relationship from the moment that the nikaah was concluded, irrespective of whether there was a civil relationship, and if there was a civil relationship whether it occurred before or after the nikaah. None of the women had considered a civil ceremony alone to be sufficient. This then raises the question why these women did not conclude a civil marriage in addition to their religious marriage?

Most women understood that in order to be ‘married’ under English law, they needed to enter into a civil marriage or at least undertake a marriage ceremony that was recognized in English law, and they were aware of the fact that the nikaah ceremony alone would not be recognized in English law. This does not necessarily mean that they fully understood all of the consequences of not having a state-recognized marriage. But most of the women realized that there were some financial consequences to not having a civil marriage and appreciated that the civil law of divorce was not applicable if there was no civil marriage. Muslim women’s lack of knowledge as to the full legal ramifications of not having a state-recognized marriage can be compared to non-Muslim British citizens who hold vague, misguided, or incorrect notions as to their legal rights as cohabitees (Barlow & Grace 2004). Probert (2012) provides an historical account documenting the creation of the ‘common-law wives’ myth, a myth that remains entrenched in the understanding of significant proportions of the British public.5 British Muslim women (and men) are not only exposed to confusion around the legal status of the nikaah (as we shall see later in this paper), but they are also at risk of the same misunderstandings as non-Muslim cohabitees regarding their legal rights when living together as husband and wife.

There is a range of explanations as to the reasons why seven of the women interviewed did not enter into a civil marriage. Kulsoom summarizes the position of many of the women, even if articulated in different ways, to explain why there was no civil ceremony: ‘I didn’t have a civil marriage as I didn’t feel it was necessary…the most important thing was to be married in the eyes of Allah…and I felt the only reason I would have a civil marriage is to protect my assets.’

One of the women interviewed was in a polygamous relationship. She was the second wife and her husband was married under civil law to his first wife. Noorie recognized that she was unable to enter into a civil marriage with her husband. While understanding that she was in a considerably weaker position financially by not having a civil marriage, her view remained that the civil marriage was unimportant to her ‘I think the main thing is the Islamic nikaah…in our religion we have to be married, it’s very important and the English one, I don’t see that as very important to be honest with you.’

Only one of the women (Tayba) was unaware that her marriage was not valid for English law purposes: ‘I thought having your nikaah done stood in the courts…. I wasn’t aware of that at the time.’ She only realized this when, one year later, she decided to commence proceedings for divorce and sought legal advice. Still, there is no suggestion she was duped in any way by her husband, and, in hindsight, she felt it was to her advantage that there had not been a civil ceremony. In her words, ‘[not having a civil ceremony] was of benefit to me, it was definitely of benefit to me…with the courts I would have had to pay much more potentially…they say it gets split half and half and with the courts it would have been an even longer process…and to be honest traumatizing at the same time…it worked out in my favour in that way.’ As a nurse practitioner, she had been the main financial provider in the relationship. Having said that, Tayba also concluded that if she were to marry again she would probably wish to have a civil ceremony: ‘You know what’s funny this time round I probably would [have a civil ceremony]…. I can’t really explain why…with the nikaah, even though it worked in my favour the first time round it’s not legitimate in the sense that when the khula was official they only sent me like a letter…whereas with the courts I feel it’s more structured and official, legitimate.’

Two out of the seven women stated that the reason they had not entered into civil marriages was because they had been discouraged from doing so by their respective husbands. Both women acknowledged there are negatives and positives to having a civil ceremony, as explored below. Overall, however, both of them also concluded that not having a civil ceremony had been beneficial to them on this occasion. In discussing why they had wanted a civil ceremony and how they had been discouraged, the women stated as follows: Irum explained: ‘I think it’s my security [the civil marriage]…because I am married in the eyes of British law as well…he would have had a lot more to lose…he counts his pennies…so he would have thought about financially what he could lose…at the moment just because we are only married in Islamic law he thinks I can divorce you any time I want.’ Mariah expressed a similar sentiment: ‘He didn’t want the civil marriage and the reason is that he didn’t want me to claim anything from him…he was always frightened…he said that we don’t need to go through English law.’

