The recognition in British Law of the ‘Nikah’

The recognition in British Law of the ‘Nikah’

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by Naz Shah, Member of Parliament for Bradford West

Late last month saw members of murdered Samia Shahid’s family lodge a complaint with the Pakistani authorities about the validity of her “divorce” and her second marriage.

Samia Shahid
Samia Shahid

Since this happened, I’ve had many conversations with women’s rights groups and experts here in the UK, in Pakistan and also some prominent Islamic Scholars.

In this article, I am not going to explore the complaint or make any comment as it wouldn’t be fair, given there is a criminal trial due in Pakistan for both Samia Shahid’s first husband and father who are in custody.

However, what it has raised is the conversation about Islamic marriages, here and abroad, and Islamic divorce.

Parallel to this, is the fact that currently the government is undertaking a review of “Sharia Councils” and the Home Affairs Select Committee, of which I am also a member, is engaged in looking into the role of “Sharia Councils”.

So this is a dialogue I’m very much engaged with and the more I discuss it, the more people highlight the concerns about the lack of awareness in our communities, particularly amongst women of their rights, or in some cases, lack of, when it comes to Islamic marriages, which themselves can afford different legal rights depending upon where the marriage took place.

Only this afternoon [as I write this article] Bradford based Lawyer Sarah Khan – Bashir MBE, raised these very concerns with me having come across these issues regularly in her legal practice, Shires Solicitors. One of Sarah’s specialist areas of practice is “Sharia Divorce”. Our shared concerns prompted us both to write about the issue to raise awareness and sign post women to support.

So here’s the first part of two articles. The first is my attempt to highlight some of the most basics in this area and raise awareness of the issue. Part two, which will cover some of the more complex legal issues, written by Sarah will be in the next issue of Urban Echo.

I’m going to discuss a couple of main issues I’ve come across: The recognition in British Law of the Nikah and The Marriage Contract, the “Nikah.”

Recognition of the Nikah

Women are still not aware that even by having a Nikah in a registered building by someone who is authorised to carry out a civil ceremony does not itself make the marriage legally recognised in this country. A Nikah is only recognised in this country if it took place in another country, for example in Pakistan, in accordance to the law/authority of that country.

Alternatively, if it does take place in a registered building by someone who is authorised to do so, the formality of registering it as a civil marriage must be followed through and a certificate issued via the registrar’s office for it to be legally recognised.

Without a civil marriage, a Nikah only marriage does not give a woman “Common Law Wife” rights, this is a commonly believed myth as it doesn’t exist. The only rights are as a co-habitant and they are limited. ” As a “Co-habiting” couple, and where children exist, there may be some legal rights of occupying a property but these are very limited and co-habiting does not give legal rights like a civil marriage would.

The Marriage Contract

Not enough is known about the “contract”. Women are not informed that they don’t have to use the standard Nikah contracts used by mosques which are their own versions. Women can stipulate conditions including, for example, that the husband cannot take a second wife whilst married to her, or that she could also instigate divorce without having to go through any Sharia Council. This doesn’t take away the right of the husband to instigate a divorce but does give the woman more choice and control. A local imam explained to me that when he’d recently married a couple, the Marriage Contract included nearly two pages of conditions, which as he put it, were a bit like a “pre-nupt”, however, it must be noted that “pre- nuptial” agreements have no legal basis in England and Wales.

The other empowering element is that should, in the unfortunate circumstances, the marriage breakdown, the wife could potentially pursue her rights under contract law.

And Finally Divorce…

A woman has every right to ask for a divorce, yet some women are still led to believe otherwise.

For further information I would encourage you to visit The Muslim Women’s Network website as MNUK recently published a comprehensive report titled “Information and Guidance on Muslim Marriage and Divorce in Britain” and it gives clear case studies and makes very valid recommendations too.

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