Nikah, Muslim marriage & inheritance dispute claims
What is nikah?
Nikah is a ‘marriage contract’ in Islamic (Sharia) law. Nikah is a sacred, but also a social, contract between a man and a woman. Both parties must mutually agree to enter into the contact, and are often able to define their own terms and conditions. As part of the nikah ceremony, the groom must give a marriage gift (Mahr) to the bride as a token of his commitment and responsibility. It may be given before, after, or on the day of nikah. This may be paid in cash, or given as property or as objects, however it is recommended that it is modest.
A nikah is sometimes officiated by a Muslim judge (Qadi), but can also be officiated by any trustworthy practicing Muslim. Nikah can be conducted anywhere, including mosques, formal wedding venues or at home. After the ceremony, a copy of the nikah is then filed with the mosque for their records. Nikah under the law of England and Wales If a couple make nikah in a country that has Muslim family law legislation (such as Saudi Arabia, Pakistan, Malaysia, UAE etc.), then they are legally wed in that country. This can then be registered as a legal marriage in the UK upon request.
However, if a couple make nikah in England and Wales, it is regarded in law as a purely religious ceremony and it is not accepted as a legal marriage. This is to ensure that there is only one valid system in respect of marriage and divorce throughout the England and Wales legal jurisdiction. A few mosques across England and Wales are registered under the Marriage Act 1984 to carry out the solemnisation of marriage, but this does not automatically legalise the nikah.
As nikah is not recognised as a legal marriage under the law of England and Wales unless it is accompanied by a civil marriage, parties who only make nikah do not acquire any enforceable marital rights under English law. The situation that arises is anomalous in that while a nikah entered into overseas can be registered as a legal marriage on these shores, a nikah entered into in Britain itself can’t be. This may not necessarily be a problem for many couples who will be happy knowing that, under Islamic law, they are husband and wife. However, issues may arise when something goes wrong, either due to the conduct of the parties, or due to unfortunate circumstances, such as bereavement.
Statistics for nikah ceremonies in Britain
There are very few reliable statistics regarding the number of nikah ceremonies that are conducted in England and Wales, and how many couples have also undergone a civil marriage ceremony. However, Aurat, a women’s charity based in the Midlands, has conducted a study and report on 50 Muslim women. Out of the 50 women interviewed, 46 identified themselves as being married, yet only 5 were legally married under the law of England and Wales. Out of the 41 who were not legally married, only 18 were aware that they experienced fewer legal rights than those who were. Significantly, 31 of the 46 said that their husband was married to other women as well, and 22 of these women said that their husband lives with the other wife/wives at least some of the time, if not all the time.
Nikah and the Inheritance Act
In terms of the law on inheritance, the Inheritance (Provision for Family and Dependants) Act 1975 allows specific categories of people to make a claim on the deceased’s estate if the deceased’s will, or the rules of intestacy, fail to make reasonable financial provision for the applicant.
Section 1(1)(a) of the Inheritance Act allows a wife, husband or civil partner of the deceased to claim, as long as they were legally married, and that the marriage was still continuing at the death of the deceased. If a couple have only made nikah in the UK and have not been formally married, they may be unable to make an inheritance claim under this section of the Inheritance Act.
If the couple were not legally married, but were nevertheless living as husband and wife in a cohabiting relationship, it may be possible to claim under section 1(1)(ba) of the Inheritance Act. However they must have been living in the same household as the deceased (as husband or wife) for 2 years immediately prior to the death of the deceased, and there must have been no break in the cohabitation.
According to the findings in the Aurat report, there is a significant number of Muslim women who have made nikah, but are neither married nor cohabiting. This could be highly problematic should they wish to seek protection from English inheritance laws which are designed to ensure fairness and guarantee reasonable financial provision following the death of a loved one.
How we can help with nikah, Muslim marriage & inheritance dispute claims
For FREE initial guidance on inheritance disputes involving Muslim marriage and issues relating to nikah call our legal helpline on 0808 139 1599 or email us at [email protected]