LONDON — A Muslim woman can have a British court dissolve her religious marriage and divide the couple’s assets even though the union is not recognized under British law, a judge has ruled, a rare finding with potential implications for the rights of thousands of women.
In Britain, most Muslim couples who are wed in religious ceremonies do not register their marriages with civil authorities, surveys have found. That step is necessary to make a marriage legally valid. Their marriages have existed only under Shariah, the legal code of Islam based on the Quran, and could be ended only under Shariah, because British courts did not acknowledge the existence of the unions. The circumstance often put women at a significant disadvantage.
But British law recognizes a gray area: a marriage that is not legally valid, but is real enough that a judge can acknowledge it — and declare it void. Crucially, when a court voids an invalid union, just as in a divorce, the judge can also decide matters like support payments and division of property.
On Wednesday, Justice David B. Williams of the High Court of Justice in London ruled that the marriage of a Sunni Muslim couple, which was never registered with the government, fell into that middle ground. The wife, a lawyer, had asked the courts to take on the case, while her husband, a businessman, had insisted that legally, there was no case because there was no marriage.
“In every sense save for the issue of legal validity this was a marriage and a long one at that,” Justice Williams wrote in his decision. No one disputed that the two were married by an imam in front of many witnesses, he added, and “this was followed by 18 years during which they considered themselves husband and wife,” as did everyone in their families and community.
The ruling, which applies throughout England and Wales, means that the wife, Nasreen Akhter, can ask a civil court to award her a share of the couple’s assets. That includes property that is only in the name of her husband, Mohammed Shabaz Khan — a common arrangement in Muslim marriages — that previously would have been beyond her reach.
British legal experts said they knew of no other ruling that allowed the courts to get involved in dissolving a religious marriage that was never registered with the government. But they cautioned that it remained to be seen how broadly this precedent would apply. Other courts will have to interpret the ruling, and Britain’s highest tribunal, the Supreme Court, could weigh in.
“I would hope that this case raises awareness of the need to ensure that a valid civil marriage is entered into so as to provide full protection and civil rights to women and children,” said Anne-Marie Hutchinson, one of the country’s leading family lawyers and a partner at the firm Dawson Cornwell.
“This could have easily bounced the other way on different facts and should not give misplaced comfort to those considering having only a religious marriage conducted here in the U.K.,” Ms. Hutchinson added.
Some of the British news media characterized the decision by Justice Williams as an official recognition of Shariah. It was not, a point he made explicitly, writing that the evidence was “clear, convincing and positive” that the marriage was not legally valid.
Ms. Akhter claimed that she and her husband had planned at the outset to register their marriage with civil authorities, and that several times over the years, she asked to do it but he refused. Mr. Khan denied that they had ever discussed civil registration.
Justice Williams cited the issue repeatedly, saying he believed Ms. Akhter, but he did not say clearly whether her intent to register was crucial to his conclusion.
A study commissioned by the British government and published early this year recommended requiring that couples register their religious marriages with the government. The study, by a panel of legal and religious experts, including Ms. Hutchinson, looked into the operation of the dozens of local councils that administer Shariah for Sunni Muslims in Britain, whose workload it found consists almost entirely of divorce applications brought by women.
The study found that the Shariah councils vary in their interpretation of the religious code, often steer women toward remaining married, charge significant fees for their work, have no formal authority over division of assets and often press wives to make concessions — including payments of money — to get their husbands to agree to divorce.
The decision does not apply to many people living in Britain who were married overseas and already have access to British divorce courts. If a marriage is recognized as fully valid by the country where it took place, then in general, British law also accepts it.
But until now, the only recourse for someone like Ms. Akhter, who married in London, would have been to present her case to a Shariah council. (The process is somewhat different for the smaller Shiite Muslim community in Britain.) Under the religious law, a man can divorce his wife unilaterally, but a woman does not have that power and must ask a Shariah council to grant her a divorce.
Mr. Khan and Ms. Akhter, both 46, married in 1998 and have four children, ranging in age from 8 to 18. She left him in 2016.
Their case drew attention in legal circles because it reached the High Court around the time when the government study of Shariah was released. The attorney general’s office also weighed in, submitting arguments to the court. Justice Williams wrote that he had reviewed more than 1,500 pages of legal precedents.
Orignially published in NYT.