Are you really married?

Islamic marriage

Islamic faith marriages are not valid under English law, the Court of Appeal has ruled and as a result thousands of Muslim women will have no rights when it comes to divorce.

The appeal court recently ruled that Islamic marriages known as ‘nikahs’ are legally ‘non-marriages’, which means that spouses have no redress to the courts for a division of matrimonial assets, such as the matrimonial home and the spouse’s pension, if the marriage breaks down.

The appeal court ruled that a nikah marriage is a void marriage as it is entered into without certain requirements as to the formation of marriage.

Many couples who have ‘married’ through a nikah ceremony believe that they are lawfully married.  However, their marriages are only lawful if they have undergone an additional separate civil ceremony.

Keith Bull, Head of the Family Law department of Bromleys Solicitors LLP (to whom I am indebted for alerting me to this issue) advises that “The women who have only undergone a nikah ceremony will have no rights to assets in the husband’s sole name, including his pension and no right to spousal maintenance.”

Keith recommends that Muslim couples undergo a separate civil ceremony usually through a local Registry Office, as well as the nikah religious ceremony, to give Muslim women protection and redress for full financial claims in the event of the marriage breaking down under the English law (and this may also be a good idea for tax purposes – see below).

What about the tax?

Marriage bestows many tax advantages too and so Islamic married couples really should be checking their status. A few thoughts spring to mind here:

  1. Asset transfers between spouses usually take place free from capital gains tax and the recipient spouse takes on the tax base cost of the transferring spouse. If Islamic couples are not legally married then they may end up inadvertently triggering ‘dry’ tax charges or engaging in ineffective tax planning.

  2. One spouse inherits assets from the other spouse free from UK inheritance tax (IHT). It would be very serious if an Islamic ‘spouse’ were to find themselves hit with an unexpected 40% IHT liability.

Final comment

As the above legal case was about divorce it is unclear whether HMRC will take the point about Islamic marriage not being valid in the UK, however a simple civil ceremony can seemingly put the issue beyond doubt. Also for some, this may be a good excuse to look forward to a party at a later date in these testing times!

 

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