In response to whether they regretted the lack of a civil marriage, these women, who had recognized some disadvantages to a nikaah-only marriage, expressed some ambivalence, but overall appreciated that they only needed an Islamic divorce to end the relationship. As Irum said, ‘In one way yes, in another way I think I got away lucky…my friends who have been through the same experience and have to go through courts, I know what they have had to go through…much more emotionally draining.’ Mariah weighted the positive and negative aspects as follows:

…the positives were separating from him [husband] was much easier and no civil divorce to go through…hearing from other people now it could take anything up to 5 or 6 years. …[negatives] he took the gold and if I had rights I could have gone through English courts…but I don’t want anything of his anyway, it’s all haram [impure or earned through Islamically unlawful means] money.

In contrast, the other five women stated that in hindsight, they were pleased that they did not enter into a civil marriage, as this meant their own finances were protected and they did not have to go through a civil divorce process.6 Rabiya, who had a nikaah-only marriage and was also in a much stronger financial position than her husband, expressed her feelings as follows: ‘No English procedure of any sort. In retrospect very pleased I didn’t have to go through this. Made things a lot easier…I’m glad I didn’t do it that way.’

Concluding Both a Religious and a Civil Marriage

Out of the 13 women who had concluded a state-recognized marriage, nine had married abroad. Eight of these marriages had taken place in Pakistan and one in India. As mentioned earlier, in order for the non-British spouse to be able to enter into the UK, it is a requirement of the immigration regulations that the parties concerned have entered into a marriage which is recognized by English law, so the possibility of not concluding a state-recognized marriage was simply not available. Two of these women indicated that if they were to marry again, they would consider entering into a religious-only marriage. Juwairya, who was married in Pakistan and went through both a civil divorce and a shari’a council process, said, ‘I think I would have just a nikaah…well it depends on where I get married from…if it was just from here I would have just a nikaah.’ Layla, who found herself in a similar position, stated, ‘For me it [the civil marriage] wouldn’t matter…I would definitely make sure that the guy is from here…I would just do a nikaah…for me civil marriage doesn’t really matter…. I have to answer Allah, I don’t have to answer this world.’

Another two women within this category explained that they would prefer having both a civil marriage and a nikaah. Sophia, who had first been married in Pakistan, went through a civil divorce and a religious termination of her marriage, and then married her current husband, concluding a nikaah as well as a civil marriage, explained her reasons for doing so, ‘I feel married from the nikaah definitely…the civil marriage gives me an acknowledgement of where you’re living…because we are living in an English community, for the whole wider purpose of the English community to understand and acknowledge that we’re married because we live in British society.’ Parveen, who was married in Pakistan and underwent a civil divorce and a shari’a council process, said in a similar vein, ‘[I would] probably go for both [the civil marriage and the nikaah]. I like to do everything by the law both shari’a and English law.’

Turning to the women who had entered into both a religious and a separate civil ceremony in the UK, I first explored with them why they had entered into a civil marriage. Obaidah had made a conscious decision to do so, ‘I felt I lived in this country and I felt that I needed to adhere to the law of the land even though to me I was more nervous about having the nikaah, to me, that was more binding.’ For Halima, it had simply been self-evident: ‘At the time I thought it was standard procedure, we never really thought about it, I just thought it was something you had to do…the English one I thought was just the norm, to be married you have to be registered in this country.’

When I explored with these women whether they would opt for a civil ceremony if they were to marry again, both said they would not. Obaidah, who went through both a civil divorce as well as the termination of her nikaah, had changed her opinion, ‘We all change based on our experiences, five years ago I was very keen on a civil ceremony. I’m not anymore…even though I valued the nikaah more I still thought…. I want another occasion to dress up and feel married to all my English mates…maybe that wasn’t a good enough reason for all the hassle that it’s been.’

Halima, who found herself in a similar position (having gone through both a civil and a religious divorce), and whose matrimonial home was held in her sole name, was also clearly not in favour of a civil marriage, ‘Not the civil marriage no, a nikaah only…because of all the financial headache it’s difficult…I’ve always worked so I’m financially stable and wouldn’t want to go through that headache again…. Now as more mature…I’ve changed my way of thinking…a legal divorce and everything, that’s a lot of hassle and problems so it’s easier just to have a nikaah…that’s the most important [one] in front of Allah [God].’

