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Criminalising imams will not solve the problem of unregistered marriages

Date:15 JAN 2019
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In this post Russell Sandberg, Professor of Law at Cardiff University, questions the current proposal for celebrants to face criminal penalties if they fail to ensure the marriage is also civilly registered. He argues that this will not cure concerns about unregistered religious marriages but rather underlines the need for comprehensive reform.

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Recent years have seen significant changes to the law facilitating and regulating personal relationships with the recognition of civil partnerships and same sex marriage. At the moment a number of further reforms are at various stages in their development. Cohabitation law reform has been long debated but is currently on hiatus and there is likely to be even less impetus to revisit the issue following the planned introduction of opposite sex civil partnerships. The Law Commission’s work on formalities has belatedly been given the go ahead with the announcement at the Budget that reform of wedding law in England and Wales will now be looked at. Baroness Deech’s Private Members Bill dealing with financial provision on divorce and prenuptial agreements has received its third reading in the House of Lords.  And the Owens case has led to a consultation on the much-needed introduction of truly no fault divorce.

During the last decade, there have also been numerous calls to legislate to deal with problems identified with religious tribunals. A 2008 lecture by the then Archbishop of Canterbury Rowan Williams led to a great deal of theoretical and some empirical research.  We now know a great deal about what the most mainstream Sharia tribunals want to tell us about themselves. We know far less about the existence of (let alone the practices of) the number of informal mechanisms within faith communities where decisions on disputes are made and enforced.  There are concerns about discrimination especially on grounds of sex. There is also the specific issue that a number of adherents do not have their religious marriages registered under State law, meaning that on relationship breakdown they lack the rights that they would otherwise have had and their only port of call is religious authorities rather than legal ones.

As I have previously argued, it is noticeable that this debate about religious tribunals and their jurisdiction in relation to religious marriage has largely taken place separate to the discussion about reform to family law generally. This is odd, since general reforms to the law on formalities and / or cohabitation rights would go some way to mitigate concerns about unregistered religious marriages. Indeed, although the social context is often not the same, those who are in unregistered religious marriages are legally treated in the same way as cohabiting couples. They do not have the rights that come with registered marriages. Moreover, in both cases incorrect assumptions are often made about the existence of legal protection. The lack of awareness often attributed to those who are in unregistered marriages is mirrored by the prevalence of the myth of common law marriage amongst cohabitants.

Calls for reform to the general law on intimate personal relationships and calls for reform on unregistered religious marriage are both animated by the same concerns. First, there is the need to ensure that the law is fit for purpose reflecting the way in which relationships form and operate in the twenty-first century. Second, there is the need to ensure that those who are vulnerable are protected.

The often separate calls for reform also share a common context:  the neo-liberal roll-back of the State.  An emphasis upon personal autonomy has justified reluctance and a reduction in the role of the State in dealing with what is now seen as private matters.  Moreover, there seems to be no appetite on the part of Governments of both political colours for general reform of the law in this area. Instead, each issue is perceived as a discrete problem needing ad hoc and often kneejerk reform. And in relation to the unregistered marriage issue the problem is linked implicitly, if not explicitly, to Islam in particular.  

This tendency to see each issue as a discrete problem not only creates an expectation that there will be a solution but also crucially obscures the need for wholesale reform. Examining the merits of specific changes means that a considered examination of different options is not undertaken. This is especially to be regretted given that comparative insights can gleaned from the different jurisdictions within the British Isles and, of course, further afield. The big questions are not asked in the race for makeshift solutions. 

As I have noted previously, there are numerous examples of this. The welcome commitment to introduce opposite sex civil partnerships runs the risk of avoiding grappling with the thornier but more pressing issue of cohabitation rights. And as my colleague Dr Sharon Thompson has convincingly argued here and here, the Divorce (Financial Provision) Bill risks increasing rather than reducing inequalities by removing the judicial flexibility that is able to recognise the caring contributions made by the non-moneyed spouse.

However, current proposals on the unregistered marriage issue provide a neat illustration of the dangers of racing to find ad hoc reform solutions to discrete problems.

