Court Of Appeal Ruling Will Force Women To Discriminatory Sharia Courts

From Maryam Namazie ➤ Court of Appeal rules that women who are unable to register their marriage in accordance with the law are not entitled to financial remedies on the break-up of their marriage.

On the 13th and 14th November 2019, Southall Black Sisters (SBS) intervened in an important case (Akhter v Khan) which has far-reaching implications for minority women’s marital rights. As part of the One Law for All campaign, we sought to inform the Court of Appeal that many minority women, especially Muslim women, are deceived or coerced by abusive husbands into only having a religious marriage, which deprives them of their financial rights when the marriage breaks down.

The Court of Appeal handed down its written judgment today, concluding that the marriage system should not be changed because “it would gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community“.

We are concerned that this conception of the regulation of marriage in the “modern community” does not recognise the experiences of many minority women who are subject to abuse and coercion and who often have little or no control over the marriage process. The Court found that “it is not difficult for parties who want to be legally married to achieve that status”. But this disregards the accounts of many minority women, who have great difficulty in obtaining that status in the context of domestic abuse, patriarchal family dynamics and considerable power imbalances.

The judgment says that the state does not have a human right obligation to recognise religious marriage. Whilst we agree, this case provided an opportunity for the Court to address the cultural and religious barriers that prevent minority women from opting into the formal marriage system and to provide access to legal remedies where there is such manifest unfairness in the process of marriage.

This case has profoundly discriminatory consequences for minority women, especially Muslim women. Christian women in a similar situation are able to have their marriages declared ‘void’, and thus have access to financial remedies from the courts, but women who have married in other religious systems, may not.

Background

On 31 July 2018, Mr Justice Williams, a family court judge, decided that Ms Nasreen Akhter was entitled to a decree of nullity of marriage, following the break-up of her 18 year old marriage. She had had a nikkah ceremony resulting in a Muslim marriage contract between herself and her husband, Mr Mohammed Khan. The couple were widely recognised within their community as married in Britain, and recognised as lawfully married in the UAE (where they lived from 2005 to 2011) for tax and other purposes. Although Ms Akhter insisted on a civil marriage and believed one would take place, it never happened because Ms Akhter’s husband refused to fulfil his promise to have a civil marriage. When the marriage broke down, (it is suggested that he wanted to take another wife) he said that he owed his wife nothing because their relationship constituted a ‘non-marriage’.

In court, Mr Justice Williams concluded that in the interests of fairness and justice, the marriage should be recognised as ‘void’. He suggested that the law should “take a holistic view of the marriage process, rather than focus on a single ceremony” and asked “whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them”. He granted Ms Akhter a decree of nullity which would allow her to claim financial remedies, such as maintenance, to which she may be entitled to following the break- up of her marriage.

However, the Attorney-General on behalf of the government, intervened in this case and argued that Mr Justice Williams was wrong to apply human rights arguments to this case and wrong to recognise the marriage as ‘void’. The Attorney General’s appeal was successful.

The barrister instructed on behalf of SBS, Michael Horton of Coram Chambers, argued that the technical concept of ‘non-marriage’ should be abandoned by the courts, and that the way the legal system affords different legal recognition to both valid and invalid marriages based on the religion of the couples amounts to unlawful discrimination, contrary to Article 14 of the European Convention on Human Rights. The Court of Appeal rejected the first argument, confirming that there are marriage ceremonies, which they term ‘non-qualifying ceremonies’ which not only do not create a legally recognised marriage, but which also do not allow the courts to grant a decree declaring the marriage to be void, thus denying the couple access to the court’s powers to make orders dealing with the financial consequences of the relationship breakdown. However, the Court of Appeal declined to deal with the human rights arguments put forward by SBS, which may need to be argued in other proceedings.

By rejecting Mr Justice William’s decision, the Court of Appeal has gone backwards; in the “interests of the state” it has endorsed a conservative, discriminatory and fossilised system of marriage registration at the expense of the human rights of minority women to access equality and justice. It leaves minority women exposed to deception by abusive husbands who want to avoid their rights and obligations in marriage and after a break-up.

A domestic violence survivor, who remained in a religious-only marriage for a decade until finally for immigration purposes her husband agreed to a civil marriage, is available for interview. She says of her experiences:

Women don’t have a say in the matter of civil marriages. If things were in women’s hands, they would have had the civil marriages in the first place. Why would they wait? When women get out of the divorce, they have nothing to stand on. Over the period I was married to him, I had nothing in my name – not even the car. He would say to me, even your handbag is mine.

Pragna Patel of SBS says:

Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system. The Court of Appeal referred to the Law Commission’s review of the law governing the regulation of marriage but we believe this to be a neat way to avoid having to grapple with the unsatisfactory nature of the current marriage system or its discriminatory nature. What we are seeing is the outsourcing of justice on family matters to unaccountable and fundamentalist-inspired community based systems of religious arbitration. This is not about recognising religious marriages; it is about the state guaranteeing equality to all before the law.

Maryam Namazie of One Law for All says:

The court of appeal’s decision to deny Muslim women financial remedies by refusing to deem a Sharia marriage a void marriage is a travesty of justice. The court, like the Government, is perfectly happy to relegate minority women to kangaroo courts and faith-based parallel legal systems in order to appease fundamentalists and manage minority communities at the expense of women’s rights. Today’s judgment will only further discrimination against minority women.

Gita Sahgal of One Law for All says:

The One Law for All campaign’s research has shown that the collapse of civil marriages in Muslim communities has been used to spread the influence of sharia ‘courts’. Women are trapped in a legal limbo unable to divorce, and unable to remarry. We believe all marriages must be registered; but we do not support this judgment. The government, which has failed to act against sharia councils, is now threatening to send women back to them, by closing off this remedy.

Maryam Namazie is an activist with the Council of Ex-Muslims and other secularist groups.

Follow Maryam Namazie on Twitter @MaryamNamazie