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Islamic Marriages: What rights do I have in England and Wales?

An Islamic Marriage is a religious ceremony which involves a contract between the parties, known as a Nikah. The Nikah sets out the obligations that the parties have towards each other during the marriage.

The bride does not have to be present for the signing of the Nikah, so long as two witnesses are sent in her place. However, all Islamic Marriages have to be declared publically, this is often done by hosting a large party.

Are Islamic Marriages valid in England and Wales?

The validity of an Islamic Marriage is dependent on where the marriage took place.

If an Islamic Marriage takes place in England and Wales, it is not considered to be a valid marriage in the eyes of the law. You will not be able to obtain a divorce in the Courts of England and Wales as the marriage is not recognised.

However, if an Islamic Marriage takes place in a country where it is considered to be a valid marriage, then for the purposes of the Courts of England and Wales the marriage is valid and you are able to petition for divorce.

The only way to acquire rights as a spouse following an Islamic Marriage in England and Wales is to follow the religious ceremony with a civil ceremony that is recognised under the law of England and Wales. Alternatively, the Mosque or venue may be registered and able to perform valid marriages in England and Wales. If you are in doubt, you should check with the Imam or the person who will be conducting the ceremony.

Islamic Marriages

 

What are my rights in relation to the Matrimonial Home following the breakdown of my Islamic Marriage?

The rights you have are limited to those of unmarried cohabiting partners – for more information about cohabitation, click here. However, your rights are different depending on whether the property is jointly owned or in the sole name of one of the parties to the relationship.

Jointly Owned

If the property is in joint names, your interest will be set out in the title of the property held by HM Land Registry. Property can be held in two ways: as joint tenants or as tenants in common.

If you hold the property as tenants in common, you hold defined shares which can be any specified amount. If a Declaration of Trust was not signed at the time of purchase setting out specific shares, the presumption is that the property is held equally. It would be for the person disputing this to try to prove a different split of the equity. As a joint tenant, you are able to leave your share of the property to another person in your will.

If you hold the property as joint tenants, you own the property equally. However, if one of you dies, your share automatically passes to the surviving partner irrespective of any will you may have executed. Therefore, if you are separated from your partner and you hold property as joint tenants, it is vital to sever the joint tenancy. For more information on this, contact Austin Kemp to speak with a specialist family lawyer.

If your partner refuses to sell the property or will not release funds to “buy you out”, you can make an application to Court for an order for sale.

Sole Name

If the family home is in the sole name of your partner, you may be able to claim an interest in the property if one of the following is true:

1. you have contributed towards the purchase of the property and there was an intention for you to acquire an interest;
2. you can show there was a common intention for you to have an interest and you have acted to your detriment in reliance of that;
3. the owner has led you to believe you have an interest in the property and you have acted to your detriment in reliance of that.

To establish an interest, you will have to make a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). You will have to produce evidence to establish your interest to the Court. Not only is it very difficult to prove your interest, but TOLATA proceedings can be very costly and often require specialist advice from a barrister as well as a solicitor.

Do I have a financial claim against my partner’s assets after the breakdown of my Islamic Marriage?

In this section, individual categories of assets will be discussed as the legal position can be different depending on the assets in question.

Property Assets (Not the Family Home)

Unless you are a joint owner of the property, or you can prove that you have acquired an interest in the property (as set out above), you will have no claims against property in your partner’s name by virtue of an Islamic Marriage which took place in England and Wales.

Business Assets

If your marriage breaks down and your partner owns a business, you may be able to offset the value of their interest against other assets so that you take a larger portion of the capital. However, in the case of an Islamic Marriage which took place in England and Wales, you will not be able to make a claim such as this due to the fact that the marriage is not valid in England and Wales.

Pensions and Spousal Maintenance

If you have entered into an Islamic Marriage in England and Wales (which is not followed by a Civil Ceremony) and the relationship subsequently breaks down, you will not be eligible to make a claim on your former partner’s pension, nor will you be able to claim spousal maintenance from them. As the marriage is not recognised in England and Wales, you will not acquire any rights to make a claim for support following the breakdown.

What are my rights in relation to our children after the breakdown of my Islamic Marriage?

