Couples Islamic ceremony did NOT create a legal marriage – Court of Appeal

The marriage of a woman who wed her husband in an Islamic ceremony should not have been declared void, the Court of Appeal has ruled, in a case we say could have significant consequences for marital rights.

Her Majesty’s Attorney General v Akhter and Khan concerns a decision by Mr Justice Williams, in the family court, to pronounce a decree nisi of nullity. The couple wed in an Islamic ceremony which took place in a London restaurant in 1998. They knew the ceremony had no legal effect and intended to follow it up with a civil marriage ceremony compliant with English law, but this did not happen. 

The wife issued a divorce petition in 2016, relying on the Islamic ceremony. The husband said the couple were not legally married. The wife then relied on the presumption of marriage and, alternatively, sought a decree of nullity under the Matrimonial Causes Act 1973. The attorney general intervened in the proceedings and argued that the petitioner was not entitled to a decree of nullity because the ceremony was of no legal effect.

Williams said the court was justified in taking a ‘holistic view of a process rather than a single ceremony’ and ruled that the wife was entitled to a decree of nullity.

However, in a judgment handed down today, the appeal court said the ceremony did not create a void marriage because it was a non-qualifying ceremony. ‘The parties were not marrying “under the provisions” of part II of the 1949 Marriage Act. The ceremony itself would have been permitted under section 44 if it had met the requirements of the law and had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. It was not, therefore, a marriage within the scope of, in particular, the provisions of section 26 of the 1949 act. We would also add that the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony which complied with the requirements of the 1949 act if they were to be validly married,’ the appeal court said.

The ruling has prompted calls for marriage laws to be updated. It is an unfortunate fact that every year thousands of women, usually muslim women, take part in these types of ceremonies and believe that they are legally married. Only when the relationship sours do they discover, to their shock and amazement, that they are not legally married and that the protections that the law gives to married women do not apply to them. Due to this, these women will miss out on a fair division of their husband’s assets and will have no rights of inheritance.

The previous High Court decision had given long needed hope to many women who are going through matrimonial breakdown with their Muslim husband’s, only to discover the English law does not recognise their marriage at all. However; today’s judgement, as unwelcome as it is, confirms the old position that these women will not be protected by the courts, unless the law of the land is changed. The only body who has the power to change the law is Parliament, which will need to pass a new law to help protect these women.

The issue being discussed here relates only to Muslim marriages that are conducted inside England & Wales. Those Muslim couples who marry according to their Islamic beliefs abroad are almost always validly married and those marriages are legal in England. But couples who actually have their marriage ceremony in England or Wales without a proper registration with the Registrar of Marriages, they are the ones affected by this decision.

Although this case involves a Muslim couple, the same law applies to any other religious couple who decide to marry in England using only their religious procedure and not the official Registrar of Marriages route.

If you have questions about the validity of your marriage, you can call us on 02084017352 for advice and guidance.

Putney Solicitors

Our new offices now provide a full legal service to the residents of Putney in the London Borough of Wandsworth. We are based a short walk from East Putney Underground or Southfields Underground stations and precisely on the border between Southfields, Wandsworth and Putney. For all legal enquiries relating to Matrimonial matters including divorce, children law matters and the financial aspects of divorce as well as numerous other areas of law including immigration law, commercial law, landlord and tenant matters and contracts and disputes as well as Wills & Probate we are ideally placed to offer a personalised and highly experienced and effective service to the residents of Putney in London.

Our new Putney office address is as follows:

193 Merton Road
Putney
London
SW18 5EF

To book and appointment either pop in or email us at info@solicitorsfirm.com or call 020 8401 7352

Parental Rights of Unmarried Fathers

Parental Rights of Unmarried Fathers

 

In England & Wales 1 in 3 children are born outside of marriage. This leads to no end of complications and problems for the unmarried fathers, many of whom end up with less rights and entitlements than the child’s mother. In most instances this is not a problem and the parents will work their way around this, whether or not they decide to stay together in a relationship. But of course, when it goes wrong, it often goes very wrong and it’s then that dad’s can be left ‘not holding the baby’. If you are reading this article, chances are you are a dad who is missing out on sharing a life with your child, due to relationship breakdown with someone to whom you were not married at the time of the child’s birth.

Unfortunately in the eyes of the law being the biological father of a child does not automatically give you any automatic rights. Parents usually have what is called parental responsibility over a child. This is the legal term which describes the rights and responsibilities of being a parent of a child. Parental responsibility can be obtained by the consent of the mother, but what if mum is unwilling to consent and unwilling even to admit that you are the father of the child. Mother’s are in a far stronger position here as mum’s automatically qualify for parental responsibility. Gaining parental responsibility means that you are responsible for looking after your child. It also means many other things too like having the right to have a say on many important issues relating to the child’s upbringing and welfare including the child’s education, medical care, choice of religion of the child and also choosing your own child’s name.

