Don’t Lock Women Out of Justice: Equality Not Discrimination

Article 2, CEDAW

---

On 13 and 14 November 2019 the Court of Appeal heard the case of Akhter v Khan. (Akhter v Khan [2018] EWFC 54)

The case concerned a British Pakistani couple who had been married for 18 years. Ms Akhter and Mr Khan had had a Muslim marriage ceremony (Nikkah) – resulting in a Muslim marriage contract between them – but had not formally undergone a civil marriage. Despite this, the couple were widely recognised as married in Britain and the UAE (where they lived from 2005 to 2011) for tax and other purposes. Ms Akhter had wanted a civil marriage and her husband promised that one would take place immediately after the Nikkah. This promise never materialised. The marriage ended when Mr Khan suggested that he take another wife and that it was Ms Akhter’s duty as a Muslim to accept it. Ms Akhtar has also alleged domestic abuse by Mr Khan.

Ms Akhter could not obtain a divorce because her husband said that their relationship constituted a ‘non-marriage.’ He claimed that as they had never been legally married, he owed his wife nothing. Unable to get a divorce, Ms Akhter sought to have her marriage declared ‘void’ (i.e. that it didn’t comply with all the legal formalities). The significance of this is that a void marriage would enable Ms Akhter to obtain a decree of nullity and claim the financial remedies to which she is entitled following the breakdown of her marriage. A void marriage also allows the family court to achieve a fair distribution of her family finances.

On 31 July 2018 Mr Justice Williams, a family court judge found in her favour. He said that ‘save for the issue of legal validity, this was a marriage and a long one at that’. He concluded that, in the interests of human rights and justice, the marriage should be recognised as ‘void’ and granted a decree of nullity. Significantly, in making his decision, Mr Justice Williams drew on principles including Article 8 of the European Convention of Human Rights.

Given the importance of the issue, the Attorney-General, acting on behalf of the government was made a party to the proceedings. The government’s stance is that Mr justice William’s was wrong to recognise the marriage as ‘void’ and that he had stretched the law of marriage too far by invoking human rights arguments.

SBS intervened in the appeal because the outcome will have significant implications for the rights of South Asian and other minority women in the UK. We believe that Mr Justice Williams was courageous in trying to ensure that Ms Akther had access to remedies to which she was entitled following the breakdown of her marriage.  We did not argue for the recognition of Sharia or religious marriages,  but that there is clearly a wider public interest at stake: the civil courts should accept that religious marriages are capable of being void, so that women, who are too often the financially weaker party in a marriage, can at least make a claim for a financial remedy in circumstances where they have no control over the process by which they are married.

Religious only marriages are on the rise amongst Muslim women in the UK and they are actively encouraged by abusive husbands and religious clerics who know that such women will not be able to seek redress in the formal legal system when their marriage breaks down. Their sole agenda is to oust the role of secular laws from women’s lives in order to deprive them of their civil and human rights.

An increasing number of women have no choice but to seek a divorce or ‘khula’ from so called Sharia courts, which more often than not, is denied in favour of reconciliation even in circumstances of domestic abuse. The result is marital captivity and limping marriages. Even where a religious divorce is granted, the process can involve other violations of rights including women being made to relinquish dowries, maintenance and their share of the matrimonial assets. In contrast, there is no financial forfeit when a man declares a divorce, or ‘talaq’.

The pattern of behaviour that we have often observed is one of deception or coercion and control over women by husbands and male religious and community leaders regarding decisions about marriage and divorce. In 2015, the government introduced legislation that finally recognised coercive and controlling behaviour in intimate and family relationships. The dynamics of such behaviour however, is not  understood in relation to minority women where such coercion and control extends beyond the private sphere and spills over into community and public spaces through the operation of fundamentalist inspired religious Sharia ‘courts’. Religious patriarchs engaging in unaccountable decision-making processes and practices that simultaneously subjugate women whilst giving the impression that they are exercising ‘choice’ and ‘agency’ in resorting to such forums

We argue that the state through the civil justice system has an important role in ensuring that women have equal access to their rights before, during and on the dissolution of marriage in circumstances where they have entered into a religious marriage only through deception and coercion. This is a fundamental principle of the Convention on the Elimination and Discrimination of Women. Article 16, for example, sets out that states need to take appropriate measures to eliminate discrimination in marriage and to ensure, in the interests of equality between men and women, ‘the same rights and responsibilities during marriage and at its dissolution’ and ‘the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration’.

The rights of minority women following the break up of their marriage are not being respected and upheld as things stand. We are, as a result, surprised by the government’s decision to challenge Mr Justice William’s judgment. This is not a case about recognising religious marriage, but about ensuring that abusers cannot weaponise religious marriages and exploit legal loopholes to avoid their financial and moral responsibilities and obligations following the dissolution of a marriage.

In the Court of Appeal, it was argued that this was not a matter for the courts but for the Law Commission and, ultimately, for Parliament. We disagree. The Law Commission’s process is extremely slow and cumbersome. There is no guarantee that its proposals for reform will be adopted by the government. Moreover, nor is this, a matter simply of raising awareness so that Muslim and other minority women are informed of their rights. Ms Akhter was herself a lawyer and knew her rights. She was, despite this, powerless in the face of her husband’s failure to make good his promise to have a civil marriage following their religious marriage.

This case reflects a broader power struggle waged by conservative and fundamentalist religious clerics who seek to wrest control over the regulation of marriage in minority communities away from the state. The state has chosen to endorse what amounts to a discriminatory response to minority women. Christian women in a similar situation are able to have their marriages declared ‘void’, and there are also similar provisions for Jewish and Quaker women who may have access to financial remedies from the courts. Women who have married in another religious system, however, are not afforded such protection. This in our view, amounts, , to a state abrogation of its moral, legal and political duty to ensure that all are equal before the law.

---

 Author

Pragna Patel, Director of Southall Black Sisters.

Pragna Patel is a founding member of the Southall Black Sisters. She worked as a co-ordinator and senior case worker for SBS from 1982 to 1993 when she left to train and practice as a solicitor. In 2009 she returned to SBS as its Director. She has been centrally involved in some of SBS’ most important cases and campaigns around domestic violence, immigration and religious fundamentalism. She has also written extensively on race, gender and religion.