SOAS, SCHOOL OF LAW
UNIVERSITY OF LONDON
FAMILY LAW
Question 1
“English marriage law is outdated and in urgent need of reform.”
Discuss.
The institution of marriage is entrenched in the human life agendas. This makes it subject to
a lot of scrutiny and thus gives it a coherent dynamic. This manifestation of mutuality holds
various values ranging from political and functional to psychological and religious. Hence it is
of no surprise that the topic gets a lot of attention. The legal definition is cited in the case of
Hyde v Hyde and Woodhouse1. It purports that marriage is a voluntary union for life of one
man and one woman to the exclusion of all others. The question raises a query about the
uncertainty in the law, which has led to numerous problems in contemporary times.
Starting off with a few comments on the current act which governs the avenue of marriage.
Marriage Act 1949 was drafted to cater the needs of 19th century, in today’s day and age it
does not adequately provide for many faiths and non-religious beliefs. Even though the
amended version Marriage law 1995 refines and loosens some restrictions however there is
still a lot of incoherencies in the law. According to Law Commission report, this act is overly
restrictive, with where and how marriages can take place being tightly regulated2. The
cardinal component of contention is the fact that for a few religions such as British Muslims,
Hindus and some other minority faiths, they have to perform marriage twice. One that
accounts for the religious beliefs and the other which satisfies the current laws that gives
marriage a legal cover. However, some majority faiths have seemed to surpass this dual
nature of marriage. Christians, Jews and Quakers are exempt from performing a second
marriage as their first one fulfills the legal criteria provided that it is executed following the
proper rules3. It is very concerning that these kinds of religious discriminatory laws existed
and are being followed in the era where United Nations and pre-Brexit ECHR were in
operation.
The law around marriage also states that the place of marriage should be a registered
marriage center in the presence of a person of authority. On that idea in the case of A-M v A-
M4 and El Gamal v Maktoum5, Islamic marriage in a flat and Hindu ceremony in a flat
constituted as non-qualifying ceremony. It is arguable that that the underlying rules of what
constitutes as marriage might be derived from Christian faith. The case of Attorney General
1
(1886) LR 1 PD 130
2
“Marriage Law – Outdated and in Need of Reform | Law Commission”
<https://www.lawcom.gov.uk/marriage-law-outdated-and-in-need-of-reform/>.
3
Vishal Vora, “English Marriage Law Discriminates against Minorities – Celebrants Could
Change That” (The ConversationJuly 28, 2017) <https://theconversation.com/english-
marriage-law-discriminates-against-minorities-celebrants-could-change-that-73943>
accessed February 22, 2022.
4
[2001] 2 FLR 6
5
[2011] EWHC B27 (Fam)
, v Akhter and Khan6 is a landmark case which highlights the obsolete nature of marriage law.
In the case a couple had nikkah ceremony in a restaurant knowing that they weren’t
following the formalities. The issue revolved around the debate whether the marriage was
void or constituted as void. Justice William asserted that because most of the marital
formalities were performed such as having witnesses, ceremony in public it should amount
as NQC. He also made use of Article 8 and 12 of the ECHR to support his judgement.
However, the court of appeal reached the opposite conclusion. Basing the judgement on the
reason that provisions in the Marriage Act 1949 weren’t complied with this amount as NQC.
CoA rejected the ECHR argument presented by William J saying that there is no breach.
The CoA chose to adopt a strict and rigid interpretation of the statute whereas it would be
safe to say William J had a more flexible approach as he tried to equalize the discrepancy
between Muslim and Christian marriage validity. However, CoA stated that arguments
presented for this fair outcome wouldn’t withstand analysis.
The judgement by CoA on the Akhtar and Khan case didn’t sit well with the and hence in the
case of R(Harrison) v Secretary of State for Justice7 it was accepted by Human Rights Act
1998 that the law was discriminatory. These flaws have been endorsed by the law
Commission as Professor Nicholas Hopkins said that the commission believes that the
couples should get married in the way they want and the place that is meaningful to them8.
This problem is not just restricted to the institution of marriage but to the residue of it as well.
