Written evidence submitted by

Miranda Fisher, partner, and Shabana Saleem, associate (barrister), Charles Russell Speechlys

Proposed amendments to the civil law:

1                    Amendment to Section 10A of the Matrimonial Causes Act 1973 (as inserted by the Divorce (Religious Marriages) Act 2002) to include Islamic divorce: to pressure the opposing party to grant a religious divorce so neither party is trapped in a religious marriage; and

2                    Recognition of Islamic marriages as void marriages as opposed to non-marriages: to reduce dependence on Sharia Councils to deal with family matters (namely, divorce and financial arrangements following separation and divorce), and provide the protection of applications to the Family Court for financial remedies for the financially weaker party.0

Appendix 1: legislation referred to below

1                    Amendment to Section 10A of the Matrimonial Causes Act 1973 

1.1               Section 10A of the Matrimonial Causes Act 1973 (as inserted by the Divorce (Religious Marriages) Act 2002) should include an Islamic divorce. 

1.2               Section 10A permits the Family Court to order that a decree nisi should not be made absolute until the parties have made a declaration that they have taken such steps as are required to dissolve their marriage in accordance with the prescribed religious usages by virtue of which they were married. The aim being to pressure the opposing party into granting the religious divorce so neither party is effectively trapped in a religious marriage

1.3               The Lord Chancellor must make an order to include Islamic divorce with the definition of ‘prescribed usages’ under s10A(1)(a)(ii) and such an order must be made by statutory instrument.

2                    Recognition of Islamic Marriages as Void Marriages

2.1               For the purposes of divorce proceedings in England and Wales, a marriage must be valid at its inception.  If it is not valid, it will fall into one of the following categories:

2.1.1                   Void – created by statute (s11 Matrimonial Causes Act 1973) and capable of annulment; or

2.1.2                   Voidable – created by statute (s12 Matrimonial Causes Act 1973) and capable of annulment; or

2.1.3                   Non-marriage – created by case law (see further below) and in respect of which there can be neither divorce nor annulment.

2.2               Proceedings for financial remedies before the English Court are only available following proceedings for divorce or annulment.  Islamic marriages which have not also undergone civil registration at inception are largely regarded as non-marriages by the English Court, and no application to the Court for financial remedies is available to either party.  In those circumstances often the only option available, usually to the wife as the financially weaker party, is to fall back on the auspices of the Sharia Council to deal with family matters (namely, divorce and financial arrangements following separation and divorce).

2.3               Void Marriages: Section 11 of the Matrimonial Causes Act 1973 provides for the circumstances in which a marriage will be void.  The important sub-section for our purposes is s11(a)(iii) which provides that a marriage is void where “the parties have intermarried in disregard of certain requirements as to the formation of marriage”. 

2.4               The Marriage Act 1949 sets out the circumstances when a marriage can be void for want of formality. [i] If a marriage is found to be void, the Family Court will have jurisdiction to make the range of orders for financial provision by virtue of an application for financial remedies. Void marriages are capable of being annulled although, as a void marriage is invalid ab initio, it is not necessary for the Court to ratify and confirm this. It is often preferable, however, to obtain the Court's ratification by annulment to provide clarity and, importantly, to enable a party to apply for financial orders.

2.5               Non-Marriages: Since the turn of the new millennium, the judges of the Family Division have developed the concept of non-marriage (as distinct from a void marriage) on the basis that there has been no attempt whatsoever to comply with the formalities of the Marriage Acts, as opposed to merely some technical breaches of the requirements. If there is a non-marriage there can be no decree of nullity and no application to the court for financial remedies.

2.6               The concept of non-marriage has been created by Judges as a ceremony which fails in multiple respects to comply with the formal requirements of the Marriage Act 1949 and therefore is incapable of creating a marriage recognised as a marriage (not even a void one) under English law[ii].  The Courts have found that a non-marriage “purports to be a marriage according to a foreign religion” and makes “no attempt to be an English marriage within the Marriage Acts” (Gandhi v Patel [2002] 1 FLR 603). 

