The old folk wisdom is that we should never believe what we read in the newspapers. A useful example of this being a story going around today, that a British court has just recognised a nikah – a type of marriage under Sharia law – as being valid in Britain. This isn’t actually the case, the finding was in fact exactly the opposite. That this nikah marriage, conducted under that Sharia law, was not in fact legal under English – don’t forget, Scotland has its own legal system – law. In fact, so much so that the marriage never took place according to English law, it is void.
A British court has recognised sharia law for the first time in a landmark decision as a judge ruled that a wife can claim her husband’s assets in the split.
The decision came about after Nasreen Akhter wanted a divorce from her husband Mohammed Shabaz Khan. The couple were wed in an Islamic faith marriage in 1998.
Mr Khan wanted to block Mrs Akhter’s divorce on the basis that they are ‘not legally married’ under English law and says they are married ‘under Sharia law only’.
The High Court ruling on Wednesday said their union should be valid and recognised because their vows had similar expectations of a British marriage contract.
No, that’s an entire misreading of what the High Court said. But then, you know, the Daily Mail. The Telegraph has the same story and they’ve more of it. Which makes it worse of course, for they make the same mistake while also presenting the evidence to show that it’s wrong
In the high-profile case Mrs Akhtar and her businessman husband Mohammed Shabaz Khan were deemed to have a valid marriage.
The Judge said the union should be recognised because the couple, who took their vows in 1998, lived as man and wife, introduced each other as such and had expectations similar to a British marriage contract.
That part’s correct, the bit about recognising Sharia and nikah isn’t.
In the High Court case Mrs Akhtar’s husband Mr Khan sought to block her application for divorce in the UK court on the basis that they were never legally married.
But Mr Justice Williams decided that the marriage was “entered into in disregard of certain requirements as to the formation of marriage”.
He said the marriage was therefore “void” and that Mrs Akhter is entitled to a decree of nullity. If he had ruled it was a non-marriage she would not have been able to make a case in the British divorce court.
So a decree of nullity. Similar to the idea of an anullment of the marriage. That is, it never took place. At least in the form claimed. It is void, about which we are told:
A void marriage is a marriage which is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is “one that is void and invalid from its beginning. It is as though the marriage never existed and it requires no formality to terminate.
The entire point of this judgement is that the Sharia law marriage ain’t a marriage recognised in English law.
What happens then, and what is confusing – other than the young shavers who are journalists these days just not getting it – is that in the entire absence of anything called a valid marriage everything falls back to basic common law. If you act like you’re married, tell everyone you’re married, have a ceremony where you say you’re married, then to a certain extent you are married. Verbal contracts do exist in English law, offer, acceptance, performance, consideration, these things create a contractual relationship. No, it’s not exactly the same as a marriage recognised as that state approved contract. But it is something akin to it and there are rules and regulations about undoing the financial aspects of it.
Which is the actual heart of this case. In the absence of a nikah marriage being recognised in English law then everything devolves back to those standard common law terms (no, not common law marriage, that doesn’t really exist in English law). This is what the High Court has ruled. Nikah marriages, Sharia law ones, are not recognised in English law. Thus that presumed marriage in in fact void, it never happened. Thus everything needs to be sorted out under the standard provisions of contract and common law.
Yes, I am sure a good lawyer could pick holes in some of the details above. But the basics there are correct.
All of which is a useful example of Gell Mann Amnesia, isn’t it? Whenever we read a newspaper piece on a subject we know something about we pick holes in it. See that it’s wrong. And then turn the page and accept as gospel the similar errors on things we don’t know about.
Or, as Granny said, never believe what you read in the papers.