Akhter v Khan [2018] has thrust the concept of and the array of issues surrounding Nikah marriages into the limelight. A Nikah marriage is a traditional Muslim wedding; however, it does not constitute a civil marriage. Indeed, English law does not recognise Nikah marriages and as such, Muslims in such marriages have the same legal status as cohabiting couples: largely ‘uncertain rights in regards to pensions, benefits or in the event of a dispute or separation[1]’. A recent study of 1000 British Muslim couples found that 60%[2] of Nikah marriages have not been registered as civil unions, adversely affecting the Muslim women within these relationships.
This article argues that the Nikah marriages, without civil enforcement, harm women in two ways: firstly, in instances of divorce, and secondly, through the facilitating of clandestine polygamous marriages. Nevertheless, headway can be made in ending this inequality through insisting all Nikah marriages are civilly registered.
Since Nikah marriages are exclusively religious rather than civil, divorcing Muslim couples cannot seek a remedy through the civil courts. As a result, they are forced into consulting Muslim Arbitration Tribunals (MATs) and Shari’a Councils. These courts were established under the 1996 Arbitration Act as a form of dispute resolution for financial disagreements stemming from ‘Shari’a compliant’banking policies. Despite this, the remit of MATs has significantly widened in order to cope with the deluge of divorce cases arising from Nikah marriages. Women are significantly disadvantaged when seeking a divorce via this avenue in three ways.
Firstly, as argued by Elham Manea, a Muslim legal academic, MATs and Shari’a Councils are dominated by male ‘judges’. As a result, many are unsympathetic towards women’s cases and demonstrate a total lack of understanding in regards to the custody of children post-divorce. Indeed, Maryam Namazie, another Muslim academic, has complied testimony from over twenty women alleging sexist treatment within these quasi-courts.
This sexist mindset has given rise to the second issue facing women seeking a divorce from a Nikah marriage - the ‘courts’ deploy archaic and sexist Shari’a procedures towards females. For instance, the courts recognise the ‘triple talaq’ rule. This states that a man can divorce his wife by uttering the word talaq – divorce – thrice, whilst a woman has to endure months of arbitration in an MAT. Furthermore, in these courts, a woman’s testimony is often considered worth half as much as a man’s, hence the Islamic Shari’a Council’s website stated how ‘women are kind-hearted human beings who are governed by their emotions, a character strongly needed for bringing up the children. On the other hand, man is governed by his mind more than his emotions’ and that ‘Man’s mind is uni-focal while the women’s mind is multi-focal’[3], in other words, a woman is too distracted to prove a reliable witness. Thus, it is clear Nikah marriages can coerce Muslim women into a divorce process which is devoid of any consideration for their wellbeing and rights.
Moreover, since religious divorces are not recognised in civil law, a woman cannot claim any alimony from her husband and, indeed, the sexism of the Shari’a councils often ensure that women receive no financial assistance following the collapse of their marriage. As a result, the Nikah marriage indirectly leads to discrimination and a state of ‘legal limbo’[4] for women when it comes to seeking a divorce.
Nikah marriages have also disadvantaged women through allowing Muslim husbands to enter into secret polygamous marriages. Polygamy is illegal in the UK, but since Nikah marriages are not viewed as a marriage in the eyes of the law, many British Muslim men have entered into polygamous relationships. Indeed, it is estimated that 10%[5] of Nikah-married women are in polygamous marriages. This has disastrous effects on their lives, namely that they are left with their children without any financial help if a husband ‘prefers’ once wife over another. Indeed, 1/3[6] of Muslim in polygamous marriages refused to enter them from the outset and 90% desiring to be liberated from them, serving only to reinforce how Nikah marriages can be incredibly pejorative for Muslim women.
Some headway has been made in common law towards recognising the issues surrounding Nikah marriages. In Akhter v Khan [2018], the court recognised a Nikah marriage as ‘void’ rather than a ‘non marriage’ upon divorce, entitling Akhter, the ex-wife, to financial assistance. However, in order to prevent the disastrous impacts of Muslim women’s lives Nikah marriages can have, I propose two key recommendations.
Firstly, it should be a legal requirement that all Nikah-married couples register their union as a civil marriage. This would not only obstruct women from seeking help from the intensely sexist Shari’a courts, but also allow them an appropriate degree of alimony should their marriage collapse. Moreover, the registration of Nikah marriages would end the latent polygamy in the British Muslim Community since it would directly contravene English law and thus be punishable in a UK court.
Secondly, Nikah-married spouses should be aware that their marriage is not legally binding. In Akhter,it was found that neither spouse realised that their marriage was not recognised in English law and this is not a unique example, hence one study found 28%[7] of Nikah couples believed the same. Greater education would empower women and enable them to prevent the injustices rife today.
To conclude, Nikah marriages can have devastating effects on British Muslim women’s lives, particularly due to their implications for divorce and facilitation of polygamous relationships. Nevertheless, these effects can be prevented through the registration of all religious marriages.
