Marriage law in England and Wales is being modernised
Arras coins being exchanged in a Catholic wedding ceremony

The laws governing weddings in England and Wales are changing. The Law Commission embarked last year on a consultation exercise with a set of proposals that needed more than 450 pages to cover places and priests (of any kind), the where and how of getting married. It closed in January and its recommendations are expected in the second half of this year. Despite the continuing decline in opposite-sex marriages in Britain, more than two-thirds of all families with children are married, and same-sex marriages are on the rise. You might, then, have expected a little more discussion on these changes in the media – especially as the institution of marriage has legal and financial consequences, in addition to being imbued with emotional, social and religious significance.

The main law dealing with weddings dates to 1836. The Law Commission saw the need to bring it into line with modern life, so that couples who tie the knot by bungee jumping for example (literally taking the plunge) do not come undone if the marriage ends. Or at the less adventurous end, to accommodate couples who simply want to marry in their back garden. Currently, there are many restrictions on the premises that are licensed to conduct weddings, which, along with other dos and don’ts, determine whether your wedding is legal or not.

For women’s rights campaigners, the legality of a wedding ceremony is important so that women are not left high and dry if the marriage ends. For many minority women, trapped in religious marriages, without recourse to the infinitely more equitable financial relief and child custody provided by civil courts in divorce proceedings, this question becomes even more pressing.

Groups like Southall Black Sisters have seen at first hand the consequences for Muslim women whose religious marriages have not been backed up by a civil registration and who have been forced to seek a divorce in sharia councils, with worse outcomes. The government’s independent review into sharia law found that nearly all those who use these councils are women and 90 per cent of them go for divorce – a fact that is both chilling and sobering. Muslim men do not have to face shaming interrogations by conservative “judges” on the reasons for their marital breakdown, as they can unilaterally say “talaq” (meaning “divorce” or “repudiation”) three times and gain an instant Islamic divorce.

The case for compulsory civil registration

Although the review’s remit was limited and bitterly opposed by the One Law For All campaign, which called for a broader inquiry into the human rights concerns raised by sharia council practices, it found enough examples of bad practice for it to recommend that civil marriages are conducted before or at the same time as the Islamic marriage ceremony to ensure that “a greater number of women will have the full protection afforded to them in family law and the right to a civil divorce, lessening the need to attend…sharia councils”. Short of calling for the councils to be banned, this recommendation carries the hope that they will wither away on the vine in response to their growing irrelevance. What the review failed to recognise is the tremendous and growing cultural and religious pressures on women to seek an Islamic divorce in order to win community approval.

British courts do not recognise religious marriages unless the ceremony has incorporated all the civil requirements for a legal marriage. However, the Akhter v Khan case, which was first heard in the High Court in 2018, blurred the boundary of legality of a religious marriage. When Nasreen Akhter petitioned for divorce, her husband’s response was that their nikah, or religious ceremony, conducted in a restaurant in Southall, was not valid under English law and so she had no right to any property or finances. The Judge made the fine distinction that this was not a non-marriage, as the husband claimed, but a “void” marriage which would give Akhter rights equivalent to other married women.

This was overturned by a court of appeal judgement in 2020, which concluded that the ceremony in the restaurant was a “non-qualifying ceremony”, a non-recognition of a religious ceremony that should have pleased secular feminists, except that they were now faced with a quandary: this judgment would leave women without financial rights or legal remedies. Southall Black Sisters opposed the judgement with the nuanced line elaborated by Pragna Patel, their director, that:

We have always said that we are not asking the court to recognise religious marriages but to provide remedies where women have been forced, coerced or deceived into a religious marriage. We are not opposed to religious marriages at all – that would be in contravention of the human right to freedom of religion! So it is not religious marriage per se that is the problem but state failure to ensure that women are not deprived of their marital rights.

In January, at a webinar, “Religion, Marriage and Minority Women’s Rights in Family Law”, organised by One Law for All and Southall Black Sisters, speakers were unanimous in calling for a universal compulsory civil registration system. The rise in religious marriages, particularly among Muslims, is partly the consequence of religious fundamentalism, “a demand for public manifestations of piety” as Yasmin Rehman, CEO of Juno Women’s Aid, put it. She emphasised the need for the civil marriage to take place before the religious marriage to avoid the situation that Akhter found herself in, where her husband promised a civil marriage but did not deliver. Women are often powerless to force the issue. Rehman has found that religious marriages are being used by young people to legitimise short-term sexual relationships. This leads to complications, especially when it happens in secret: the relationship might break down, the girl might be forced into an arranged marriage and then be blackmailed by her first husband for undergoing two nikahs.

The grey area around faith marriages

Uzmaa, a survivor of a religious marriage, spoke anonymously about her experiences. She described a “fairytale wedding” in front of 500 guests and an imam who had brought two witnesses with him, in a mosque that she believed to be a registered building. This was in 2009. Nearly a decade later, while Uzmaa was visiting her sick mother in India, her husband pronounced triple “talaq” via Whatsapp – a practice that was banned in India in 2017. He took out a non-molestation order against her so she was unable to return to her marital home. After 20 months of separation from her three children, she is now finally able to have weekly supervised contact with them. She movingly described how she was left without financial remedy: “I used to donate to foodbanks and now I am using donations from foodbanks.”

Uzmaa was deceived into believing that she had been legally married. However, confusion also arises from another anomaly: for the purposes of immigration on a spousal visa, the UK government recognises a religious marriage if it is a valid marriage in the country of origin, for example, Pakistan.

Gita Sahgal, spokesperson for One Law for All, explained how that gap in protection for women is exploited by men who use draconian immigration laws to harass women and deprive them of their rights. She also spoke about how the rise of religious fundamentalism had affected marriage practices in other communities. Among Hindus, it has spurred the drive to maintain the purity of their arranged marriage systems to avoid “cultural genocide”, as one Hindu leader put it, by preventing women from marrying a Dalit or even someone outside a specific caste or sect. The Hindu right in the UK has successfully campaigned against untouchability being recognised as grounds for discrimination in the equalities legislation.

Many speakers at the webinar were concerned that the Law Commission’s remit was very narrow. The nub of the matter is this: the Law Commission’s “view is that the law should continue to provide a framework that respects and accommodates different beliefs.” But a failure to be critical of certain religious practices is damaging to women’s rights. Patel called for legal remedies to be available to women who had been coerced or deceived into a religious marriage, granting them a “decree of nullity”, voiding their marriage – but with a guarantee it won’t adversely affect their financial rights, as happened in the Akhter v Khan case.

Rehman was concerned at the new status that imams might be given in the new scheme. Whilst imams on the Asian sub-continent are consulted mainly on religious practices such as fasting or prayer times, in the UK they have the power to refuse marriages across Muslim sects, interfaith or interracial marriages or same-sex marriages.

A positive outcome of this consultation is that it may open the door to a variety of legal ceremonies, like humanist weddings, to suit our current times. However, it is difficult to understand the British government’s continued commitment to the institution of marriage as the building block of a stable society. Given the rise in popularity of cohabitation, isn’t it time to bring forward legislation to give cohabitees the same rights as married partners? Then women like Uzmaa or Nasreen Akhter would have nothing to fear.

This article is from the New Humanist summer 2021 edition. Subscribe today.