2.7               The Family Court approaches the question of whether a marriage is valid, void or a non-marriage on the facts of each case, although where a non-Anglican religious ceremony of marriage has not also undergone civil registration at inception this is likely to be regarded as a non-marriage:

   “Questionable ceremonies should… be addressed on a case by case basis, taking account of the various factors and features… including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage [lawful under English law]; and (d) the reasonable perceptions, understandings and beliefs of those in attendance.” (Hudson v Leigh [2009] EWHC 1306 (Fam), [79] applied in El Gamal v Al Maktoum [2011] EWHC B27 (Fam)).

2.8               Muslim women marrying under an Islamic ceremony of marriage in England will be likely to know that this ceremony of marriage will be valid in a Muslim country but may have no knowledge of English law.  They may be very young, they may speak little English; they may believe that they are married under English law.  They certainly believe they are validly married and are not simply cohabiting with their husbands. In their own culture and religion they are right in that belief.  However, when the marriage breaks down, possibly many years later, these women generally find they are not married, in the eyes of English law, and have no right or protection to claim for financial provision from their husbands.  They also find that their children are illegitimate as a matter of English law.

2.9               There may be ceremonies purporting to be a marriage which fall so far short of anything recognisable as a marriage ceremony that they are non-marriages, but Islamic marriage ceremonies, by virtue of which both parties regard themselves as married (and are indeed married in accordance with their own culture and religion) and by which they are recognised within their own communities as being married, and their children being legitimate, should fall within the definition of a void marriage. This would then give rise to the possibility of an application to the English Court for a decree of nullity and for financial provision which is at present not available.  This would provide the protection of applications to the Family Court for financial remedies for many Muslim women, usually the financially weaker party to the marriage, and a reduction in dependence for those women on the Sharia Councils.

2.10           Without the availability of an application for financial remedies, these women only have available to them an application as a cohabitant, which in their own eyes and the eyes of their community they are not, and in respect of which the law is presently deeply unsatisfactory, or an application under Schedule 1 of the Children Act 1989, if they have children, and which is specifically limited to financial provision for those children and not for a woman in her own right.  This is regardless of whether a woman has been, she believes, married to her husband for many years and has made a significant contribution to that marriage as a wife. 

2.11           It should also be noted that there is a marked inconsistency between the approach of the Family Court in England to (A) a woman who has been married under an Islamic marriage ceremony in a Muslim country, where that marriage is recognised as being legal under the laws of that country, and (B) a woman who has undergone the same ceremony in England and Wales, which is treated as a non-marriage. 

2.12           In the case of (A), the woman who is now habitually resident in England will have a right to:

2.12.1               petition the Family Court in England for divorce as a marriage which is recognised as valid in the country where it took place is regarded as a valid marriage for the purpose of divorce proceedings in England; or

2.12.2               if the divorce takes place in the country of origin of the marriage, apply to the Family Court for financial provision following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”)[iii]. 

2.13           In the case of (B), there will be no availability of a petition for divorce or an application for financial provision following an overseas divorce because the marriage is regarded as fundamentally flawed and a non-marriage.  This is regardless of the fact that the circumstances and procedure of the marriage may be identical to that which took place in the country of origin where such a ceremony would be valid.  This creates unfairness as between two Muslim women who are married in identical circumstances: one in their country of origin; the other in England and Wales. 

2.14           It is not suggested that Islamic marriages should be treated as valid marriages where there has been no civil registration; simply as void marriages.  There is no distinction between a void marriage and a non-marriage marriage: a void marriage is a non-marriage. The recognition of Islamic marriages which take place in England as void marriages would remedy the inconsistency created by Part III, and ensure financial protection for those Muslim women who do not presently have the ability to seek the assistance of the Family Court to provide for themselves and their children following separation and divorce. 

APPENDIX 1

Matrimonial Causes Act 1973

10A Proceedings after decree nisi: religious marriage

(1) This section applies if a decree of divorce has been granted but not made absolute and the parties to the marriage concerned—

(a) were married in accordance with—

(i) the usages of the Jews, or

(ii) any other prescribed religious usages; and

(b) must co-operate if the marriage is to be dissolved in accordance with those usages.

(2) On the application of either party, the court may order that a decree of divorce is not to be made absolute until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages is produced to the court.

(3) An order under subsection (2)—

(a) may be made only if the court is satisfied that in all the circumstances of the case it is just and reasonable to do so; and

(b) may be revoked at any time.