For the other two couples, immigration compliance featured in their decision-making process. For one couple, the civil ceremony was necessary in order to regulate the husband’s status in the UK. Qaseema concluded a civil marriage as well as a nikaah in the UK because although her husband was residing in the UK as a student at the time of the marriage, they wished to alter his immigration status to that of a spouse. The conclusion of the civil marriage was a much regretted decision for her, ‘Yeah I do regret [the civil marriage]….if I get married again I ain’t having a civil, no way…I don’t see the reason for the civil, the reason I did it last time was because of the visa…but if I get married again to a British citizen I’d never have it…I just don’t see the point in it…I don’t see what benefit I will get from having a civil marriage…financially when you get divorced [maybe] but my husband doesn’t own anything.’

The other couple concluded a civil marriage because they intended to move to Malaysia. As Fareeda said, ‘The only reason we did it was because he was offered a job in Malaysia as a teacher…we weren’t sure they would recognise the nikaah certificate…we just quickly went and booked the civil ceremony…I just wore an abaya (a long loose gown).’ She was the most undecided as to whether she would again also conclude a civil marriage, ‘I don’t know if I would….I would rather have a really good Islamic contract…now looking at it with hindsight…we don’t have any finances or a house.’ In both of these cases, the women’s motivations for concluding civil ceremonies were largely in order to comply with formalities that would allow them to either live as a couple in the UK or to live as a couple in Malaysia. The civil ceremonies were not prioritized in the same way as the nikaah. Fareeda’s reference to the unimportance of what she wore is indicative of her perception, that the civil ceremony was a procedural step taken by the couple in order to be able to live together in Malaysia. For all four women in this category, the civil marriage ceremony offered no greater legitimacy to the validity of their marriages and indeed very little benefit, financial or otherwise, when it came to the divorce.

Further, all four women expressed their reluctance to enter into a civil marriage again, primarily due to their experiences with the civil divorce process. One must therefore approach with caution the notion that civil law as a protection is better for all Muslim women. In this regard the position of British Muslim women is no better or worse than non-Muslim British women: whether the civil divorce process and ability to apply for financial relief is better depends on their personal circumstances. Similarly, the dissolution of a civil marriage is not necessarily easier or less traumatic than the dissolution of a nikaah. There was no indication that abandoning the civil marriage meant that the women were intending to shun or distance themselves from British society in any way; rather, the women’s concerns were a reflection of their experiences of the civil divorce process.

We may also conclude that the issue of religious-only marriage will not easily go away. Indeed, over half of the women indicated their preference for a nikaah-only marriage. They present a variety of reasons to explain this. First, the women abide to another norm that is for them more important, the religious legitimacy of the marriage, which makes concluding a civil marriage less of a priority. Secondly, the women felt that having experienced the requirements of going through a civil divorce made the whole process of ending the marriage more complicated, more traumatizing, and at times significantly longer. Thirdly, if there are no financial claims that the women wish to address, then the civil marriage adds no tangible benefits and may actually work to the financial detriment of some women. Akhtar (2015: 188) summarizes the reasons that her participants gave for not entering into state-recognized relationships as a combination of ‘practical conveniences, priorities and the demands on time’ and further explained that many couples ‘have no perceived need to engage with the law as far as their successful marriages are concerned.’ My own research supports Akhtar’s contention that there is little evidence to suggest there is widespread misuse of religious-only marriage by Muslim men.

Although a number of the women seemed to recognize that having a state-recognized marriage may provide them with greater protection with respect to financial assets, they also understood that this depended on who held the stronger financial position. Some of the women that I interviewed held professional jobs and entered their marriages with their own property and wealth, while others felt the court process was not always the best method of ensuring that they were financially protected. As Noorie, who was in a polygamous relationship, said, ‘He would always help me…even now he’s giving me £200 a month….I know the type of person that he is, he will give whatever he has but if I was to fight with him then he won’t give it.’

Nonetheless, it is also important to recognize that at least three of the women emphasized the value of a civil ceremony. They made the connection between compliance with civil law and the status of marriage that this provides within British society. They also articulated how complying with civil law impacts on their identity as British Muslims and for non-British Muslim society to acknowledge their marital status.

3. Returning to the Law; Legal Perspectives

The Law Commission scoping paper, ‘Getting Married,’ published in December 2015, identified the ‘thriving and largely unregulated market in celebrants conducting non-legally binding marriage ceremonies’ (para 1.23). The wording indicates that this issue is not limited to Muslim marriages. Still, the Law Commission pointed out that the practice of religious-only marriages has been highlighted within Muslim communities (para 1.34). The Law Commission advocates for a thorough review of the law of marriage (para 1.36) and accepts that there are a number of areas in need of reform, specifically in relation to the formalities establishing entry into a state-recognized relationship.

