Islamic Marriage in England and Wales

One marriage, Two systems: Islamic and Legal Recognition Explained

In England and Wales, a religious marriage is legally recognised only if it meets the following requirements:

1. The ceremony must be in public and in a registered building or place of worship;
2. You must ‘give notice’ at your local register office at least 29 days before your ceremony;
3. An authorised person or Registrar must attend the ceremony and sign the marriage document;
4. You must have at least two witnesses.

Anglican, Jewish, and Quaker wedding ceremonies in England and Wales, carried out in accordance with the rules of each religion, will meet the above requirements and are therefore legally binding.

Muslim, Sikh and Hindu religious ceremonies in England and Wales do not automatically satisfy the legal requirements. A separate civil ceremony is therefore required.

Only if your religious marriage meets the required legal formalities, will you be legally married in England and Wales.

Islamic marriage abroad

If a marriage has taken placed abroad, the presumption is that it will meet the requirements of a valid marriage, so long as it is carried out according to the law of the country in which the marriage took place and would be a legally recognised marriage in that country. An example of this is if someone has had an Islamic marriage (‘Nikah’) conducted within England and Wales, but not a civil ceremony, then they would not be considered spouses. However, if they were married in a country where Islamic law, also known as the ‘Shariah Law’, is followed then they are husband and wife. For a Nikah to be valid, it must follow the essential conditions including:

1. Mutual consent;
2. A marriage guardian (‘Wali’);
3. Two witnesses and;
4. The ‘Mahr’ (bridal gift).

Therefore, a traditional Nikah is recognised as a legally binding marriage in England and Wales, if the ceremony takes place in a country governed by Sharia Law and these conditions are met. If that is not the case, then the Nikah must be followed by a civil ceremony conducted by a Registrar in order to be legally valid.

Islamic Marriage: Divorce & Financial Settlement

To be eligible to get legally divorced or apply for a financial settlement, in England and Wales, you must be legally married. As explained above, if you have only had a Nikah ceremony in England and Wales, then you will not be legally married.

In some circumstances, one party, usually the wife, has no idea that the Nikah ceremony does not constitute a legal marriage. There is quite a lot of caselaw about this. Some judges have tried to bend the law to accommodate the putative ‘wives’ in these cases, but have been successfully appealed. If you have moved into your partner’s home, given up work, or have very little by way of income, savings or investments of your own, the relationship breaking down can leave one party in financial limbo, unable to apply for a simple financial order like a legally married party can.

So what options are available to you?

1. You can apply for child maintenance through the Child Maintenance Service,
2. If you have contributed financially to the family home, you may be able to make an application in the Trust of Land and Appointment of Trustees Act 1996
3. You may be able to make a claim under Schedule 1 of the Children Act

None of the above options are simple and straightforward, compared to a usual claim for financial remedy under the Matrimonial Causes Act 1973.

Islamic Marriage: Inheritance Tax – spouse exemption

For the purpose of Inheritance Tax,  the term “spouse” applies only to the parties of a legal marriage. As stated above, if the marriage has complied with the law and the legal requirements within the country the marriage took place, then for inheritance tax purposes they are deemed to be spouses and may transfer any unused nil rate band, and their estates will generally pass to each other free of Inheritance tax.

If you are not legally married, you do not receive the benefit of the spouse inheritance tax exemption. This means that any assets you leave to your partner may be subject to inheritance tax. Unlike married couples, unmarried couples are unable to transfer any unused inheritance tax allowances to each other.

What happens if your ‘spouse’ does not provide for you under their Will?

If you are legally married, the main remedy is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. As a surviving spouse you can request that the Court makes an order for reasonable financial provision for you from the Estate of the deceased. The Court will consider factors such as the size of the estate, your financial needs, the length of their marriage, contributions that you have made to the family etc…therefore a surviving spouse generally is in a stronger position to make a claim.

However if you are not married under the law then you do not automatically inherit anything just because you were long term partners. There is no such thing as a common law spouse in England and Wales.

It may be possible to bring a claim under the Inheritance (Provision for Family and Dependants ) Act 1975 if you were financially dependant on your partner and they have not made “reasonable” provision for you under their Will. The standard of provision required by the Court is much less than it would be for a spouse, as claimants (with the exception of spouses) are only permitted to claim such amounts as would be needed for their maintenance, whereas spouses can simply claim a reasonable sum in the circumstances, whether or not this is required for their maintenance.

If you have contributed towards the purchase of a property, then it may also be possible to bring a claim against your partner’s estate for a share of that property under the Trusts of Land and Appointment of Trustees Act 1996.

Grounds to be able to bring a claim

You could bring a claim if you were living together as though married for at least two years immediately before their death and they were your financial provider. The Court can also look at various factors such as whether the deceased was making a substantial financial contribution towards your reasonable living expenses immediately before they died, regardless of whether or not you were living together at the time of their death, or the length of time of any relationship (although this would be considered by the Court). The court can also evaluate how often this maintenance was paid. Whether it was an occasional gift or just a one-off payment made. After assessing these factors, if the Court finds that you do qualify, then reasonable financial provisions can be made from the deceased’s estate to cover those needs.

What happens if you die intestate?

‘Intestate’ means without a Will. If a deceased individual was legally married in England and Wales, or through a recognised foreign marriage and died intestate, then their surviving spouse has significant rights under the intestacy rules within England and Wales. However, if the marriage is not recognised under English law, then the surviving individual may be treated as a non-spouse and may not benefit under the intestacy provisions. Therefore, it is important that you are aware of your rights within a marriage and whether that marriage is lawfully recognised.

Why is being legally married is important when creating a Will?

If you are a couple enquiring about creating a Will, but are not married, your lawyer is likely to recommend that you get married. This is because being married can mitigate Inheritance Tax, as assets passing between spouses are exempt from inheritance tax. Marriage also revokes any earlier Wills. A provision can be added to your Will, to confirm that it is being made in contemplation of marriage. Therefore, so not to be revoked by that marriage. However, it is still recommended that if you are planning to get married, you should do this before you create your Will.

Other considerations:

Are you are planning to get married in England and Wales? You may want to consider whether you need a pre-nuptial agreement.

Summary

The key point to take away today is to;

1) Ensure that you are aware of your legal marriage status

2) Understand your rights and how this can affect your future

How can we help?

Contact us today at 0333 344 6302 to arrange an initial meeting. Offices in Henley-On-Thames, Beaconsfield, Marlow and London.

Blanchards Family Law is a highly experienced family law firm. We are recognised for our leading family law services in the Legal 500 and the Spears 500.

This blog was co-written by Katie Finnigan, (Solicitor) and Bisma Ahmed (Paralegal – Private Client) at Blanchards Family Law.