Camilla Choudhury- Khawaja was Called to the Bar in 1998 by the Honourable Society of Grays’ Inn, following in the footsteps of both her Grandfather and Father. Camilla is a family law barrister with a specialist practice, The Women’s Lawyer, specialising in matrimonial finance and Islamic Law. Camilla lives with her sons, Aman & Aden in Hertfordshire.
In this issue, I wish to sound a strong note of caution to those couples who do not enter into the formalities of marriage under the law of England and Wales and why there remains a gaping hole in our family laws which need to be addressed urgently.
Despite the Law Commission’s proposals, it is anticipated that many Muslim couples are still likely to undergo a non-legally binding Nikaah ceremony (to the exclusion of a civil marriage) and unbeknownst to them will be treated as cohabitants by the law in the event of the ‘marriage’/relationship coming to an end; the impact of which is felt most strongly by women.
The disproportionate impact of the law on black and minoritized ethnic women was usefully highlighted by Mandip Ghai, Senior Legal Officer at Rights of Women, and Nazmin Akthar, Co-Chair at Muslim Women’s Network UK for the enquiry led by the Women and Equalities Committee of the UK Parliament.
In Islam obedience to the law of the land is a religious duty. The Qur’an commands Muslims to remain faithful to not only Allah and the Prophet Muhammad(sa), but also the authority they live under: O ye who believe! obey Allah, and obey His Messenger and those who are in authority over you (Ch.4: V.60). It is therefore my humble view that any country or government, such as ours, that guarantees religious freedom must be owed loyalty and a good start would be to marry under the law of the land.
The law generally regards parties to a marriage which is not legally recognised as cohabitants, and their marriage as a “non-marriage”, rather than as a void marriage. Although it is not always strictly necessary to do so, the parties to a void marriage may seek a decree of nullity. One advantage of doing so is that, when granting the decree, the court has the same powers to make orders for financial provision as on divorce. This contrasts with the position for “non-marriages” where the parties cannot petition in an English court for a decree of divorce or nullity and consequent financial provision, if their relationship breaks down; and the court has no power to override the strict legal ownership of property.
In 2018, the Family Court ruled that a Nikaah marriage was a void marriage and not a “non-marriage”. The Government appealed. In a judgment published in February 2020, the Court of Appeal allowed the appeal and held that there had been no ceremony in respect of which a decree of nullity could be granted. For all intents and purposes this means if you have married under Islamic law only, you are cohabitants under the law of England and Wales not husband and wife.
Reform of Cohabitational Law
The Women and Equalities Committee Chair Caroline Nokes has criticised the Government’s rejection of a recommendation to reform cohabitation law, saying it relies on “flawed logic” and “risks leaving a growing number of cohabitants and children vulnerable.” A group of cross-party MPs demanded reforms to laws which leave cohabiting couples with ‘inferior’ protections to those who have formally married by way of a civil marriage. With cohabitating couples representing the fastest growing family type in England and Wales, the Women and Equalities Committee’s Report, The rights of cohabiting partners, highlights the risks faced – often by women – upon relationship breakdown or the death of a partner.
In the 25 years since 1996, the number of couples living together as cohabitants has more than doubled to 3.6 million, representing around 1 in 5 couples living together in the UK today. Despite this, a lack of legal protections means that, upon relationship breakdown, the financially weaker partner has no automatic rights to the family home. Instead, they rely on complicated property law and trusts principles contained in the Trusts of Land and Trustees Act 1996 (ToLATA). Being a practitioner in this area of law I see first hand the impact the litigation has on families, especially upon women and children. The other fundamental issue being the potential for debilitating legal costs which can in itself be the biggest hurdle to overcome.
One of the largest issues, finds the report, is the common misconception that cohabiting couples automatically gain rights equal to a marriage, the so-called ‘common law marriage myth’. 46% of those in England and Wales assume cohabitants living together form a ‘common law marriage’, rising to 55% of households with children. This erroneous belief can have ‘significant consequences’, with many falsely believing they have legal protections which turn out to be non-existent.
How to protect yourself in an Islamic Marriage
- The most important thing to do is to arrange a separate civil marriage ceremony to register your marriage. This will ensure that you are legally married and will ensure your rights are protected under English law in the event of a divorce.
- Seek legal advice when drafting your Islamic marriage contract. These can include pre-nuptial agreements. Whilst pre-nuptial agreements are not legally binding under English law, they are highly persuasive if they are drafted correctly and certain conditions are met. A pre-nuptial agreement will help plan what will happen to both spouses’ assets in the event of a divorce. It helps both parties to know where they stand and what they may be entitled to in the event of a separation. If you have already entered into your marriage contract, you could consider a post-nuptial agreement instead.
- Ensure that property and bank accounts are held in joint names. As the legal owner of assets, you will be entitled to your share, regardless of whether or not you are legally married. This is absolutely crucial.
A personal perspective
There must also be a change in the legislation so that the Marriage Act 1949 is updated to recognise the Islamic Nikaah and give Muslim married couples the full protection of the law, however it is clear from my practice in this area of law that mainly women suffer from the lack of protection a legally recognised marriage provides.
It is of paramount importance our communities recognise the impact upon the next generation when women are at a disadvantage, indeed when society is at its’ worst, women and children always suffer the most, especially mothers trapped in abusive relationships unable to financially escape. There is the added complexity when our men take second and third wives, exploiting the legal loop hole of an unrecognised marriage.
Many women end up parenting alone but few would choose that path given the option of another set of broad shoulders to help carry the load. I will say however should you find yourself in this position or indeed decide upon being a single parent as the best choice for you and your children, have courage and faith, knowing that the vast majority will be nursing admiration for your chosen path. It is uncommon to see a woman explore her resilience rather than opt for co-dependency, sometimes of course it is the only choice, indeed it was mine; my hope being that my sons will be the beneficiaries of the example I have set.
Never let anyone limit you in what you want from life and the happiness you wish to feel. Allah is the most kind, He can make the impossible possible. Through prayer the world can truly be your oyster, carved out by the very best of creators.
Camilla Choudhury – Khawaja, Barrister At Law, Founder of The Women’s Lawyer www.thewomenslawyer.co.uk