The response of English law to marriages that do not conform with the requirements of civil law can at best be described as unclear and inconsistent. As the Law Commission explains, when legislators drafted the laws of marriage in 1823 they anticipated that the consequences of parties knowingly and willfully failing to comply with some of the necessary formalities would be a declaration that the marriage is void. No consideration was given to circumstances where parties entered into a ‘marriage’ without complying with any of the formalities (para 2.70 & 2.71). Despite some amendments and the consolidation of the legislation,7 it was believed that when it came to compliance with formalities, either a marriage was valid or void (see Probert 2013). Even when a marriage is declared void, parties can still apply for ancillary relief.

However, as Probert points out, today’s society is culturally, socially, and linguistically much more diverse (Probert 2013). As a consequence, there are infinitely more ways in which a couple may decide to enter into a marital union where none or very few of the formalities of English law are complied with. The response of case law has been to create a category of what is referred to as a ‘non-marriage.’8 This is when parties have undertaken a ceremony which bears little or no resemblance to the formalities expected by English law.

Couples who have undergone a ceremony declared as a non-marriage are treated as unmarried cohabitants. This places nikaah-only marriages into a somewhat curious position whereby the parties consider themselves to be married, their families and communities consider them to be married, there is a religious process which parties feel they need to undergo in order to terminate their marriages, yet the law, on the whole, categorizes such marriages as non-marriages.9 Even this cannot be said with certainty, as there are occasions when English law has held a nikaah-only marriage to be valid10 and other occasions where it has been held to be void.11 Whether a nikaah-only marriage may be declared valid or may be declared void or may be held to be a non-marriage depends on the extent of the non-compliance with civil law and the intentions of the parties. This is clearly an unsatisfactory state of affairs and has been examined in some depth by academics (Gaffney-Rhys 2010, 2013; O’Sullivan and Jackson 2017; Probert 2013; Vora 2016).

I argue that there are two separate but interrelated areas of concern where reform is needed, both of which will be of benefit not only to the Muslim couples concerned, but also to society at large. First is the state’s regulation of marriage. There are a number of ways in which concluding a state-recognized marriage may be made simpler and easier. Secondly, there is the lack of financial protection available for cohabitees in the event of a relationship breakdown. If reforms are taken in both of these areas, then the possibility that women are left in a financially vulnerable position is diminished. We then are closer to Bonthuys’s (2016) notion of the state protecting valuable relationships. Whereas it is important to make marriage simpler and easier for those who wish to enter into a state-recognized relationship, for those who do not enter into such a relationship, the state can still provide a financial safety net without compromising the institution of marriage.

Facilitating Marriage, Providing Protection

As the law currently stands, if a Muslim couple wishes to enter into a legally recognized marriage, they have two choices. They may either undertake two separate ceremonies—a nikaah and a separate civil marriage that must comply with the formalities of civil law—or they can ensure that the nikaah ceremony itself complies with the formalities of civil law. In either case the formalities are unnecessarily complicated (see Gilmore & Glennon 2016; Law Commission 2015). Serious practical questions arise when one considers the disparities between the requirements for a valid nikaah and the formalities that civil law currently requires parties to fulfill (O’Sullivan & Jackson 2017).

When examining previous case law, Muslim marriages appear to have been declared as non-marriages where they have failed to fulfill notice or certificate requirements or have taken place in an unregistered building or in the presence of an unregistered celebrant.12 Simplification of the marriage process could include, at the very least, the removal of a registered building as a requirement. It has already been noted that there has been a very low take-up of mosques registering themselves as places for the solemnization of a marriage (Grillo 2015). Moreover, many Muslims do not marry in mosques; rather, they conduct the nikaah at home, in a restaurant, in a hotel, or in a wedding hall (Akhtar 2015). As discussed by O’Sullivan and Jackson (2017), a continental model could be adopted whereby the emphasis is placed on ensuring that the celebrant is legally authorized to perform a ceremony, and the place of marriage becomes an irrelevant factor in deciding on the validity of marriage. This would make marriage simpler for Muslims and non-Muslims alike who may wish to have a more personalized service of marriage at a venue of their choosing.13

Islamic jurisprudence on marriage ceremonies does not require that they be officiated by an imam, though most couples will have an imam conducting the nikaah ceremony. A registration system that allows parties to register their marriage after the ceremony, similar to the way in which a registration of a birth or death occurs, may also mean that notice requirements can be fulfilled after a ceremony has been conducted, rather than before. The registration of a birth or death is no less significant than the registration of a marriage, and introducing a procedure that allows for post-registration can incorporate within it notice periods, opportunities for objection, and appeals against registration.

