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Akhter v Khan: Islamic marriages and will disputes

Date:30 AUG 2018
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Senior Associate

A recent family law case has highlighted a hole in the legal protection of Islamic couples whose ‘marriage’ may be considered a void marriage in English law, or may not be a marriage at all.

The case of Akhter v Khan [2018] EWFC 54 in the family court found that an Islamic Nikah marriage ceremony performed in England did not comply with the requirements to render it a valid marriage in English law. In this case, rather than finding that there was no marriage at all however, the judge found that in these very specific circumstances, there was a ‘void marriage’, which meant that the wife was entitled to an annulment, and therefore the legal rights that came with that. 

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This case has wide-reaching implications for Islamic couples during their lifetimes, from tax implications, to pension entitlement, to the right to a divorce or annulment, and financial orders when it comes to the division of assets. The court looked closely at the validity of these types of marriages, and whilst in this case that there was a void marriage, made it clear that in many cases, it could be held that there was no legal marriage at all, whether void or not.

Solicitors have warned that the implications of this go beyond the couple’s lifetime. Whilst a void marriage may allow some rights to the couple during their lifetime, the effect when one of them dies is far more serious.

It is very common in the Islamic community to simply have the Nikah ceremony, rather than also conducting an English marriage ceremony. Couples are often under the misconception that the Nikah is a valid legally binding ceremony, and that afterwards, they will have the same rights as any married couple in English law, both during their lifetime, and upon death.  However, this is not the case and can leave thousands of individuals unprotected if their partner dies, and doesn’t leave a will.

Under these circumstances, the rules of intestacy apply, which only provide for a spouse, or blood relatives to inherit a person’s estate. Where assets are not jointly owned therefore, there is a risk that they could pass to the couple’s children, or other relatives, and the partner could be left with nothing despite years of marriage.

The surviving partner can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”). This Act allows certain people to bring a claim for reasonable financial provision from the deceased’s estate.

Whether the marriage was therefore void, or not a marriage at all, becomes a very important question. If it was merely void, the surviving partner can bring a claim under the Act as a spouse. This is generally a much stronger claim as the award is usually akin to what the person would have been awarded on divorce. It still requires a claim to be brought however, as there is no automatic entitlement to the estate.

However, if the marriage is not a void marriage and is found to have not been a marriage at all, the surviving partner can still bring a claim under the Act, but this time as a cohabitee.  They have to show that they were living as man and wife for two years immediately before their partner’s death, and their claim is stronger if they can also show that they were financially dependent upon their late partner. However, claims under the Act as a cohabitee are generally not as strong as claims as a spouse.

Many people in the Islamic community may be unaware of their rights after their spouse passes away and may be under the impression that if there was no English legal ceremony, that there is nothing that they can do. This is also not limited to the Islamic community, as there have been cases in the past involving other religions, where a ceremony was performed, but failed to comply with the requirements of English law. It is important that anyone affected gets specialist legal advice very quickly after their partner passes away, as there is a short timescale to bring claims under the Act.