A recent report published by Aurat: Supporting Women has highlighted the limited legal rights with which many Muslim women are left when looking to bring an end to their marriage.
The report entitled “Equal and Free? 50 Muslim Women of Marriage in Britain Today” cites examples from many women who were married under a Nikah (Islamic ‘marriage’ ceremony) conducted in this country. Such weddings in isolation do not meet all the necessary requirements of the English Marriage Acts and are not valid in English law. In order to be valid, the couple have to enter into a civil ceremony, which is very often not progressed.
Whilst most of the 50 women interviewed for the report identified as being married, only around 10% were in marriages legally recognised in English law.
If a Muslim marriage is not recognised in English law then should it ever break down, the ‘husband’ and ‘wife’ will leave it only with the rights and obligations that a cohabiting couple will have. These are significantly less than the rights and obligations of a husband and wife.
This is no better illustrated than in the recent Court of Appeal case of A (A Child) [2014] EWCA Civ 1577. The father was a member of a wealthy ruling family in the Middle East. Whilst he and the mother of the 5 year old child had never lived together, they had engaged in a Muslim marriage ceremony. On the breakdown of their relationship, the wife is understood to have believed that her entitlement was that of a wife in English law.
In actual fact, her relationship lacked any legal status at all in English law. The claims she had were restricted to those of a mother on behalf of her child.
The obligations on the child’s father were significantly curtailed as a result. He was only required to make provision in the form of maintenance and the temporary transfer of a property to the mother, on the basis that it would revert back to the father when the child completed education.
He was also able to run what is known as a ‘millionaire’s defence’. Such a defence entails the father declaring to the court in so many words that “whatever the liability I am deemed to have, I will be able to afford the sum I am required to pay at the end of the case so there is no need for me to provide disclosure”.
Whilst the mother argued that disclosure was necessary as the size of the father’s resources should inform the child’s needs, it was explained to her that even were it to draw adverse inferences from the husband’s refusal to provide disclosure, the mother’s needs would still only be dictated by her requirements as a mother. When the Court looked at the budget she produced, the judge observed that it was actually more like that of a former wife, and so appropriate reductions were made.
The judge emphasised that the Courts needed to “guard against giving the mother a former wife’s entitlement on the child’s coat tails”.
As if that wasn’t bad enough for the mother, she was penalised further through the making of a costs order against her – she was not “entitled to assume that a Court will countenance her unmerited applications by declining to order costs against her”.
This is clearly a troubling state of affairs for many Muslim women in England & Wales, many of whom are in their early thirties or younger and yet to realise the extent of their potential exposure. Should the status of their relationship remain unchanged and the couple separate after all children have reached the age of 18, the mother’s claims are potentially removed in their entirety.
In comparison to the claims of a wife in that situation, where the presumption of an equal division grows stronger the longer the marriage, it is clear that much education is required to ensure that wherever possible:
(a) the appropriate civil ceremony is arranged in conjunction with the Nikah
(b) existing Nikahs that have been conducted without the necessary civil ceremony are rectified.
Andrew Barton is a partner in the Stephens Scown Exeter Family solicitors team and a Resolution Accredited Specialist in complicated financial matters arising from divorce. He regularly advises clients in relation to pre-nuptial agreements, as well as divorce and financial matters.
Stephens Scown has offices in Exeter, Truro and St Austell. Its top-rated family team advises clients on a wide range of family law issues including divorce and family finance. To contact Andrew, please call Exeter 01392 210700, email solicitors@stephens-scown.co.uk or visit www.stephens-scown.co.uk