For many, marriage is still primarily a religious ceremony. In Islam, couples sign a contract setting out the terms of the marriage and then mark their marriage with a Nikkah ceremony.
An Islamic marriage that takes place abroad, in a country where Islamic marriage is legally recognised, may be recognised in the UK provided the requirements for a legal marriage in that country were met and the parties had capacity to marry. However, Islamic marriages that take place in the UK are not legally binding under English and Welsh law, according to Attorney General v Akhter and Khan [2020] EWCA Civ 122. In order to be legally married, couples would need to have a separate civil ceremony.
Couples who have had an Islamic marriage will naturally think of themselves as husband and wife. They may either be unaware or overlook the fact that their marriage does not qualify under the law, leaving their legal position uncertain. This uncertainty may be compounded by the widespread misconception that cohabiting couples are legally recognised as common law spouses, when this is not currently the case.
However, while legal implications may be secondary to the religious significance of marriage, there are nevertheless important rights and obligations arising from marriage under the law:
- Spouses will automatically be able to administer and inherit from each other’s estate on death if their husband or wife died without leaving a Will
- The spousal tax exemption only applies to married couples
- On separation, married couples have a right to make a claim for a financial remedy so that the couple’s income and assets are divided fairly to meet both parties’ needs
- When a married couple have a child, the father automatically acquires parental rights, even if he does not sign the birth certificate
Couples who see themselves as husband and wife but are not legally married may assume that they benefit from these rights and therefore not take steps to safeguard their legal interests, such as creating a Will or signing a Cohabitation Agreement. This may leave people in financially precarious position, particularly if the relationship comes to an end. In this situation, speaking to a solicitor can help to provide clarity.
If you would like advice on any of the issues raised in this article, please contact Irrum Shah, Solicitor in our Family Law Department on 01295 204154, or by email at ishah@se-solicitors.co.uk