None of the amendments suggested above will provide a fail-safe solution. They are measures that will allow for the state recognition of marriages to be made simpler and easier to comply with. They will enable those who wish to marry in an ‘unconventional’ manner to attain the status of marriage, while allowing parties the freedom to refrain from obtaining state recognition, if they so wish.

Even with the simplification of the law regarding entry into a state-recognized marriage, there will still be couples who enter into a nikaah marriage without state recognition. Whether this is based on a conscious choice by the parties concerned or one party taking advantage of the limited legal literacy of the other, the fact that they are classed as cohabitees may have negative consequences for the financially more vulnerable party. Although there has been a reluctance on the part of legislators14 to introduce a clear statutory framework imposing financial interdependence between cohabitees, case law has been attempting to address the void. The law of trusts has been used primarily to provide relief when it comes to the family home.15 More specifically for Muslims, some Muslim women have obtained relief by enforcing their financial rights to mahr (dower) through the law of contract.16 The judiciary appear to be at least attempting to address the concerns of women who may be in a financially vulnerable state.17 In Vora’s investigations, eight of the ten women whom he interviewed were ‘under the illusion that they would be granted the same legal rights as other married couples’ (2016: 138). Others, as stated above, have reported that non-Muslim cohabitees are under the same or similar illusion (Barlow 2008; Probert 2014). In any case, if there is legislative guidance providing some degree of financial protection, albeit not to the extent of financial relief ancillary to divorce, the lack of a civil marriage will not have such severe financial consequences. For example, statutory guidance may be limited to the family home rather than all the family assets.

In many respects Muslims are behaving in a very similar manner to their non-Muslim counterparts with respect to whether to enter into a civil marriage. Sometimes their motivations may differ, very often they are unsurprisingly similar (see Barlow & Grace 2004 for a detailed exploration of reasons given for marriage or cohabitation), but the legal consequences are the same. If the state does not recognize the parties’ relationship, it is the financially vulnerable party who is left largely unprotected. If the objective is to encourage more people to marry and attain the status of marriage, then entry into marriage needs to be facilitated. And if the objective is to protect against financial vulnerability, then reform of the law for cohabitees needs to be addressed.

Conclusion

Muslim women, like any other group in society, are not one homogenous category. Even among the relatively small number of women whom I interviewed, the women articulated different views as to why they had or had not entered into civil marriages. The research indicates that it is not simply a case of poor choices made by weak women. Many women who have gone through the experience of a relationship breakdown have indicated that civil law is not a panacea for all the problems that arise in such circumstances.

All of the women agreed that as far as they were concerned they were married once they had undertaken a nikaah. So for most Muslim women, if the civil marriage does not provide them with legitimacy in their relationship nor do they depend on it as providing them with the status of being married, one must question what is the benefit to them of having a civil marriage? The most obvious advantage is the ability to apply for ancillary relief. Whereas it is important that it is an option, not all women necessarily wish to apply for ancillary relief and in most cases, one will not know whether there is a need for such an application until the relationship actually breaks down. As Barlow and Grace (2004: 20) point out, ‘the decision to marry or cohabit is not usually taken against an informed awareness of the different legal consequences.’

If the formalities for civil law were made simpler, would we see a surge in Muslims entering into state-recognized relationships? This is difficult to predict. I anticipate, based on my research, that there may well be more Muslim couples meeting the formality requirements if these requirements are simplified. However, it seems clear that some Muslim couples will exercise their freedom not to enter into a state-recognized marriage. For those Muslims and indeed non-Muslims who decide not to enter into a state-recognized relationship, the question is whether English law ought to extend the financial safety net to provide for the more vulnerable party.18 This is not a question that is specific to Muslims and has remained a contested and thorny issue for policy makers for the last 50 or so years. Herring (2013) suggests that soon, marriage will not be the norm for adults living in the UK and so the provision of a financial safety net for those in non-state-recognized relationships will become an ever more pressing issue to contend with.