The Law regarding the parental responsibility of Fathers has changed a while back. In order for the father of the child to automatically obtain parental responsibility, he must be married to the mother of the child at the time of child’s birth. If the child was born after the 1st December 2003 and dad’s name is on the birth certificate then the father will qualify for parental responsibility. If the child was born before the 1st December 2003 and dad’s name was not on the birth certificate or the father was not married to the mother of the child then the Father will not automatically gain.

If the Father has not been automatically assigned parental responsibility then we can assist in obtaining this through the courts. The courts will always view the welfare of the child as the most important factor. This puts the child first which is what most responsible parents would want anyway. So if you are faced with a situation where the mother of your child is not being accommodating in your desire to take part in the upbringing of your child, you may need expert legal assistance. That is where we can help. We face situations like this and indeed far more complicated than this on a daily basis and we have in place the expertise and experience to assist you in resolving those issues and working toward a more balanced parenting regime where the only real and paramount consideration is the welfare of your child.

If you feel that you need some legal advice on your rights as a father, contact us on 020 8401 7352 to discuss your situation in the utmost confidence with a member of our specialist Family Law team. Alternatively you can send us an email at info@solicitorsfirm.com and a member of the Family Law team will do their very best to answer your questions and offer you an appointment.

Please note that we provide a highly personalised, specialised and boutique legal service and representation in Family Law matters, in all courts in England & Wales. As such we do not undertake Legal Aid work

Cohabitation Agreements

Couples who live together but do not marry can still have similar rights to married couples,  despite the Government’s U-turn on giving cohabiting couples more rights, says the Law Society

The Law Society has stated that despite the Government’s decision to drop plans to give couples that live together similar rights to married couples, unmarried couples can sign a cohabitation agreement which would give them stronger rights should their partner die or should the couple separate.

The Law Society guidance states that cohabitation agreements which are drafted by a solicitor could potentially put cohabiting couples in a better legal position than their married counterparts should the relationship breakdown. Under current law cohabitation agreements can be prepared for hetrosexual as well as same sex couples.

Law Society President John Wotton said“Although the Government has chosen not to legislate to give cohabiting couples the same rights as married couples, couples can sit down with their solicitor and draft a cohabitation agreement which caters for all eventualities. Unlike pre-nuptial agreements for married couples, cohabitation agreements are recognised by the courts in England & Wales as being legally binding. It is not yet established that pre-nuptial agreements for married couples are binding in the courts In light of the Government’s decision not to give live-in couples the same rights as married couples, there is perhaps a greater need for cohabiting couples to make these agreements as they do not have the same automatic protections as married couples. For example, when a spouse dies their husband or wife gains ownership of their estate in the absence of a will.”

Cohabiting couples should seek legal advice from their solicitor when drafting cohabitation agreements, as often there is more than a home that needs to be considered. Child care and other assets need to be taken into account, as well as property rights.

The Society also urges cohabiting couples, in the absence of protections under intestacy laws, to write wills to ensure their partner does not go without should they pass away. Without a will it is possible someone could end up with nothing from their partner’s estate.

The Law Society provides guidance to couples living together in their article Setting up Home with Your Partner

If you are considering entering into a cohabitation agreement with your partner, telephone us on 020 8401 7352 for a free telephone consultation and guidance or, to book an appointment.

Link to our page on Cohabitation Agreements

Telegraph article: How unmarried couples can have greater legal rights than husbands and wives (13.09.11)

domestic violence – what can I do to be safe

What Can I Do To Be Safe from Domestic Violence?

If you are considering leaving a violent relationship, you will be concerned about what will happen once you leave and what steps you can take to protect yourself afterwards. You will probably be concerned about what the other party may try to do to retaliate against you. These are normal concerns of our clients and questions that we often face. Experience shows that once you start the process of obtaining the protection of the courts, a previously violent partner will usually start to back off, not least because the protection afforded by the courts in domestic violence situations is real. However; in addition to the protection that the court will offer you, there are many other measures you can take to help protect yourself. We have listed below a few of your options:

Get an Injunction or Non-Molestation Order

Obtaining a non-molestation order should be the first thing you do to help you get out of a violent relationship. Although an injunction cannot physically protect you, your ex-partner will be arrested if they violate the order. Depending on what they try to do, they can face a significant custodial sentence. A non-molestation order can also prevent your ex-partner from contacting you or coming within a defined distance of your new home. In many instances where you decide to leave the property that you shared with that person, the court will also protect your new address from being disclosed to your ex-partner and can also make an Order preventing that person from going near the childrens schools or your work place.

