In a guest post, Professor Rebecca Probert of Exeter Law School and Dr Rajnaara Akhtar, Senior Lecturer at Leicester De Montfort Law School, highlight some of the pitfalls in the Government’s Green Paper on integration.
The government’s recent Integrated Communities Strategy Green Paper aims to boost integration ‘in our most isolated and deprived communities’ and focuses, amongst other things, on family law matters. When social deprivation or disadvantage is experienced along ethnic, racial, or religious lines, it is clearly important to understand why these particular communities are facing isolation. But this also presents the danger of failing to acknowledge which experiences are common to all communities.
In particular, there is a worrying tendency to focus on the marriage practices of Muslim communities. The recent Independent Review into sharia law recommended criminalising imams and others who conduct religious-only marriages. The Green Paper subsequently expressed support ‘in principle’ for the requirement that a ‘civil marriage’ should be necessary alongside a religious marriage. However, these recommendations display confusion as to the law and are missing a complex bigger picture.
Civil or religious marriage?
Members of all religious faiths can have a legally recognised religious marriage if they follow certain formalities. A Muslim religious marriage which takes place after notice has been given to the authorities, in a registered place of worship, and in the presence of either a civil registrar or a registrar appointed by the place of worship, will be a legally recognised marriage. Slightly different rules apply to Anglicans, Quakers and Jews but, otherwise, this option is available to all religious groups, Baptist, Catholic, Hindu, Methodist, Muslim, Sikh and any other faith or denomination.
In referring to ‘civil marriages‘, the Green Paper is presumably simply aiming to encourage compliance with the existing framework rather than abolishing the option of a legally-recognised religious marriage. While those marrying in a religious ceremony in a religious place of worship have to include the same words as are prescribed for a civil marriage, this alone does not justify the label ‘civil,’ any more than the same requirement to give notice does. The nineteenth-century Nonconformists who campaigned for reform would be surprised by the suggestion that they had not won the right to a religious ceremony.
If couples don’t comply with any of the legal requirements for a marriage, the state doesn’t regard them as married. The outcome of this is that they are seen as cohabitants. They join the other 3.3 million couples who are cohabiting in the UK and who are not protected by family law when their relationship ends. In both situations, it is often women who are vulnerable to financial loss and insecurity. The obvious question which arises here is why protections are being sought for the group in religious-only marriages, while all other cohabitants are effectively being ignored.
For decades, English courts have been dealing with the legal vulnerability of cohabiting couples. Those who mistakenly believe that they have a “common-law marriage” giving them the same rights as married couples may be even more vulnerable than those who are aware that their religious-only marriage is not legally binding. Left without recourse to matrimonial remedies if their relationship breaks down, and with no automatic rights under intestacy when their partner dies, they too need some form of redress.
Calls for reform
The Independent Review identified the problem as being that Islamic marriages were not being “civilly registered” and that there should be a duty to register such marriages. But focusing on registration—which is neither essential nor sufficient to validate a marriage—confuses matters. The existing obligations to register marriages already apply to all faith groups, but only where a marriage has been celebrated in accordance with the required formalities. No one other than the appointed person—whether Anglican clergyman, Quaker registering officer, Jewish secretary, authorised person appointed by a religious place of worship, or civil registrar—can register a marriage. Imposing obligations on anyone conducting a marriage would require changing the whole system of registration.
The call to criminalise imams conducting religious-only marriages is even more problematic. Under the current law, an imam who is an authorised person commits an offence if he fails to comply with the provisions of the Marriage Act. An imam who is not an authorised person might still commit an offence if he solemnized a marriage in a registered building without an authorised person or registrar being present. The reason that conducting a nikah outside the framework of the Marriage Act is not currently a criminal offence is not because the legislation does not apply to Islamic marriages but because the offences apply only to specific persons, or to omissions of specific acts.
