Feelings of Injustice: a Need to Protect Families
Of the two cases presented in this section, only Dalia's proceeded to court, and at the time of interview her case had been heard and judgment handed down. A High Court judge of the family division declared her nikah marriage to be a non-marriage, as she had wilfully closed her eyes to the issues under the 1949 Act and was not therefore entitled to rely on her own ignorance.
In essence, she was being held to a far higher standard that the average person; it was held that she should have known the precise requirements of the marriage act at the time of her nikah marriage ceremony. This was in part because Dalia's siblings, it was heard, had experience of their own marriages and been able to engage with the law and get married, properly. The fact her nikah marriage took place on ‘approved premises' although was somewhat coincidental; she felt it should have been given more weight. From what Dalia told reported of the court proceedings, it was as if this fact was almost used against her because she did not specifically choose the venue because it held this status, instead she chose it because of the excellent catering.Dalia said during the High Court hearing the judge asked her what is meant to be a British Muslim. She said:
I am British, I was born in Britain and I was brought up in Britain, I was educated here, that makes me British. This is my home... my son is more British that me. I don't have a Pakistani passport but some of my family do.
Dalia felt that her hearing got off on the wrong foot and she was said to be defensive in giving evidence, especially when discussing the validity of the marriage. Dalia was keen to stress in court her belief that of the nikah marriage being legal this was not accepted. It was found that Dalia was not reasonably entitled to hold the view that her nikah marriage would be good in law.
Dalia explained that she felt many unnecessary elements were raised against her during the High Court case, matters like her higher education, her work and her alleged lack of knowledge regarding marriage law, and they were used to contradict her case. She reported during the interview that such matters were raised by the judge, as he felt she should have known better.
Dalia felt it was unfair because she was expected to know the law owing the actions of her siblings and how they arranged their marriages. There was a further sense of unfairness because Dalia felt conflicting elements were not raised against the husband in the same way. The fact that the husband had married twice under sharita law but was also British did not seem to matter. Following the breakup with Dalia, the husband re-married via a nikah again. Dalia said the judge was fully aware he had remarried and there seemed to be no repercussions to such behaviour or his choice of law.“As I had falsely believed my nikah was legal, it seemed that it was my fault. This did not seem fair.” The final blow came following this fact:
My [ex] in-laws have washed their hands of me and my son, their grandchild. He wants to know who is in his dad's family and asks ‘don't they love me?' There have been no birthday cards for him. The father doesn't have contact with his son and has not asked for it.
In conclusion Dalia felt let down by the justice system, from her perspective her husband was able to walk away from his marriage obligations, after bearing a child, without any adverse consequences or penalty. The judge commented that she was alone in thinking the nikah would result in a legally binding marriage but she clearly explained that this was the belief of her family and it was very important, especially to her parents that she be married in accordance with the law of the land, English law. The judge did not think the husband had misled her in the nikah marriage. Although the matter got to the High Court and benefited from being heard by an experienced family division judge, from the information Dalia presented during the course of the initial interview, her case would appear to have been poorly managed by the legal professionals, and she appeared to have received poor legal advice on the likely chances of success from the outset.
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