For many of you, the ‘Register our Marriage’ campaign that family lawyer Aina Khan started in 2014 won't be unfamiliar. Despite every effort being made to move this campaign forward, it has taken until this year for the government to really get on board with this issue and provide funding to support the campaign.
The objective of the Register our Marriage Campaign is that all religious marriages are legally registered, to ensure legal protection is afforded to the couples concerned. The campaign has two main aims:
What are the current flaws?
English marriage law is currently found in the Marriage Act 1949. It states that a marriage will only be binding if:
The formalities can present issues in a number of faiths. Requirements 5 to 7 are particularly difficult in the context of Muslim weddings. Muslim weddings often take place at a family home, a mosque (the majority of which are not registered to perform marriages) or an unregistered banqueting suite. Further, a Muslim couple often consider the Nikah (their religious marriage) to the most important aspect of the wedding, with less emphasis on the need to formalise their marriage in accordance with the law.
The 2017 Channel 4 documentary 'The Truth about Muslim Marriage' highlighted this issue further. Two thirds of those interviewed as part of the programme worryingly had no idea that their marriages would not be considered legally binding. It may be fair to assume that the statistics across the wider population would present a similar result.
In addition, the Act provides that only three faiths must register their marriages:
Without a requirement that all marriages are registered, there is a risk that couples could be living their 'married lives' without having the rights that are afforded to legally married couples.
With that, it is imperative that the law is updated.
What are the consequences of not registering a marriage?
There are a number of potentially serious consequences, particularly in the context of a relationship that has broken down. For married couples, the starting point for dealing with financial matters upon divorce is the equal division of assets taking into account the needs of each party.
The approach to a breakdown of a relationship in the context of a cohabiting couple is very different. Despite the common misconception that 'common law marriage' exists, any financial claims after separation will be based on civil law principles. As a result, a Muslim couple who had a religious ceremony (which isn’t legally binding) will not be protected in the same way as married couples. They will have no option but to make an application under Trusts of Land and Appointment of Trustees Act 1996 (in the context of the division of assets) or the Children Act 1989 (in the context of provision for the children).
Unfortunately, this is more likely to negatively impact Muslim women. Often being primarily responsible for the children and therefore more likely to be financially dependent, they will not be arguing from the same starting point as a woman that is legally married.
So what now?
There are so many reasons (many of which extend beyond the scope of this brief article) why a change in the law is needed as soon as possible. Changes to the law will not happen overnight but we need to remain optimistic that things are moving in the right direction.
In the meantime, it is important that we continue to educate those around us about the laws governing marriage and the potential misfortunes, in the event that the legal formalities are not followed.