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February 27, 2024

Navigating Unregistered Marriages: A Mono-cultural Perspective with Emphasis on the United Kingdom

Vayuna Gupta

Globalization and migration, undeniably, are encouraging heterogeneous societies. However, there are numerous examples of differential exclusion in these societies. Contemporary legal regulations in the UK are highly influenced by majority Christian religious presuppositions. One such religious presupposition is the requirement for registration of marriages performed in the UK, for validity.

A 2018 survey conducted around the UK documented that 60 percent of Muslim women do not go through a civil marriage ceremony, with a quarter of them unaware of the legal requirement for a civil registration. While the survey focused on Muslims, similar challenges exist amongst other minority religions. The fundamental issue is that nation-states need minorities to look at marriages beyond a religious cultural context deeply personal to them and follow rules as understood by the broader legal culture. The issue is prominently evident in Western nations, primarily due to the prevalence of immigration.

While it may be fairly assumed that the reasons for non-registration lie in naivety on legal procedure, conscious decisions to not register are often taken. Marriages in minority communities frequently follow local customs, and some of these customs do not necessitate the registration of marriage for legal recognition. For instance, Muslim marriages are often private in-house ceremonies and do not take place within a religious institution (mosque). Additionally, marriages are understood differently in different religious communities: for Hindus marriage isa sacrament, for Muslims a contract, and for Christians a public declaration.

Judicial Illustrations on Impact on Minorities

For couples, unregistered marriages might seem to be particularly harmless, but when the marriage falls apart or when a spouse passes away claiming marital rights, proving legitimacy and inheritance gets difficult, impacting women more often than men. In the UK, Sec. 11 of the Matrimonial Causes Act 1973 (substantive irregularities) and Sec. 49 of the Marriage Act, 1949 (procedural irregularities) enlist conditions when a marriage is void. One such condition is parties marrying in disregard of certain requirements for the formation of marriage. Under UK common law, in the case of void marriages courts may extend some benefit of doubt to the couple, treating them as if they were in a valid marriage and providing marital benefits, despite the marriage lacking legal recognition. In contrast, non-marriages are those that are so far away from compliance that they receive no acknowledgment under UK law, resulting in no spousal benefits being granted, essentially treating the situation as if no marriage had occurred.

There are multiple instances when judicial bodies have refused to acknowledge marriages as valid English marriage since, they were performed under pluralistic religions and associated customs. While some couples have been fortunate enough to have their marriages deemed void, others have not been granted this privilege.

In the case of A.M v. A.M, 'cohabitation' and 'reputation' were deemed significant factors in establishing the common law “presumption of marriage.” When the wife of a Sikh man sought benefits, the validity of their Sikh wedding was called into question. Despite the irregular nature of the marriage, the court applied the "presumption of marriage" doctrine, citing the extended period of cohabitation as a basis. Conversely, an Islamic marriage was categorized as a non-marriage with the court asserting that “A Muslim marriage ceremony did not give the couple the same rights that a ceremony complying with English law would.” It further added that the couple had not cohabited for a sufficient duration to raise a presumption of marriage. The court’s judgment had implications on the legitimacy of the child and its father’s right to obtain custody of the child.

In Gandhi v. Patel, a marriage undertaken through a Hindu ceremony was deemed a non-marriage because lacking registration it failed to meet the criteria for a valid English marriage, compromising the wife’s inheritance rights. Similarly, in El Gamal v. Al Maktoum, the court noted that the petitioner wife had lived in London for five years – precisely long enough to know that a nikah (wedding) within their apartment without registration would not be valid under English law, declaring it to be a non-marriage. The court noted that an imam, two witnesses, and an intention to marry were insufficient for the marriage to be a valid English wedding.

ECHR Struggles Parallel Those of UK Courts

The question of unregistered marriages has come up to the European Courts of Human Rights [hereinafter ‘ECHR’] as well in the last few years. The ECHR judgments, regrettably, seem to prioritize the factual acknowledgment of marriages by state authorities rather than addressing the potential violation of human rights for spouses facing challenges in obtaining recognition for their partnerships.

In 2009, the case of Munoz Diaz v. Spain the marriage performed as per Roma traditions had not been registered by the spouses but was upheld by ECHR. While the court did state that the applicant entered the marriage in good faith as per her social and cultural situation and forcing the applicant to engage in a civil marriage apart from a Roma marriage will be an infringement of her religious freedom, its decision rested primarily on the fact that the Spanish state had provided her with married couple benefits, effectively legitimizing the marriage. The judgment relied heavily on the sequence of factual events that led the state officials to accept the marriage previously on multiple occasions. Perhaps this was the reason for ECHR’s regressive position in the 2010 case discussed below. However, the court noted that there is a growing need amongst European states to preserve the cultural diversity of immigrants.

