Islamic Marriage And Probate

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Islamic Marriage And Probate

The question of a person(s) legal rights in the UK arises when a couple gets married in an Islamic Marriage Ceremony and then one of the couple then passes away. 

We will examine, how probate is gained and what impact it has on thousands of couples here in the UK.

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    The Court of Appeal

    The Court of Appeal of England and Wales ruled, in February 2020 that a marriage performed in England under Islamic law, without following English law, is not valid. (The Court of Appeal for England and Wales is the highest court for England and Wales, second in authority to the Supreme Court of the United Kingdom).

    What is Islamic Marriage?

    In Islamic law, marriage is called Nikah (“نِكَاح‎”), an Arabic word used in the Quran to refer to the contract of marriage.  The contract can be in writing or can be verbal.  Islamic marriages require acceptance of the groom, the bride and the consent of the custodian, known as the wali, of the bride. The wali of the bride is normally a male relative of the bride, preferably her father. In non-Islamic countries, an Islamic marriage would normally be performed while following local civil law, such as obtaining a marriage license, and ensuring that the Imam is legally allowed to perform marriages in the jurisdiction.

    Is an Islamic Marriage Performed in England Valid Without Following English Law?

    No, an Islamic marriage performed in England without complying with civil legal formalities will be treated as non-existent and not valid.

    In H.M. Attorney General v. Akhter and Khan, the couple was married in an Islamic ceremony and intended to follow up with a civil marriage ceremony compliant with English law.  That civil ceremony did not take place.

    A Person’s Marital Status is Important For Them And For The State

    The status of marriage creates a variety of rights and obligations. It is that status alone, derived from a valid ceremony of marriage, which creates these specific rights and obligations and not any other form of relationship. It is, therefore, of considerable importance that when parties decide to marry in England and Wales that they, and the state, know whether what they have done creates a marriage which is recognised as legally valid. If they might not have done so, they risk being unable to participate in and benefit from the rights given to a married person.

    The answer to the question of whether a person is recognised by the state as being validly married should be capable of being easily ascertained. Certainty as to the existence of a marriage is in the interests of the parties to a ceremony and of the state. Indeed, it could be said that the main purpose of the regulatory framework (summarised below), since it was first established over 250 years ago, has been to make this easily ascertainable and, thereby, to provide certainty.

    The Court explained the requirements under English law to have a valid marriage, commenting:

    Although the overall system might be described as complex, we would suggest that it is not difficult for parties who want to be legally married to achieve that status.

    The appeal addressed whether the Islamic marriage was a legal valid marriage, and, if not, whether it was a “nonqualifying ceremony,” such that it would be considered legally non existent, or the ceremony created a void marriage.  The Court explained the difference:

    The most significant practical difference is that a non-marriage creates no separate legal rights, while a decree of nullity [from a void marriage] entitles a party to apply for financial remedy orders under the 1973 Act.

     

    The 1973 Act

    The 1973 Act provides for divorce-like remedies to persons in a void marriage that is subsequently nullified.

    There was no dispute that the Islamic ceremony did not create a valid marriage under English law.  The issue on appeal was whether the Islamic ceremony created a void marriage that could be nullified, with effect under the 1973 Act, or was essentially non existent under law.  If the ceremony were held to be legally irrelevant, no decree of nullity could be issued, and no financial remedies under the 1973 Act could be awarded.

    The Court held that there can be ceremonies – which the Court referred to as “nonqualifying ceremonies” – that do not create a marriage, or even a void marriage, under English law and so do not entitle a party to a decree of nullity or financial remedies.

    The Court then held that the December 1998 Nikah ceremony did not create even a void marriage because it was a non-qualifying ceremony.

    We have reached the clear conclusion that the December 1998 ceremony did not create a void marriage because it was a non-qualifying ceremony. The parties were not marrying “under the provisions” of Part II of the 1949 Act. The ceremony itself would have been permitted under s. 44 if it had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. It was not, therefore, a marriage within the scope of, in particular, the provisions of s. 26 of the 1949 Act. We would also add that the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony which complied with the requirements of the 1949 Act if they were
    to be validly married.

     

    What Does This All Mean For Probate?

    If you get married in a Nikah wedding ceremony you are not legally married in the UK unless you have also registered the marriage at a registry office.

    If the husband or wife dies without getting a will the survivor of the Nikah marriage will not be entitled to any of the estate of their partner. Before this happens talk to us  0808 188 9008 to get a will. 

    You can call free on 0808 188 9008 or you can call us on 0207 965 7568 for the London area (Local charges apply) or alternatively call 01380 718199  (Local charges apply).

    You can also fax us on 0844 884 8509. at 11p and up per minute from a fax machine.

    Correct as of 1-1-2021

    Please note: do not call the fax number from a mobile phone as you will be charged 50p per minute and you will not be able to speak to anyone.

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