Marriage

The majority of the participants had a civil registered marriage. How­ever, one of the main considerations to emerge from the findings was the importance of nikah in validating their marriage as explained by the participants.

The civil marriage to me is just a paper, so for me, it’s all about the nikah.

(Henna)

I thought it was strange that he would not give me the Islamic di­vorce because I believed in Islamic marriage more than the court marriage [i.e. civil marriage].

(Fahima)

Nikah literally means ‘to tie up together’ and in Muslim family law refers to the marriage contract, providing a social and legal relation­ship for founding a family.²¹ Nikah is seen as a moral imperative and binding contract,²² one that allows Muslim couple to cohabit and not violate community norms.²³ The imams and solicitors in this study agreed that nikah was a necessity for Muslims.

Obviously, any Muslim has to get an Islamic marriage, it’s a norm. I mean a Muslim cannot be married until they do the Islamic nikah.

(Imam #1)

Clients have a religious need for a nikah ceremony. The family accept the nikah.

(Solicitor #1)

Therefore, any consideration for a civil marriage was a secondary is­sue as it did not constitute the actual marriage. The Shariah Council judges explained why a civil marriage was not sufficient from a reli­gious perspective, which related to the conditions of the Muslim mar­riage contract and the perception of civil marriage among the Muslim community.

There are four conditions of an Islamic marriage: 1) offer and acceptance, 2) two witnesses, 3) wali amτ (guardian) and 4) mahτ (dower). In a civil registration, the first two points are present and the last two are absent.

(SC Judge #3)

Civil registration is for legal convenience i.e. benefits and taxes. For Muslims, the civil registry is not getting married but a pre­party to the nikah, it carries no weight.

(SC Judge #1)

Empirical studies from other diasporic Muslim communities world­wide show similar findings whereby the nikah is sufficient for the Muslim community seen as the “real” marriage²⁴; Akhtar found Brit­ish Muslims do not register their marriages as there are no incentives for a civil ceremony, which added no further value to the status of be­ing married in their perceptions.²⁵ Nevertheless, the Shariah Council still required a copy of the civil marriage certificate before they could provide the original nikah-nama (Muslim marriage contract); until then, they only provide a photocopy. Whereas the Shariah Council required non-EU nationals to have a civil marriage first even before applying for a nikah ceremony. The Shariah Council explained why they ask for proof of a civil marriage.

We ask for a copy of the civil registration, to avoid fake marriages and temporary marriages, we insist couples show real commit­ment before the original nikah certificate is issued.

(SC Judge #1) The status of civil marriage is important in nikah applications with the Shariah Council, though they do not consider a civil ceremony as an Islamic marriage. Furthermore, by insisting on a civil registra­tion certificate, the Shariah Council was able to avoid conducting polygamous marriages for legal and moral reasons, and one imam expressed his personal preference to avoid conducting polygamous marriages.

We avoid conducting polygamous marriages, primarily because it conflicts with English law, and because it can be unjust in the way it is practised among British Muslims, contrary to the way encouraged in the Quran, so they abuse it, and the wives are left without legal redress.

(SC Judge #1)

To date I have not conducted a polygamous marriage, but if asked I would avoid performing the nikah, as many people who practice polygamy do so without justice.

(Imam #1)

Overall the participants did not have any aversion to civil marriage, many participants had transnational marriages and needed a legally valid marriage to make immigration applications for their spouses. Participants with nikah-only marriage explained their reasons: for some, it was a personal choice, others expected a civil registration after the nikah but it never occurred, whilst some did not see the need to register as their spouses were already British nationals.

I just had an Islamic marriage. Not bothered with a civil [regis­try], because it’s my second marriage. It’s irrelevant.

(Rushna)

I wanted a registry. He [the husband] kept saying it’s not neces­sary, but I know that in this country it is necessary. He didn’t want to do it.

(Jahanara)

He [new husband] was born and brought up in the UK. He was a divorcee and has a child from the previous marriage. He loves my children like his own.

(Parvin)

The professionals expressed concerns regarding unregistered mar­riages among their clients, especially the lack of legal protections, rights and access to family courts during a marital breakdown.

Non-registration is a problem. They have no legal rights.

(Imam #2)

In nikah-only marriages, the women are cohabitees or girlfriends. They have to prove their contribution to the marriage [if they break up]. They are throwing away their opportunity to justice.

(Solicitor #2)

Also, the Shariah Council raised concerns regarding unregistered marriage, as observed during a nikah ceremony conducted on their premises.

The judge asked the couple if they are going to civil register the marriage. The man looked bewildered and glanced towards his new bride... The man then said to the judge ‘probably not’. The judge said ‘why not?’ He reminded them that they could not ac­cess the civil courts in the future if they have marital disputes. The couple did not discuss this any further and left the room happily married.

(PO7)

Whilst civil marriage may not constitute an Islamic marriage among British Muslims, to have a civil registered marriage and subsequently any civil divorce could be relevant when pursuing an Islamic divorce as discussed in the next section.