On his deathbed, an imam in the United Kingdom had a confession to make: he had never registered the unions of hundreds of Muslim couples he married in his mosque. Despite promising these couples that he would do so, he forgot – a catastrophic mistake, as they and any children from their union would have no rights in UK law upon divorce or death. Taking his last breaths, the imam now begged for forgiveness.
As she shared this story, London-based solicitor Aina Khan offered statistics that have recently made headlines in the British press:
80% of Muslim couples under the age of 40 in the UK have not registered their marriages under civil law, while 80% of UK mosques are not registering the Islamic marriages conducted under their auspices.
The high rate of unregistered Muslim marriages, or ‘nikahs,’ has concerned traditional Muslim scholars, who worry that these numbers reflect a lack of Muslim integration into broader society and increasing injustice for women and children involved in such unions. Many are calling for Muslim couples to register their marriages under civil law.
“Because we live in a Western society where a traditional nikah can’t be enforced by the court and there is a lot of harm that results – particularly from the female side – people should be told to register,” said Ustadh Salman Younas, a SeekersGuidance teacher who has studied with many of today’s leading Islamic scholars.
The consequences of unregistered Muslim unions – in which couples sign an Islamic contract but fail to register their marriages with the government – can be extremely harmful. As the UK does not recognize an Islamic marriage contract as legally binding, if the marriage ends upon divorce or the death of a spouse, spouses owe each other nothing in terms of financial support, child care, or inheritance under British law. Removing one partner’s share of funds from a couple’s joint financial investment, such as a mortgage or family business, or from a shared bank account becomes extremely difficult.
The reasons for such high numbers of unregistered marriages are many. Although British headlines worried the numbers indicated a rise in religious extremism, Khan, who published the numbers after conducting research in the UK’s Muslim community, uncovered a different cause.
“Nine out of ten people do it out of sheer ignorance. They say, ‘oh, we’ll do it one day.’ What’s really important is the outfit, the venue, the color of the napkins,” said Khan, head of the Islamic department at Duncan Lewis. “[Others] want to avoid a divorce and a financial share of assets.”
The resistance to registering the marriage often comes from the groom and his family, according to Khan, who want to limit what he would owe the bride in a climate of high divorce rates. Some argue that divorce settlements under British law do not comply with their Islamic counterparts, taking away some of the rights men traditionally had under Islamic law.
Such a view, however, is antithetical to the Islamic spirit.
“Our religion calls for excellence,” said Ustadh Salman. “Are you going to say that because the husband isn’t going to have some of his rights, you’re going to take away virtually all of the wife’s rights?”
Unregistered marriages that end in divorce usually end up at one of Britain’s shari’a courts, which, while holding moral authority among Muslims, are not legally binding. Most of these courts go back to classical texts with traditional rulings that include giving the husband custody of children over the age of seven and leaving the wife no more than three months of financial support.
Few Muslim scholars in the West have dealt with how a post-divorce settlement would look like in a situation that includes new variables such as double income families and two-party contribution to mortgages. This is a problem, argued Ustadh Salman.
“Scholars should examine the family context,” said the ustadh, particularly when viewing the wife’s rights. “To say that all she’s allowed is three months upkeep and then off you go, there’s no link and the husband owes you nothing: that’s unfair in a contemporary context.”
One of the main pillars of Islamic law is justice. Scholars have long held that if older rulings do not establish justice in contemporary realities, then they must move beyond the letter of the text and look at the principles of the text to see how they apply to our current time, according to Ustadh Salman.
“There are many tools at the disposal of a mufti to change legal rules: custom, consideration of public interest, hardship, lesser of two evils, blocking the means to harm,” said Ustadh Salman. “All are well-documented in the tradition.”
In order to ensure the creation of rulings that establish justice based on the Prophetic model in contemporary society, Muslim scholars – and the community at large – must work with other professionals who have the necessary expertise in the fields being studied, such as marriage counselors or legal advisors, said Ustadh Salman.
Among the most common advice given by those experts is that prevention is the cure.
“Have a prenuptial agreement, write it down before the nikah: you’ll each keep your own earnings… Discuss these things,” said Khan, “and then forget about it and have a happy marriage.”
The Islamic contract itself can include clauses that give the wife, for example, the right to divorce if the marriage is not registered under civil law in a year’s time, said Ustadh Salman.
For unregistered couples whose marriages may be failing, however, Khan advised to put the needs of their children before their own and register their marriages. They could then sign an agreement that they would not take from each other more than they are owed Islamically. If that does not work, then a claim against the husband can be made for housing and other types of support if there are children from the marriage. Other issues, such as joint business ventures, can be dealt with, but this is both expensive and risky.
Ultimately, the only way to effectively deal with these issues is for Muslim scholars and community leaders to spread the the message about the consequences of unregistered marriages in the Muslim community, said Khan.
“It cannot be women demanding their rights from the outside,” said Khan. “We need sponsors – mostly male in our community – to support us by spreading this message.”
Khan’s “Register Our Marriage” campaign is one avenue for spreading the word on unregistered marriages. The campaign aims, among other things, to partner with Muslim scholars to publicize a narrative via road shows and social media that says an Islamic marriage is a legal marriage that protects all in it. It also asks mosques to pledge to become authorized to register civil marriages.
As for changes within the Islamic legal system, Ustadh Salman said that they are taking place. Although some may be frustrated with the pace of change, the discourse is progressing, especially as word about the consequences of unregistered marriages spreads through the community.
“Social progress always precedes law,” said Ustadh Salman. “It’s going to take some time to get solutions on this issue, but we need to keep pushing.”
Written by Nour Merza
Resources for Seekers:
Who Gets Custody of the Children After a Divorce?
Can One Get Married With the Goal of Getting Citizenship?
Words of Divorce and Dealing With Abuse in the Maliki School
How to Solve the Problem With Prolonged Engagements
Is It Valid to Divorce Someone While Angry or During Menstruation?
The Fiqh of the Marriage Feast (Walima)
The Ruling on Divorcing While Angry and Pronouncing Three Divorces
Is My Marriage Valid? (Shafi’i School)
What are the Wisdoms behind the Rulings on Divorce in Islam?
Islamic Law for Seekers (Hanafi): Marriage & Divorce (Course)
Basic Rulings and Length of the Waiting Period (`idda)
When Love is Not Enough
Understanding Marriage – A conversation with Imam Zaid Shakir
Should I Stay Married Even Though I Hate My Husband?