For many individuals, amongst the many rules which make applying for a spouse visa complex and stressful, is the requirement that a spouse’s marriage is legally recognised for UK immigration purposes.
The recent case of Attorney General v Akhter confirmed that the religious ceremony to marry known as ‘Nikah’ is not a valid marriage, where it takes place in the UK.
But this certainly does not mean that a religious marriage is never recognised in the UK. Here we will look at this recent court case and when religious weddings, and divorces, are recognised in the UK.
The Ruling
Attorney General v Akhter [2020]
‘Nikah’ is an Islamic ceremony forming a religious marriage between a man and a woman. The Court of Appeal ruled in this landmark case that a religious Nikah ceremony held in the UK is legally a “non-marriage” under English law.
These ceremonies therefore have no legal effect if the ceremony takes place in the UK without later being legally registered.
Religious Marriage outside of the UK
However, the same does not apply to those who married religiously overseas, where different rules may apply.
Crucially, for a religious overseas marriage to be recognised for UK spouse visa purposes as a legal marriage, then:
The marriage ceremony must be recognised as a valid form of marriage by the law of the country where the ceremony takes place.
Both parties to the marriage must have capacity to marry the other party under the law of the place where they are domiciled.
Any previous marriage of either party must have been validly terminated in the eyes of English law. Again, for overseas divorces, this can get complicated and so we will look at this in more detail below.
Common complications with overseas marriages being recognised by the UK
Polygamous Marriages
In many countries, religious marriages performed according to Muslim rites are marriages which have the potential to be polygamous marriages.
These allow the male partner to have more than one wife. Such marriages will only be recognised as ‘valid’ marriages by the UK if at the time of the marriage, neither party was domiciled in the UK and the polygamous marriage was valid by the law of the country where the ceremony took place.
If these criteria are met, your polygamous marriage overseas will be recognised in the UK.
This does not mean that you can apply for a spouse visa for more than one wife. The UK Government seek to prevent polygamous households from forming in the UK and therefore only one spouse is normally allowed to obtain a spouse visa under UK immigration rules.
Overseas Divorces
If you have been married before, and you have since remarried, you must ensure that you are legally divorced before entering your second marriage. This ensures your second marriage is ‘valid’ through the eyes of English law.
As you will see below, this is one of the conditions to obtain a spouse visa. And in our experience this issue can often catch people out and mean their subsequent marriage is not valid.
You may now be wondering whether the UK would recognise your previous divorce. As a general rule, any overseas divorce taking place after the 4th April 1988 is recognised by the UK if it is an effective divorce under the law of the country in which it is obtained.
Talaq divorce
However, it gets a bit more complicated when it comes to the Talaq divorce. Under traditional Islamic law, a Talaq divorce is deemed to have taken place when the husband pronounces three times “I divorce thee”. This pronouncement ends the marriage instantly.
There are new rules placed on this type of religious divorce in all parts of Bangladesh and Pakistan (except Azad Kashmir) by the Muslim Family Law Ordinance 1961.
In order for a Talaq divorce taking place in one of the aforementioned countries to be recognised as a divorce in the UK, a ‘full’ Talaq divorce must have taken place, and the following criteria must have been met:
- Either the husband or wife must be Bangladeshi/ Pakistani;
- The husband must have given notice in writing of the pronouncement of a Talaq divorce to the Chairman of the Union Council of the Ward;
- The husband must have also given a copy of this notice to his wife;
- At the end of 90 days (or at the end of the wife’s pregnancy if she is pregnant at this time) the divorce will take effect; and
- Either the husband or wife must be habitually resident or domiciled in Bangladesh/ Pakistan.
Therefore, only Talaq divorces which fulfil the above criteria, as set out by the Muslim Family Law Ordinance will be recognised by the UK. Otherwise you will still be considered married by UK immigration.
The only exception to this is in Azad Kashmir. Here the ‘bare Talaq’ can still be recognised, obtained by the traditional method mentioned above.
This should therefore clarify whether you have validly obtained a divorce to your first marriage: an essential first step before entering your second marriage.
Final thoughts
Hopefully this has provided you with clarity on the validity of your current marital status for UK immigration purposes in preparation for your spouse visa application.
For help on how to make a successful spouse visa application, read Louis 7 step application guide here. Or if you would like more information on the above topics or further assistance with your application, then our specialist Immigration solicitors can help you – contact us today
