HMG has published its promised Integrated Communities Strategy Green Paper. The proposals are wide-ranging and subject to a consultation (with some very general questions, almost for discussion rather than factual responses) which closes on 5 June. We shall no doubt be returning to this subject in future posts, but we thought it might be helpful to report the proposals on nikah weddings.
The Green Paper points out that not all relationships and marriages are recognised in law and there is a need for greater awareness about their legal status. It reminds readers, for example, that despite persistent myths there is no such thing as a “common law marriages” in England and Wales (nor, for that matter, in Scotland or Northern Ireland). Crucially:
“Other relationships, such as unregistered religious marriages, are also not recognised under marriage law in England and Wales, leaving individuals without full legal rights upon divorce should the marriage break down. This can particularly leave women vulnerable both to financial hardship upon divorce and to unfair treatment by some religious councils.
As identified by the recently-published independent review into the application of sharia law in England and Wales, this can be a particular problem for Muslim women. There is some evidence that some sharia councils may be working in a discriminatory and unacceptable way – for example by seeking to legitimise forced marriage and making arrangements on divorce that are unfair to women.”
Under the heading “What are we going to do?”, the Green Paper says this [emphasis added]:
“We welcome the independent review into the application of sharia law in England and Wales. Couples from faith communities have long been able to enter a legally recognised marriage through a religious ceremony if the requirements of the law are met. However, we share the concern raised in the review that some couples may marry in a way that does not give them the legal protections available to others in a civilly registered marriage. We are also concerned by reports of women being discriminated against and treated unfairly by some religious councils. The government is supportive in principle of the requirement that civil marriages are conducted before or at the same time as religious ceremonies. Therefore, the government will explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings. The government considers that the review’s proposal to create a state-facilitated or endorsed regulation scheme for sharia councils would confer upon them legitimacy as alternative forms of dispute resolution. The government does not consider there to be a role for the state to act in this way.
Government will also support awareness campaigns in partnership with voluntary sector organisations, such as advice centres, non-government organisations and women’s groups, to educate and inform couples and their children of the consequences of not having a civilly-registered marriage. This will include the signposting of advice and information to address misconceptions. We will work with voluntary organisations on issues around first-cousin marriages.”
In short, the Government will have a look at making a civil marriage ceremony a necessary prerequisite to a religious ceremony (though not, presumably, to a marriage solemnised in the Church of England or Church in Wales) but has firmly rejected the proposal of the review chaired by Professor Mona Siddiqui to introduce state regulation of sharia councils. The Green Paper also proposes further work on forced marriages.
Neil Addison commented on my earlier post that “All they need to do is amend the Marriage Act so that it clearly applies to all religious marriages, not just Christian, Jewish & Quaker marriages”. Alternatively – or in addition – perhaps the Government might reconsider its rejection of the Law Commission’s proposal to consider afresh the law on the formation of marriage in England and Wales.
The Law Commission’s response to the rejection of the proposal pointed out that “the pressure for change in relation to marriage law – or at least for a comprehensive review of the area – is unlikely to diminish”; and the inclusion of religious-only marriage ceremonies in today’s Green Paper would appear to support that view.
The much-amended Marriage Act 1949 will celebrate (if that’s the right word) its seventieth birthday next year and it was consolidation rather than new law even when originally enacted:
“An Act to consolidate certain enactments relating to the solemnization and registration of marriages in England with such corrections and improvements as may be authorised under the Consolidation of Enactments (Procedure) Act 1949.”
Given that the Law Commission has already done the spade-work in its scoping paper published in December 2015, might the Government reconsider?
From Alan Rogers:
I sent a small contribution to the Ministry of Justice consultation on marriage in August 2014. My argument in my contribution was that legally, marriage is a contract between two people and between those people and the State.
A contract is required because privileges and responsibilities vis-à-vis the participants and the State are a result of marriage (nationality, responsibility towards children of the marriage, tax advantages) and even between the participants and some non-State entities (pension funds, insurance companies).
Consequently, all marriages should (indeed must) be registered by the civil authorities.
I would like to see the seriousness and consequences of these contracts made clear and to do this I think both any religious ceremony and any non-religious celebratory activities should be detached in space and time from the legal process of making the marriage contract… as they are in Austria. (Perhaps this is a survival from the Napoleonic Code?)
It is for this reason I find myself at odds with the British Humanist Association which wishes to license Humanist celebrants to conduct (quasi-religious) wedding ceremonies.
It seems to me that the crucial consideration is the protection of the relict vis-à-vis other dependents whether after decease or divorce of the partner. The fairest (and therefore most just) solution should be a presumption of marriage whenever a clear intention is proven (although the basis of the presumption may not be easy to define).
It may also be that such an assumption would in some cases be wrong as to the intentions of the parties.
Apparently, because a devout Muslim family would never let an unmarried daughter be alone unchaperoned with a man from outside the family, Muslim couples sometimes enter a nikah ceremony just so they can – in the horrible Americanism – ‘date’. If it works out, they may have a civil ceremony; if it doesn’t, they’ll have a talaq divorce.
Frank, that is why I argue that the intention should be proven, as a condition precedent to the presumption – reversing the ordinary burden of proof. Rebuttal also remains open.