The Court of Appeal of England and Wales ruled, in February, 2020 that a marriage performed in England under Islamic law, without following English law, is not valid. (The Court of Appeal for England and Wales is the highest court for England and Wales, second in authority to the Supreme Court of the United Kingdom).

What is Islamic Marriage?

In Islamic law, marriage is called Nikah (“نِكَاح‎”), an Arabic word used in the Quran to refer to the contract of marriage.  The contract can be in writing or can be verbal.  Islamic marriages require acceptance of the groom, the bride and the consent of the custodian, known as the wali, of the bride. The wali of the bride is normally a male relative of the bride, preferably her father. In non-Islamic countries, an Islamic marriage would normally be performed while following local civil law, such as obtaining a marriage license, and ensuring that the Imam is legally allowed to perform marriages in the jurisdiction.

Is an Islamic Marriage Performed in England Valid Without Following English Law?

No, an Islamic marriage performed in England without complying with civil legal formalities will be treated as non existent and not valid.

In H.M. Attorney General v. Akhter and Khan, the couple was married in an Islamic ceremony and intended to follow up with a civil marriage ceremony compliant with English law.  That civil ceremony did not take place.

A person’s marital status is important for them and for the state. The status of marriage creates a variety of rights and obligations. It is that status alone, derived from a valid ceremony of marriage, which creates these specific rights and obligations and not any other form of relationship. It is, therefore, of considerable importance that when parties decide to marry in England and Wales that they, and the state, know whether what they have done creates a marriage which is recognised as legally valid. If they might not have done so, they risk being unable to participate in and benefit from the rights given to a married person.

The answer to the question of whether a person is recognised by the state as being validly married should be capable of being easily ascertained. Certainty as to the existence of a marriage is in the interests of the parties to a ceremony and of the state. Indeed, it could be said that the main purpose of the regulatory framework (summarised below), since it was first established over 250 years ago, has been to make this easily ascertainable and, thereby, to provide certainty.

The Court explained the requirements under English law to have a valid marriage, commenting:

Although the overall system might be described as complex, we would suggest that it is not difficult for parties who want to be legally married to achieve that status.

The appeal addressed whether the Islamic marriage was a legal valid marriage, and, if not, whether it was a “nonqualifying ceremony,” such that it would be considered legally non existent, or the ceremony created a void marriage.  The Court explained the difference:

The most significant practical difference is that a non-marriage creates no separate legal rights, while a decree of nullity [from a void marriage] entitles a party to apply for financial remedy orders under the 1973 Act.

The 1973 Act provides for divorce-like remedies to persons in a void marriage that is subsequently nullified.

There was no dispute that the Islamic ceremony did not create a valid marriage under English law.  The issue on appeal was whether the Islamic ceremony created a void marriage that could be nullified, with effect under the 1973 Act, or was essentially non existent under law.  If the ceremony were held to be legally irrelevant, no decree of nullity could be issued, and no financial remedies under the 1973 Act could be awarded.

The Court held that there can be ceremonies – which the Court referred to as “nonqualifying ceremonies” – that do not create a marriage, or even a void marriage, under English law and so do not entitle a party to a decree of nullity or financial remedies.

The Court then held that the December 1998 Nikah ceremony did not create even a void marriage because it was a non-qualifying ceremony.

We have reached the clear conclusion that the December 1998 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 Act. The ceremony itself would have been permitted under s. 44 if it 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 s. 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.

Does the United States Constitution Require That an Islamic Marriage Performed in the United States, Without Following Local Law, Be Recognized?

No.  An Islamic marriage performed in the United States, in the absence of valid civil formalities, does not require recognition.  In a dispute over whether the City of Baltimore could refuse spousal health care coverage to a purported spouse from an Islamic marriage ceremony, the Fourth Circuit, in Abdus-Shahid v. Mayor of Baltimore, 674 F. App’x 267 (4th Cir. 2017), explained:

Instead, he maintains that the City’s policy is not neutral toward religion because it has the effect of prohibiting Abdus-Shahid from enrolling Jones for insurance coverage despite her being his spouse based on an Islamic marriage ceremony. But that is not the test for neutrality. The Supreme Court has held that a law lacks neutrality if it “target[s] religious beliefs” or if its “object . . . is to infringe upon or restrict practices because of their religious motivation.” The City’s policy is silent as to religion or religious practice and thus is facially neutral.

The City allows individuals of all faiths or of no specific faith to enroll a spouse for coverage upon presenting a civil marriage certificate. In so doing, it simultaneously bars all employees from enrolling an individual as his or her spouse if that employee cannot provide the required documentation, regardless of the reason. See Liberty Univ., Inc. v. Lew, 733 F.3d 72, 99 (4th Cir. 2013) (observing that a neutral law of general applicability will have “no object that infringes upon or restricts practices because of their religious motivation and impose no burden . . . on conduct motivated [only] by religious belief”).