For many young Muslims, a religious-only marriage allows them to cohabit or begin an intimate relationship before entering into a legally binding marriage, just as their peers do. This reflects a form of integration, not isolation, reflecting wider social norms about the importance of testing a relationship in advance of any legal commitment. This explains why, in a recent Channel 4 survey, of the 61% who were in religious-only marriages, only 28% actually wanted state recognition. Taking away the option of religious-only marriage by criminalising imams who conduct them could force these couples either to flout religious and community norms or enter into marriages at a much earlier age – both of which may have significant consequences.
Limiting any criminal offence to marriages that have a religious dimension could be challenged as discriminatory; limiting it to Muslim marriages even more so. In any case, the parties themselves can conduct a nikah, with witnesses present; an imam is not necessary. Therefore, any criminal offence could be easily evaded if a couple so wished. If legal reform is to be generic and not target any particular community, it would, of course, be possible to make it a crime to conduct a marriage outside the framework of the Marriage Act, but the implications of this need to be considered. Such an offence would outlaw the growing number of ceremonies being conducted by humanists and other non-religious belief organisations. Given the popularity of such ceremonies, it seems unlikely that this is something that the government would wish to do.
It is clear that reform is needed, but we need to look at the law relating to marriage—and cohabitation—as a whole. Any new criminal offences relating to non-legally-binding marriages should focus on the really problematic cases of deception or undue pressure. Ultimately, what is needed is in-depth research about modern attitudes and relationship practices, and solutions which resolve these issues for all communities, rather than targeting one particular group.
Rebecca Probert and Rajnaara Akhtar
Cite this article as: Rebecca Probert and Rajnaara Akhtar, “Integration: seeing the bigger picture” in Law & Religion UK, 21 March 2018, https://www.lawandreligionuk.com/2018/03/21/integration-seeing-the-bigger-picture/#more-42758
But s75 of the Marriage Act already imposes various penalties on clergy and others, whether or not authorised (including up to 14 years imprisonment for celebrating a marriage outside the permitted hours of 8am-6pm), so it is hardly discriminatory to apply these to ‘religious-only’ Islamic marriages. But yes, wholesale reform is needed.
S.114 of the Protection of Freedoms Act 2012, which came into force on 1 October 2012, repealed s.4 of the Marriage Act 1949 Act, thereby removing the statutory restriction, and also repealed the criminal offence under s.75(1)(a) of solemnizing a marriage outside the permitted hours.
But the repeal of s.4 hasn’t changed the hours between which a marriage may lawfully be solemnized in the Church of England, because Canon B 35.3 still provides that “A marriage may not be solemnized at any unseasonable hours but only between the hours of eight in the forenoon and six in the afternoon”. So there’s now a divergence between the secular and ecclesiastical law on the point.
Readers might be interested in the NZ statute the Property (Relationships) Act 1976 text searchable on http://www.legislation.govt.nz as to the division of property on the end of a relationship including situations where couples are unmarried.
I’m sorry but Professor Probert seems to be ignoring s.75 Marriage Act & R v Bham 1966 1 WB 159. They make it clear that Christian ministers (of all denominations), Quakers and rabbis have to register the marriages they officiate or they face prosecution. It is an anomaly and discriminatory that s.75 does not clearly and unambiguously cover Muslim, Hindu etc marriages. Extending s.75 to cover all religious marriages merely makes the system fair for all.
The distinction she attempts to draw between ‘civil’ & ‘religious’ marriage is frankly disingenuous. The government paper is maybe not the best worded but its meaning is clear. All marriages in England & Wales are ‘Civil’ marriages if the Civil law recognises it as such. In the eyes of the law, a marriage performed in a Catholic Church, a marriage performed in a synagogue or a marriage performed in a Registry Office are all equally valid and are governed by the same rules of the civil law because all are registered under the Marriage Act. It is frankly socially divisive and intellectually patronising to believe that it is wrong to impose the same requirements on Muslim marriage ceremonies. Muslim Weddings in most Muslim countries have to be registered see ‘http://rupcare.com/muslim-marriage-registration-fee-in-bangladesh/# for the rules in Muslim majority Bangladesh where non-registration is a criminal offence.