William J asserted in the case of Akhtar that it is a clear disadvantage to children when the
financial remedies are not given to the parents. Prime example of one problem leading to
another hence morality just seconded by legality.
Another aspect of the current marriage law is that it does not allow non-religious marriages
to hold a legal significance9. Hence, they are regarded as cohabiting couples with no legal
remedy or a remedy that is far less than the one available to the married couple. This lack of
recognition to legally unqualified wedding led to marriages without any legal significance.
There is a huge proportion of people that do not want to go through the hassle of registering
their marriages or taking it one step further by fulfilling the formalities (according to a survey
published 60% of respondents did not have a civil marriage and instead only conducted
nikkah meaning that in the eyes of law the couple wasn’t married10). This might not seem like
a big issue, but this can lead to problems when the couples split such as who is going to
take the custody of child, how the assets are to be divided etc. Without legal intervention it is
rare that these duties will be executed justly and often it is the child that becomes the
collateral damage. These also lead to women side suffering financial losses in most cases
males are the breadwinners of the family and hence the ones which gets the privilege. As
per Jenkins research incomes of separating husbands rise immediately and continuously in
years following a marital split and the difference between genders are stark11. These issues
develop to foster the 21st century movements such as feminist and Me Too.
6
[2020] EWCA Civ 122
7
[2020] EWHC 2096
8
n (2) [6]
9
Religion And Marriage Law: The Need for Reform' (Stisonbooks.com, 2021)
<https://www.stisonbooks.com/media/Religion-and-Marriage-Law-Policy-Briefing.pdf> accessed
23 February 2022.
10
'The Continuing Muslim Marriage Conundrum: The Law of England and Wales on Religious
Marriage and Non-Marriage in The United Kingdom' (Taylor & Francis, 2022)
<https://www.tandfonline.com/doi/full/10.1080/13602004.2020.1744839> accessed 24 February
2022.
11
'Men Become Richer After Divorce' (the Guardian, 2022)
<https://www.theguardian.com/lifeandstyle/2009/jan/25/divorce-women-research> accessed 24
February 2022.
UNIVERSITY OF LONDON
FAMILY LAW
Question 1
“English marriage law is outdated and in urgent need of reform.”
Discuss.
The institution of marriage is entrenched in the human life agendas. This makes it subject to
a lot of scrutiny and thus gives it a coherent dynamic. This manifestation of mutuality holds
various values ranging from political and functional to psychological and religious. Hence it is
of no surprise that the topic gets a lot of attention. The legal definition is cited in the case of
Hyde v Hyde and Woodhouse1. It purports that marriage is a voluntary union for life of one
man and one woman to the exclusion of all others. The question raises a query about the
uncertainty in the law, which has led to numerous problems in contemporary times.
Starting off with a few comments on the current act which governs the avenue of marriage.
Marriage Act 1949 was drafted to cater the needs of 19th century, in today’s day and age it
does not adequately provide for many faiths and non-religious beliefs. Even though the
amended version Marriage law 1995 refines and loosens some restrictions however there is
still a lot of incoherencies in the law. According to Law Commission report, this act is overly
restrictive, with where and how marriages can take place being tightly regulated2. The
cardinal component of contention is the fact that for a few religions such as British Muslims,
Hindus and some other minority faiths, they have to perform marriage twice. One that
accounts for the religious beliefs and the other which satisfies the current laws that gives
marriage a legal cover. However, some majority faiths have seemed to surpass this dual
nature of marriage. Christians, Jews and Quakers are exempt from performing a second
marriage as their first one fulfills the legal criteria provided that it is executed following the
proper rules3. It is very concerning that these kinds of religious discriminatory laws existed
and are being followed in the era where United Nations and pre-Brexit ECHR were in
operation.
The law around marriage also states that the place of marriage should be a registered
marriage center in the presence of a person of authority. On that idea in the case of A-M v A-
M4 and El Gamal v Maktoum5, Islamic marriage in a flat and Hindu ceremony in a flat
constituted as non-qualifying ceremony. It is arguable that that the underlying rules of what
constitutes as marriage might be derived from Christian faith. The case of Attorney General
1
(1886) LR 1 PD 130
2
“Marriage Law – Outdated and in Need of Reform | Law Commission”
<https://www.lawcom.gov.uk/marriage-law-outdated-and-in-need-of-reform/>.