A ‘key finding’ of the Independent Review into the Application of Sharia Law in England and Wales was that ‘a significant number of Muslim couples fail to register their religious marriages’ meaning that they have ‘no option of obtaining a civil divorce’ and importantly cannot avail of the financial remedies available under the law (p.5). The Review called for education, regulation of religious tribunals and legislation. However, most of the attention to date has been on this last suggestion.

The Review recommended amendments to the Marriage Act 1949 and the Matrimonial Causes Act 1973 ‘to ensure that civil marriages are conducted before or at the same time as the Islamic marriage ceremony’ (p.5).  This is a laudable aim: it would mean that all marriages are registered. However, the means by which this would be achieved is questionable. The Review recommended amendments to the Marriage Act 1949 so that the celebrant of any marriage, including Islamic marriages, would face penalties should they fail to ensure the marriage is also civilly registered’ (p.5).

This suggestion ignores the reasons why religious marriages may not be registered. The issue is not that Imams are deliberately failing to or colluding not to register marriages. The issue is that some couples are deciding either deliberately or accidentally to have a religious marriage that does not comply with the law on marriage registration. This might be because the law is unduly complex or restrictive. It might also be because of a choice not to have a civil marriage on the part of one or both parties: observant Muslims often have a nikah just so that they can be together without being chaperoned.  It might result from unawareness that the religious marriage is not registered. In any of these situations, using the criminal law against a celebrant (assuming a celebrant can be identified) does not deal with the issue.

Indeed, criminalising Imams would not extend the rights or protection afforded to those within unregistered marriages. It does little, if anything, to increase the level of awareness.  What this criminal offence would do is cause division. Although it would be generally worded, this would be seen as a very extreme measure directed at Muslims.

Creating a criminal offence would be very heavy-handed and is a solution to a completely different problem to that identified in the Review and the wider literature. If there were evidence that celebrants were deliberately not registering marriages then this may be the solution. Criminalising religious marriages would only make sense if there was a fear of rogue celebrants forcing people to undergo religious ceremonies and falsely stating that such ceremonies resulted in legal marriages. However, there is no evidence of this (and if there were then this could presumably be caught by the general provisions of the Fraud Act 2006).

The Marriage Act 1949 (Amendment) Bill provides an illustration of what a criminal offence could look like. This Private Members Bill introduced by Baroness Cox includes a clause which would amend the 1949 Act to state that:

‘Any person who knowingly and wilfully purports to solemnize a marriage which may not be lawfully registered pursuant to Parts I to IV of this Act shall be guilty of felony and shall be liable to imprisonment for a term not exceeding five years’.

This clause would be ineffective.  The mischief that this provision would solve is the situation where people are deliberately claiming to conduct legal marriages where these marriages are not lawfully registered. There is no suggestion that this is the issue that needs to be solved.  The issue is rather that ceremonies are taking place that are outside the scope of the Act entirely; not that ceremonies are claiming or giving the impression that they are in the scope of the Act.  It is also debateable whether further legislation would be needed if that was the problem. Section 75 of the Marriage Act 1949 already provides a number of offences where marriages are solemnised but the Act is not complied with and section 76 provides offences relating to the registration of marriages. 

The Cox Bill and the recommendation by the Review, which is now being looked at by the Ministry of Justice, miss the point. The concern with unregistered religious marriages is the lack of rights and the lack of awareness of this.  The Review is correct to emphasize the importance of education on remedying this. However, the proposal of a criminal offence will do little, if anything, to help and is likely to hinder.

If legal change is required then it needs to be wholesale rather than piecemeal. General reform to the law on intimate personal relationships through revision of the law on formalities or cohabitation rights would mitigate the issues raised by unregistered religious marriages.

Moreover, the response to unregistered religious marriages reflects a wider tendency in relation to the law on intimate personal relationships towards identifying particular problems that can be solved rather than looking at the legal framework as a whole.  This is proving problematic not only in relation to unregistered religious marriages. Short-term sticking plasters only highlight the cracks that not only exist but are getting larger. Rather than enacting ineffective and divisive criminal offences, there is a need for comprehensive reform of the law.

I am grateful to Dr Sharon Thompson and Frank Cranmer for their comments on an earlier version of this post. All interpretations, opinions and errors remain my own.

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