Can an Islamic Marriage Without Civil Formalities Be Valid Under New York Law?

The case of Matter of Farraj, 72 A.D.3d 1082, (2010 App. Div.), holds that New York will recognize an Islamic marriage even if no proper formalities are followed, and even if performed in a location where the marriage would be deemed void. In this estate case, the husband had been a resident of New York, and his wife of New Jersey.  The husband and an Imam travelled from New York to New Jersey for the wedding ceremony.  No marriage license was obtained, and the couple moved to New York where they lived together until the Decedent died.

In holding that the spouse would be treated as a surviving spouse under New York law, the Court reasoned as follows:

Under the law of the State of New Jersey, the failure to obtain a marriage license renders a purported marriage absolutely void.  In New York, * * * a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized. A marriage is solemnized where the parties “solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife” Therefore, if New Jersey law is applied to determine the validity of the marriage between the petitioner and the decedent, the marriage is void. If New York law is applied, the marriage is valid.

The general rule is that the legality of a marriage “is to be determined by the law of the place where it is celebrated.” The Restatement (Second) of Conflict of Laws § 283, however, provides a more flexible approach, whereby “[t]he validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage” (Restatement [Second] of Conflict of Laws § 283 [1]). We look to the Restatement (Second) of Conflict of Laws § 283 for guidance in determining which law should govern the validity of the marriage at issue here.

The petitioner and the decedent had a justified expectation that they were married, since they participated in a formal marriage ceremony in accordance with Islamic law. The only reason the petitioner and the decedent had their marriage ceremony in New Jersey was because, under Islamic law, the marriage ceremony was to be conducted in the residence of the bride’s eldest male relative, which was the petitioner’s brother. In addition, the intended and actual matrimonial domicile was New York, and the petitioner and the decedent held themselves out as a married couple in New York. Therefore, New York has a significant interest in the marriage between the petitioner and the decedent. While New Jersey has an interest in enforcing its marriage requirements, this interest is not particularly strong here, since the petitioner and the decedent left New Jersey immediately after the marriage ceremony, and lived in New York for the entirety of their marriage.

Does Comity Allow Recognition of an Islamic Marriage Performed Outside the Jurisdiction?

Yes, under principles of comity, a common law jurisdiction will normally recognize an Islamic marriage performed in a country that recognizes an Islamic marriage as a valid marriage.

Comity is the principle that one sovereign nation will give legal effect to judgments and rulings of another sovereign nation.  As explained by the United States Supreme Court in the seminal comity case of Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895):

The literal meaning of the word “comity” is “courtesy” — a disposition to accommodate — but the word is seldom employed, in jurisdical discussions, in that sense. [T]he inquiry, therefore, what comity is, is only another mode of inquiring what the law is in respect to the force which the laws, judicial proceedings or other acts done in one State ought to have in another State.

It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The cases of contracts made in a foreign country are familiar examples; and courts of justice have always expounded and executed them, according to the law of the place in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy, or prejudicial to its interests.

Maryland’s highest court, in Port v. Cowan, 426 Md. 435, 44 A.3d 970 (2012), explained the application of comity to marriages performed in another country (citations omitted):

Under the doctrine of comity, long applied in our State, Maryland courts “will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect.”  When considering a foreign marriage specifically, Maryland courts follow the choice-of-law rule of lex loci celebrationis, applying the substantive law of the place where the contract of marriage was formed.

Generally, Maryland courts will honor foreign marriages as long as the marriage was valid in the state where performed.  There are two exceptions to this rule: the foreign marriage may not be “repugnant” to Maryland public policy and may not be prohibited expressly by the General Assembly.  [T]he State is not bound to give effect to marriage laws that are repugnant to its own laws and policy. Marriages that are tolerated in another state but are condemned by the State of Maryland as contrary to its public policy will not be held valid in this State.

Can a Civil Union From a Country With Religious Marriage Only Be Recognized in the United States?

The importance of comity cannot be understated with respect to determining whether a marriage from another country will be recognized in the United States.  There are countries where only religious marriages are recognized – if you cannot comply with the religious requirements to be married, you cannot marry.  At least one such country, Israel, allows those who wish to live as husband and wife to do so in a version of a civil union.  Civil unions thusly serve a critical role in providing some legal legitimacy for couples who, for whatever reason, are unable or unwilling to marry under the religious rules in place in those countries.

Florida recently was faced with the issue of whether an Israeli civil union arrangement, known as a “known in public” relationship, would be treated as a valid marriage in Florida.  In the Cohen v. Shushan case, a Florida appellate court held that such “known in public” unions are not a marriage under Florida law.

[U]nder principles of comity a marriage by citizens of a foreign country, if valid under foreign law, may be treated as valid in Florida * * *  Conversely, if a purported marital relationship in a foreign jurisdiction would be deemed invalid in that jurisdiction, it must be deemed invalid here.