As mentioned before, the research that has been conducted on this topic has generally investigated the views and experiences of Muslim women who have been through a termination of their relationships.19 Perhaps we ought to hear from a wider range of people, including more from Muslim men, Muslim couples in ongoing relationships, and most importantly, if we are concerned about future trends, from single Muslims who are considering marriage. But any such future research needs to be understood and grounded within the context of non-Muslim British society and the approach that non-Muslims are taking to state recognition of their relationships.

References

  • Akhtar R.C. (2015). Unregistered Muslim marriages: An emerging culture of celebrating rites and conceding rights. In Miles, Joanna, Perveez Moody, and Rebecca Probert (eds), Marriage Rites and Rights, pp. 167192. Oxford: Hart Publishing. DOI:10.5040/9781782259664.ch-008.

    • Search Google Scholar
    • Export Citation
  • Bangstad Sindre and Linge Marius (2015). “Da’wa is our identity”: Salafism and IslamNet’s rationales for action in a Norwegian context. Journal of Muslims in Europe, 1–23. DOI:10.1163/22117954-12341307 Available from: https://www.researchgate.net/publication/282148353_%27Da%27wa_is_Our_Identity%27-_Salafism_and_IslamNet%27s_Rationales_For_Action_in_a_Norwegian_Context%27 [accessed May 31, 2018].

    • Search Google Scholar
    • Export Citation
  • Bano Samia (2004). Complexity, Difference and “Muslim Personal Law”: Rethinking the Relationship between Shariah Councils and South Asian Muslim Women in Britain. Doctoral thesis, University of Warwick.

    • Search Google Scholar
    • Export Citation
  • Bano Samia (2007). Islamic family arbitration, justice and human rights in Britain. Law Social Justice & Global Development Journal, 1.

    • Search Google Scholar
    • Export Citation
  • Bano Samia (2008). In pursuit of religious and legal diversity: A response to the Archbishop of Canterbury and the “Shari’a debate” in Britain. Ecclesiastical Law Journal, 10(3): 283309. DOI:10.1017/s0956618x08001415.

    • Search Google Scholar
    • Export Citation
  • Bano Samia (2011). Muslim marriage and Mahr: The experience of British Muslim women. In Mehdi Rubya and Nielsen Jergen S. (eds.), Embedding Mahr in the European Legal System, pp. 263288. Copenhagen: DJOF Publishing.

    • Search Google Scholar
    • Export Citation
  • Bano Samia (2012a). An Exploratory Study of Shariah Councils in England with Respect to Family Law. University of Reading. Available from http://www.reading.ac.uk/web/files/law/An_exploratory_study_of_Shariah_councils_in_England_with_respect_to_family_law_.pdf [accessed May 31, 2018].

    • Search Google Scholar
    • Export Citation
  • Bano Samia (2012b). Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law. Basingstoke: Palgrave MacMillan.

    • Search Google Scholar
    • Export Citation
  • Barlow Anne and James Grace (2004). Regulating marriage and cohabitation in 21st century Britain. The Modern Law Review, 67(2): 143176. DOI:10.1111/j.1468-2230 .2004.00482.x.

    • Search Google Scholar
    • Export Citation
  • Barlow Anne , Burgoyne Carole , Clery Elizabeth , and Smithson Janet (2008). Cohabitation and the law: Myths, money and the media. In Park Alison , Curtice John , Thomson Katarina , Phillips Miranda , Johnson Mark , and Clery Elizabeth (eds.), British Social Attitudes: The 24th Report, pp. 2952. DOI:10.4135/9781849208697.n2.

    • Search Google Scholar
    • Export Citation
  • Bonthuys E. (2016). A patchwork of marriages: The legal relevance of marriage in a plural legal system. Onati Socio-Legal Series, 6(6): 13031323.

    • Search Google Scholar
    • Export Citation
  • Bowen J.R. (2016). On British Islam, Religion, Law, and Everyday Practice in Shari’a Councils. Princeton: Princeton University Press.

    • Search Google Scholar
    • Export Citation
  • Douglas Gillian , Doe Norman , Gilliat-Ray Sophie , Sandberg Russell , and Khan Asma (2011). Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts. Cardiff: Cardiff Law School.

    • Search Google Scholar
    • Export Citation
  • Douglas Gillian , Norman Doe C. , Sandberg Russell , Gilliat-Ray Sophie , and Khan Asma (2013). Accommodating religious divorce in the secular state: A case analysis. In Maclean Mavis and Eeklaar John (eds.), Managing Family Justice in Diverse Societies, pp. 185201. Oxford: Hart Publishing.