The Children Act 1989 introduced the concept of Parental Responsibility – this is an intentional shift away from the idea that parents have rights over their children to parents having responsibilities towards their children. Click on the link for more information about Parental Responsibility.

In summary, Parental Responsibility gives a parent the responsibility for making important decisions in a child’s life such as education, religion and medical care. Married parents both have Parental Responsibility , however if the parents are unmarried only the mother has Parental Responsibility.

If you have entered into an Islamic Marriage in the UK without also undertaking a Civil Ceremony, you are in the same position as an unmarried father. To find out more about a father’s rights, click here.

An unmarried father can acquire Parental Responsibility in one of six ways:
1. Being registered on the child’s birth certificate as the father;
2. Entering into a Parental Responsibility Agreement with the mother;
3. Applying to the Court for a Parental Responsibility Order;
4. Being appointed as a Guardian by the Court – Parental Responsibility will usually only be active on the mother’s death;
5. Obtain a Child Arrangements Order from the Court – you will also have to apply to the Court for permission to make the application;
6. Marry or enter into a Civil Partnership with the mother.

Before making an application to Court, you should consult with an expert family lawyer to determine the best course of action for you.

What can I do to protect myself?

If you are entering into an Islamic Marriage, by far the best way to protect yourself and acquire rights is to follow up the religious ceremony with a Civil Ceremony that is recognised in England and Wales. However, if you do not want to do so or are unable to do so, you should consider the options set out below in relation to finances and children.

Finances

Unfortunately, the only way to acquire an interest in your partner’s pension, or make an application for maintenance on separation is to legally marry or enter into a Civil Partnership. However, in relation to other assets, the following provisions can be put in place to afford you some level of protection if the relationship breaks down.

Cohabitation Agreement

A Cohabitation Agreement is a document signed by both parties which sets out the arrangements that will apply to their time living together, in addition it can deal with provision for both parties upon the breakdown of the relationship.

Register Property in Joint Names

Any property which you have contributed to should be registered in joint names. This will ensure that your interest in the property is protected without the need for lengthy and expensive proceedings under TOLATA.

Declaration of Trust

If a property is in joint names, but one party contributed more to the purchase of the property, it is always important to ensure that this split is recorded in a Declaration of Trust. This is a document which is signed as a Deed and sets out the respective shares that you each own.

If a Declaration of Trust has been put in place, it is highly unlikely that the other party would be successful in challenging distribution of funds as set out in the Deed.

Children

The easiest way to ensure you have Parental Responsibility as a father is to make sure your name is included on the birth certificate. However, if this has not happened, the following options are available to you.

Parental Responsibility Agreement

A Parental Responsibility agreement is a document which is entered into by both parents to give the father Parental Responsibility. The documents must be in a specific format and must be executed correctly for it to be valid. While this document can be entered into by agreement, it cannot be ended by agreement. The agreement will only come to an end when the child reached 18 years of age or by order of the Court.

Parental Responsibility Order

If your former partner is not willing to enter into a Parental Responsibility agreement with you, an application can be made to the Court for a Parental Responsibility order. This order gives an unmarried father Parental Responsibility and places him in broadly the same legal position (in respect of the children) as if the parties had been married.

If the paternity of the child is questioned, the Court has the ability to order blood tests to determine paternity. However, the Court will consider factors such as the father’s commitment to the child, the current relationship with the child and the father’s reasons for making the application when deciding whether or not to grant a Parental Responsibility order.

Child Arrangements Order

A Child Arrangements Order is an order which determines who can spend time with a child, how often this will take place and what format the contact will take. It can also set out who a child will live with. If a Court grants a Child Arrangements Order, it must also grant a PR order in respect of the father if he does not already have Parental Responsibility.

If an application is made, CAFCASS with speak with both parties prior to the first hearing. The role of CAFCASS is to consider the welfare of the child and make recommendations as to what is in the child’s best interests. CAFCASS and the Court will always support the children seeing and having a relationship with both parents, where it is safe to do so.

If you need to make an application for an order under the Children Act, you should always consult a specialist solicitor to advise as to the best option for your situation.

Contributed by Andrew Scott | Solicitor

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10th March 2020

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