Learn Self-Confidence & Self-Defence

Victims of domestic violence often lack self-esteem due to the abise that they have suffered. Learning to have confidence in yourself will help you stand up for yourself if the other party finds and confronts you. Learning self-defence is an excellent self-confidence booster. Also invest in a can of pepper spray. Always make sure that your mobile phone is fully charged and has sufficient credit when you are going out or home alone and keep all doors and windows locked at all times, day and night. Find a local counselling service and attend the meetings. They can do wonders to help boost your morale. Most important of all, never shy away from calling the police if you have any concerns. The police take domestic violence very seriously and will never treat a domestic violence call lightly. They know how frightened you will be and they also know how real the dangers can be for partners leaving a violent relationship. If you can’t learn self-defence because you are too frail or old, think about getting a dog. You would be surprised how many people are frightened of dogs.

Find A Roommate

If you have recently left a violent relationship, ask a friend to share a new home with you as a room or flat mate. Alternatively go and stay with family for a while. This will deter the other party from coming to your new home. If you do choose to get a roommate, then it is only fair to let them know your situation beforehand.

Change your Passwords

contact your bank and change your account passwords immediately. Do the same with your email account and all other things that you have passwords for. Your ex-partner will usually either know your passwords or be able to guess them. They will try to hack into your email account or Facebook or Twitter profile and they will take great pleasure at spilling out your personal information for the world to see. Take precautions and change all passwords to safe and difficultto guess passwords. Use a combination of words and numbers and do not use easy to guess numbers like dates of birth or speacial occasion dates. Inform your mobile and home phone network providersthat you have a violent ex-partner and place the accounts on high security with new passwords. Do the same with your savings account, PEP’s, ISA’s and anything else that you think your ex may try to ‘get at’.

Move Away From The Area

Moving to another area will help to deter your ex-partner from finding you. The further away you move, the least likely it will be that they will be able to find you. Try not to leave any forwarding address with the post office for your mail and asking family and friends not to reveal your whereabouts to your ex. Moving might be a difficult option if you are particularly closely connected to the area where you currently live. However, it may also be the perfect opportunity to start a new life for yourself somewhere new. The court will also help in keeping your new address secret from your ex-partner and in addition when attending court we always provide our domestic violence clients with a male chaparone to and from the court and where necessary we will also provide you with transport facilities so that your ex-partner or one of their friends cannot trace your movements.

Tell the Police

We will always notify your local police station as soon we obtain a non-molestation order on your behalf from the court. The police have systems where they record this type of information on a central computer and they will make sure that police officers monitor your address more closely and regularly pass by on their rounds to keep an eye on things. They will also add your phone number and address to a database that alerts them of the existence of the non-molestation order in the event that you should ever need to call them.

Change your Habits

A violent ex-partner will usually know a lot about you and your habits. They will know what you like doing and where you like going. They will also know what your movements usually are and where you can be expected to be. At times like this it is good idea to change your habits entirely. Stop visiting the usual old haunts and don’t take the usual route to and from work. Park your car in a different place, travel at different times and try to avoid quiet places. Tell your employers about your problem and you will usually find that they are more than happy to accommodate you. Tell a trusted friend at work and ask them to chaparone you to and from your car or the railway station. Try to stay in groups when you are out. You will not need to stick with your new routine indefinitely! Almost all violent ex-patners eventually get the message from the court that they cannot try to communicate withyou. In our experience these types of people are usually cowards why prey on people weaker than themselves. Once confronted by the law and the courts they almost always pull themselves together and back off! However; getting out of a violent relationship does need you to be cautious, at least for a while.

These are just a few of the many steps you can take to help protect yourself when leaving a domestic violence relationship. The most important thing is that you know how far your ex-partner will go and you therefore need to plan accordingly. The more extreme you feel your ex-partner will act about you leaving, the more extensive measures you will need to take to keep yourself safe.

Call the Experts

Call us on 020 8401 7352 as soon as think that you are ready to start the process of protecting yourself and getting out of a Domestic Violence relationship. We are not just experts at the law. We are experts at listening to you, understanding your needs and concerns and, above all at helping you regain your life after separation. We have helped hundreds of people through the process and will do everything possible to guide you through, safely and, confident that you have the best possible legal team acting for you. We will defend your position and safety at court and will invite the court to impose the toughest possible conditions on your ex. We have no compassion for violent partners and will ensure that they are prosecuted to the full extent of the law. Domestic Violence is inexcusable and unjustifiable.

We offer a free 30 minute telephone consultation to help you decide what you want to do and what is best for you. Call us today on 020 8401 7352