    • Search Google Scholar
    • Export Citation
  • Enright Mairead (2009). Choice, culture and the politics of belonging: The emerging law of forced and arranged marriage. Modern Law Review, 72(3). DOI:10.1111/j.1468-2230.2009.00747.x.

    • Search Google Scholar
    • Export Citation
  • Gaffney-Rhys Ruth (2010) Case commentary Hudson v Leigh—The concept of the non-marriage. Child and Family Law Quarterly, 22.

  • Gaffney-Rhys Ruth (2013). Am I married? Three recent case studies on the effect of non-compliant marriage ceremonies. International Family Law, 3: 5358.

    • Search Google Scholar
    • Export Citation
  • Gill Aisha and Mitra-Khan Trishima (2012). Modernising the Other: Assessing the ideological underpinnings of the policy discourse on forced marriage in the UK. Policy & Politics, 40(1): 104119. DOI:10.1332/147084411X581763.

    • Search Google Scholar
    • Export Citation
  • Gilliat-Ray Sophie (2010). Muslims in Britain: An Introduction. Cambridge: Cambridge University Press.

  • Gilmore Stephen and Glennon Lisa (2016). Hayes & Williams’ Family Law (5th ed.). Oxford: Oxford University Press.

  • Grillo Ralph (2015). Muslim Families, Politics and the Law. Farnham, Surrey: Ashgate Publishing Company.

  • Hamid Sadek (2009). The attraction of “authentic” Islam, Salafism and British Muslim youth. In Meijer Roel (ed.), Global Salafism Islam’s New Religious Movement, pp. 384403. New York: Columbia University Press.

    • Search Google Scholar
    • Export Citation
  • Herring J. (2013). Family Law (6th ed.). Harlow: Pearson Education Limited.

  • Keshavjee M.K. (2014). Islam, Sharia & Alternate Dispute Resolution Mechanisms for Legal Redress in the Muslim Community. London: I.B.Tauris & Company.

    • Search Google Scholar
    • Export Citation
  • Koning Martijn de (2013a). How should I live as a “true” Muslim? Regimes of living among Dutch Muslims in the Salafi movement. The Netherlands Now, 25(2): 5372.

    • Search Google Scholar
    • Export Citation
  • Koning Martijn de (2013b). The moral maze: Dutch Salafis and the construction of a moral community of faithful. Contemporary Islam, 7(1): 7183. DOI:10.1007/s11562-013-0247-x.

    • Search Google Scholar
    • Export Citation
  • Kundnani Arun (2015). The Muslims Are Coming! Islamophobia, Extremism, and the Domestic War on Terror. London: Verso.

  • Law Commission (2015, December 17). Getting Married: A Scoping Paper. Law Commission.

  • Law Commission (2017). Cohabitation: The Financial Consequences of Relationship Breakdown. Law Commission, No. 307.

  • Moors Annelies (2013). Unregistered Islamic marriages: Anxieties about sexuality and Islam. In Berger Maurits (ed.), The Application of Sharia in the West, pp. 141164. Leiden: Leiden University Press.

    • Search Google Scholar
    • Export Citation
  • O’Sullivan Kathryn and Jackson Leyla (2017). Muslim marriage (non) recognition: Implications and possible solutions. Journal of Social Welfare and Family, 39(1): 2241.

    • Search Google Scholar
    • Export Citation
  • Parveen R. (2017). Do Sharia councils meet the needs of Muslim women? In Bano Samia (ed.), Gender and Justice in Family Law Disputes: Women, Mediation, and Religious Arbitration, pp. 142165. Cambridge: Brandeis University Press.

    • Search Google Scholar
    • Export Citation
  • Pearl D. and Menski Werner (1988). Muslim Family Law. London: Sweet & Maxwell.

  • Probert Rebecca (2012). The Changing Legal Regulation of Cohabitation From Fornicators to Family, 1600–2010. Cambridge: Cambridge University Press.

    • Search Google Scholar
    • Export Citation
  • Probert Rebecca (2013). The evolving concept of “non-marriage.” Child and Family Law Quarterly, 25(3): 314335.

  • Probert Rebecca (Ed.) (2014). Cohabitation and Non-Marital Births in England and Wales, 1600–2012. Basingstoke: Palgrave Macmillan.