3
Vishal Vora, “English Marriage Law Discriminates against Minorities – Celebrants Could
Change That” (The ConversationJuly 28, 2017) <https://theconversation.com/english-
marriage-law-discriminates-against-minorities-celebrants-could-change-that-73943>
accessed February 22, 2022.
4
[2001] 2 FLR 6
5
[2011] EWHC B27 (Fam)
, v Akhter and Khan6 is a landmark case which highlights the obsolete nature of marriage law.
In the case a couple had nikkah ceremony in a restaurant knowing that they weren’t
following the formalities. The issue revolved around the debate whether the marriage was
void or constituted as void. Justice William asserted that because most of the marital
formalities were performed such as having witnesses, ceremony in public it should amount
as NQC. He also made use of Article 8 and 12 of the ECHR to support his judgement.
However, the court of appeal reached the opposite conclusion. Basing the judgement on the
reason that provisions in the Marriage Act 1949 weren’t complied with this amount as NQC.
CoA rejected the ECHR argument presented by William J saying that there is no breach.
The CoA chose to adopt a strict and rigid interpretation of the statute whereas it would be
safe to say William J had a more flexible approach as he tried to equalize the discrepancy
between Muslim and Christian marriage validity. However, CoA stated that arguments
presented for this fair outcome wouldn’t withstand analysis.
The judgement by CoA on the Akhtar and Khan case didn’t sit well with the and hence in the
case of R(Harrison) v Secretary of State for Justice7 it was accepted by Human Rights Act
1998 that the law was discriminatory. These flaws have been endorsed by the law
Commission as Professor Nicholas Hopkins said that the commission believes that the
couples should get married in the way they want and the place that is meaningful to them8.
This problem is not just restricted to the institution of marriage but to the residue of it as well.
William J asserted in the case of Akhtar that it is a clear disadvantage to children when the
financial remedies are not given to the parents. Prime example of one problem leading to
another hence morality just seconded by legality.
Another aspect of the current marriage law is that it does not allow non-religious marriages
to hold a legal significance9. Hence, they are regarded as cohabiting couples with no legal
remedy or a remedy that is far less than the one available to the married couple. This lack of
recognition to legally unqualified wedding led to marriages without any legal significance.
There is a huge proportion of people that do not want to go through the hassle of registering
their marriages or taking it one step further by fulfilling the formalities (according to a survey
published 60% of respondents did not have a civil marriage and instead only conducted
nikkah meaning that in the eyes of law the couple wasn’t married10). This might not seem like
a big issue, but this can lead to problems when the couples split such as who is going to
take the custody of child, how the assets are to be divided etc. Without legal intervention it is
rare that these duties will be executed justly and often it is the child that becomes the
collateral damage. These also lead to women side suffering financial losses in most cases
males are the breadwinners of the family and hence the ones which gets the privilege. As
per Jenkins research incomes of separating husbands rise immediately and continuously in
years following a marital split and the difference between genders are stark11. These issues
develop to foster the 21st century movements such as feminist and Me Too.
6
[2020] EWCA Civ 122
7
[2020] EWHC 2096
8
n (2) [6]
9
Religion And Marriage Law: The Need for Reform' (Stisonbooks.com, 2021)
<https://www.stisonbooks.com/media/Religion-and-Marriage-Law-Policy-Briefing.pdf> accessed
23 February 2022.
10
'The Continuing Muslim Marriage Conundrum: The Law of England and Wales on Religious
Marriage and Non-Marriage in The United Kingdom' (Taylor & Francis, 2022)
<https://www.tandfonline.com/doi/full/10.1080/13602004.2020.1744839> accessed 24 February
2022.
11
'Men Become Richer After Divorce' (the Guardian, 2022)
<https://www.theguardian.com/lifeandstyle/2009/jan/25/divorce-women-research> accessed 24
February 2022.
