Intisar A. Rabb comments on the High Court of Justice of England and Wales’ recent decision on the Akhter v. Khan case. The case is one example of the ongoing examination of the legal status of Islamic marriages and divorces under UK law.
Akhter v. Khan, Case No. Case No: ZC16D00278,  EWFC 54 (UK High Court, England and Wales Family Court, 31 Jul. 2018) [Mr. Justice Williams]
A UK family court considered whether and how UK law recognizes a marriage conducted according to Islamic law that had not been accompanied by a civil law marriage. The husband contended that the couple was never married, and the wife—petitioning for divorce—insisted that they were. The two had signed an Islamic law contract (nikāḥ) accompanied by a ceremony abroad, lived together and had children together, and held themselves out as married for years both abroad and in the UK. The court concluded that, on those facts and considering the UK laws on marriage—as interpreted, for the first time, through Human Rights Act of 1998 and the best interests of the child—that the marriage was “void” or “voidable.” This determination meant that the couple was not validly married under UK law but that their union was also not considered a non-marriage. Instead, as a void marriage, their union was something akin to what Islamic law would label a “defective marriage.” The court had essentially concluded that, although a marriage was not properly concluded or registered according to the law, the steps taken toward one would in some measure be recognized by the law and entitle the wife to certain legal protections upon dissolution of the union. In this case, this meant that the wife was entitled to a decree of nullity from the court, and that the wife could take advantage of certain UK civil law remedies for maintenance and child custody upon dissolution.
Despite media headlines from major UK outlets claiming that “British court recognises sharia law in landmark divorce case” (Telegraph) and that “English law applies to Islamic marriage” (The Guardian), the case was more complicated. Commentators have criticized the judgment for failing to deal with the precise contours that distinguish between so-called “non-marriages” from “void [or voidable] marriages.” Moreover, the judgment leaves open the question whether and how this case extends to other religious or private marriage arrangements in the UK, particularly in situations where two parties inadvertently fail to comply with UK family law requirements. In such cases, there is an open question whether the court can make a declaration that the marriage is either valid or void, or whether it must instead fail to recognize any semblance of marriage at all.
For further review, see the SHARIAsource Case Brief outlining the facts and presenting excerpts from the case itself, as well as commentary on related laws by experts on UK family law (linked below).
Intisar A. Rabb, Case Brief: UK Family Law Court recognizes Unregistered Islamic Law Marriage as Void but Entitled to Protections for the Wife and Children upon Divorce (Akhter v. Khan, July 2018)
SHARIAsource SYMPOSIUM :: On “The Independent Review into the application of Sharia law in England and Wales” by the UK Home Office with Shaheen Sardar Ali (University of Warwick) & Ralph Grillo (University of Sussex) [March 19, 2018]
Shaheen Sardar Ali, Blurred Boundaries; Muddied Waters or Multiculturalism Gone Astray? Some reflections on The Independent Review into the application of Sharia law in England and Wales (19 Mar 2018)
Ralph Grillo, Review of ‘The application of sharia law in England and Wales, Cm 9560’ (19 Mar 2018)
UK Home Report on Islamic Law in England and Wales :: The Independent Review Into the Application of sharia law in England and Wales, Presented to Parliament by the Secretary of State for the Home Department by Command of her Majesty (18 Feb. 2018)
Ralf Michaels on Conflict of Laws :: Islamic Marriage and English Divorce – a new Decision from the English High Court (2 Aug. 2018)
Hadeer Soliman, Gender Issues Are a National Problem, Not Just a Muslim Problem: A Response to Baroness Cox’s Statement (13 Aug. 2018)
Intisar A. Rabb is a Professor of Law at Harvard Law School and editor-in-chief of SHARIAsource.