  • Shah-Kazemi S.N. (2001). Untying the Knot: Muslim Women, Divorce and the Shariah. London: The Signal Press.

  • Vora Vishal (2016). Unregistered Muslim marriages in England and Wales: The issue of discrimination through “non-marriage” declarations. In Suleiman Yasir (ed.), Muslims in the UK and Europe II, pp. 129141. Cambridge: Centre of Islamic Studies, University of Cambridge.

    • Search Google Scholar
    • Export Citation
  • Walker T. (2017). Shari’a Councils and Muslim Women in Britain. Leiden: Brill.

  • Wray H. (2015). The “pure” relationship, sham marriages and immigration control. In Miles Joanna , Moody Perveez , and Probert Rebecca (eds.), Marriage Rites and Rights. Oxford: Hart Publishing.

    • Search Google Scholar
    • Export Citation

Online Materials

1 The growing numbers of young British Muslims who also identify themselves as Salafi-­oriented is a topic that is receiving increasing attention both within the UK and within European or Western nations (see, for example, Hamid 2009: 384–403).

2 This is in accordance with lex loci celebrations as provided for by the Foreign Marriages Act 1982–1947 and amended by the Foreign Marriage (Amendment) Act 1988.

3 For Muslim couples this may mean that the exact same nikaah ceremony which takes place in, for example, Pakistan will be recognized and held to be valid but would not be recognized or held valid if conducted in England.

4 Pseudonyms are used to protect the privacy of my interlocutors.

5 See, for example, the ComRes poll of 2000 adults commissioned by Resolution and published in November 2017, which found that two thirds of those in cohabiting relationships were unaware there is no such thing as a ‘common law marriage’ and four out of five cohabitants agreed that the law for cohabitees who separate is unclear. This has been supported by earlier academic research, see, for example, Barlow et al. (2005) in their analysis of the British Social Attitudes Survey carried out in 2000.

6 This points to how women themselves may be key in the decision-making process (see also Moors 2013, and Akhtar 2017).

7 Culminating in the Marriage Act 1949, which consolidated a number of statutes from 1823 onward.

8 One might query why nikaah-only marriages are placed in this category of non-marriage at all. If parties have undergone a ceremony of marriage recognized by their faith as a marriage, but which does not comply with the formalities of English law, then it is arguably a void marriage rather than a non-marriage. The difficulty arises from the manner in which the legislation determines a void marriage and in particular the requirement for ‘knowing and wilfully’ failing to comply with certain formality requirements (see s25 and s49 Marriage Act 1949).

9 In my research, in all 20 cases of the women that I interviewed, every one of them described themselves as married, irrespective of a civil ceremony. In all 100 case files of the IJB, there was no suggestion that the IJB considered the parties to be anything but married, again irrespective of compliance with English law.

10  MA v JA [2012] EWHC 2219 (Fam).

11 K v K [2016] EWCH 3380 (Fam).

12 See Probert (2013) for a detailed discussion of which specific non-compliances have resulted in the marriage being declared as a non-marriage. Some non-compliances appear to be given greater weight than others.

13  Vora (2016: 139–142) suggests a registration model based on the Scottish system to be the way forward. The Scottish system is not reliant on an authorized venue for religious marriages but requires the celebrant of a religious ceremony to be authorized. He argues that the lack of concern in Scotland for unregistered Muslim marriages indicates that the Scottish system is working.

14 The most recent attempt has been the Cohabitation Bill 2017, introduced as a Private Members Bill to the House of Lords, which underwent its first reading on 5th July 2017. To date, no further progress has been made.

15 See Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776 are just two of the most important cases in this area. English law of trusts is now developing a body of case law that is specifically attempting to provide a framework for the equalization of property rights concerning the family home, where parties are unmarried.

16 See Shahnaz v Rizwan [1965] 1 QB 390, Uddin v Choudhury [2009] EWCA Civ 1205 and Qureshi v Qureshi [1972] Fam 173.

17 More recently the judiciary has gone as far as providing relief to a cohabitee in her entitlement to her partner’s death in benefit pension, see exparte Brewster [2017] UKSC 8.

18 Note the Cohabitation Rights Bill [2017] is awaiting its second reading but it appears to have stalled again, so legislative reform remains on a back burner.

19  Akhtar (2015) in her work has undertaken online surveys of 20 participants who have entered in nikaah-only marriages and this has included both men and women.

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