(4) A declaration of a kind mentioned in subsection (2)—

(a) must be in a specified form;

(b) must, in specified cases, be accompanied by such documents as may be specified; and

(c) must, in specified cases, satisfy such other requirements as may be specified.

(5) The validity of a decree of divorce made by reference to such a declaration is not to be affected by any inaccuracy in that declaration.

(6) “Prescribed” means prescribed in an order made by the Lord Chancellor after consulting the Lord Chief Justice and such an order—

(a) must be made by statutory instrument;

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) “Specified” means specified in rules of court.

(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

11. Grounds on which a marriage is void.

A marriage celebrated after 31st July 1971, other than a marriage to which section 12A applies, shall be void on the following grounds only, that is to say—

(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say where—

(i) the parties are within the prohibited degrees of relationship;

(ii) either party is under the age of sixteen; or

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);

(b) that at the time of the marriage either party was already lawfully married or a civil partner;

[...]

(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.

12. Grounds on which a marriage is voidable.

(1) A marriage celebrated after 31st July 1971, other than a marriage to which section 12A applies, shall be voidable on the following grounds only, that is to say—

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;

(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;

(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner;

(g) that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage;

(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.

(2) Paragraphs (a) and (b) of subsection (1) do not apply to the marriage of a same sex couple.

Marriage Act 1949

25. Void marriages.

(1) A marriage shall be void in any of the following cases.

(2) Case A is where any persons knowingly and wilfully intermarry according to the rites of the Church of England (otherwise than by special licence)—

(a) except in the case of a marriage in pursuance of section 26(1)(dd) of this Act, in any place other than a church or other building in which banns may be published;

(b) without banns having been duly published, a common licence having been obtained, or certificates having been duly issued under Part III of this Act by a superintendent registrar to whom due notice of marriage has been given; or

(c) on the authority of a publication of banns which is void by virtue of subsection (3) of section three or subsection (2) of section twelve of this Act, on the authority of a common licence which is void by virtue of subsection (3) of section sixteen of this Act, or on the authority of certificates of a superintendent registrar which are void by virtue of subsection (2) of section thirty-three of this Act;

(d) in the case of a marriage on the authority of certificates of a superintendent registrar, in any place other than the church building or other place specified in the notices of marriage and certificates as the place where the marriage is to be solemnized;

(3) Case B is where any persons knowingly and wilfully consent to or acquiesce in the solemnization of a Church of England marriage between them by a person who is not in Holy Orders.

(4) Case C is where any persons of the same sex consent to or acquiesce in the solemnization of a Church of England marriage between them.

(5) In subsections (3) and (4) “Church of England marriage” means a marriage according to the rites of the Church of England.

49. Void marriages.

If any persons knowingly and wilfully intermarry under the provisions of this Part of this Act—

(a) without having given due notice of marriage to the superintendent registrar;

(b) without a certificate for marriage having been duly issued, in respect of each of the persons to be married, by the superintendent registrar to whom notice of marriage was given;

[...]

(d) on the authority of certificates which are void by virtue of subsection (2) of section thirty-three of this Act;

(e) in any place other than the church, chapel, registered building, office or other place specified in the notices of marriage and certificates of the superintendent registrar;

(ee) in the case of a marriage purporting to be in pursuance of section 26(1)(bb) of this Act, on any premises that at the time the marriage is solemnized are not approved premises;

(f) in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated; [...]

(g) in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superintendent registrar;

(gg) in the case of a marriage on approved premises, in the absence of the superintendent registrar of the registration district in which the premises are situated or in the absence of a registrar of that district; or

[...]

(h) in the case of a marriage to which section 45A of this Act applies, in the absence of any superintendent registrar or registrar whose presence at that marriage is required by that section;

the marriage shall be void.

Family Law Act 1986

46.— Grounds for recognition.

(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage—

(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or

(ii) was domiciled in that country; or

(iii) was a national of that country.

(2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained;

(b) at the relevant date—

(i) each party to the marriage was domiciled in that country; or

(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and

(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.

(3) In this section “the relevant date” means—

(a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of the commencement of the proceedings;

(b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained.

(4) Where in the case of an overseas annulment, the relevant date fell after the death of either party to the marriage, any reference in subsection (1) or (2) above to that date shall be construed in relation to that party as a reference to the date of death.

(5) For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.