In 2010, in the case of Serifie Yigit v. Turkey the ECHR grappled with a comparable issue of discrimination under A. 14 of the European Convention on Human Rights. The applicant contended the denial of a survivor’s pension despite having lived with her partner for 26 years after a religious marriage ceremony, until his death. Turkey's national social security pension law only provided spousal benefits to couples married according to the civil code. It is important to point out that the applicant herein did not belong to a minority community in Turkey. The ECHR noted that, unlike Munoz Diaz v. Spain, no family record book was issued to the couple at the conclusion of a civil marriage. Furthermore, the applicant was aware that the marriage she had entered did not meet the criteria for a valid civil marriage. ECHR went on to clarify that discrimination under A. 14 of the Convention entails differential treatment without any objective and reasonable justification. In this instance, differential treatment was justified on grounds of public order and rights and freedom of those who had undergone a civil marriage. The court's justification of discrimination, purportedly to protect the rights of others, stands as an ironic contradiction when considering the denial of the widow's claim.

Unravelling the Challenges in Recognition of Minority Religious Unions

The question that begs discussion is - if the majority are at liberty to adhere to their traditions, why are minority groups not afforded the same privilege?

Acculturation expectations

Nation-states often expect minorities, especially immigrants, to abandon parts of their culture and assimilate to the existing predominant culture. Implicit in this expectation, sometimes, is a bias that positions the majority culture as superior. The objective then is to homogenize society through acculturation of minorities. In such scenarios, trans-jurisdictional marriages are seen as a liability to the cultural integrity and homogeneity of society. As Prof. Shah notes – “The underlying structural deficit can partly be put down to emphasis in European legal cultures on ‘sameness’ and this undermines the valuing of and attention to ‘differences’.”

Mismatched Minority Expectations

Professor Menski describes the assimilation of minority groups and migrants into a new community in four stages: Stage I: Unawareness of the legal requirements leading to non-compliance; Stage II: Some individuals recognize the importance of registering marriages but retain their customs and traditions, resulting in the need for two separate processes; Stage III: Ethnic minorities abandon their cultural norms completely to follow domestic law. In reality, this is not a common occurrence, couples often times do engage in an ethnic marriage celebration, albeit minor, and there is rarely only a secular registration. Stage IV: Refusal to follow domestic legal requirements despite awareness.

Limited Cultural Training for Legal Professionals

There is a notable deficiency in knowledge and training among legal professionals on minority cultures, traditions, and laws. Judges typically invoke the principle of conflict of law only for marital unions that have been performed abroad to determine their legitimacy under foreign law, not to assess the legality of marriages performed within their home state. Furthermore, one well known exception to conflict of law is protection of domestic public policy to safeguard public interest. Judges have considerable discretion under this public policy exception, allowing them the authority to refrain from recognizing pluralistic religious unions.

International Law Violations

The right to marriage and the establishment of family is a fundamental human right in international law. Article 16 of the Universal Declaration of Human Rights (UDHR) grants everyone a right to marry and acknowledges all associated rights stemming from such marriage. It also obligates the state to grant protection to families. Article 23 of the International Covenant on Civil and Political Rights (ICCPR) mentions the right to found a marriage and Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the broadest possible protection to be given to the family. All three covenants also acknowledge the right to individual liberty. Moreover, within international law jurisprudence, minorities are not to be discriminated against nor denied the right to enjoy their own culture and practice their religion. The practice of non-recognition of religious marriages is a clear violation of international human rights standards by nation-states, including the UK.

Recommendations

Western legal reforms on marriage, divorce, and adoption are premised on significant state involvement. Marriage laws in England are 75 years old and reflect Christian ideals and traditions. However some non-western countries tend to follow a non-state method of marriage law. Many Asian and African countries are pluralistic and have distinctive personal laws for every community. In these countries their traditions, culture, and legal, religious, and moral beliefs are held in high esteem.

There is a need for pluralistic navigation in mono-cultural societies for good governance. Cultural pluralism advocates for equal status to minority laws, traditions, and values, as that of the majority. Personal laws must be regarded as a matter of good conscience and public interest rather than rigid interpretation of the law. In UK, the underlying principle appears to be the preservation of the structure and foundation of the legal order by embracing diverse cultures, religions, and values, as long as they do not contravene majority legal norms.

I recognize that states often require registration of marriages for state-sponsored benefits. Nevertheless, the absence of marriage registration should not automatically deem it invalid unless protected by a presumption safeguarding the marriage. I contend that only marriages solemnized within home-states without meeting fundamental requirements such as those of capacity, free consent, fraud prevention and alike should be declared void. Furthermore, legal professionals should undergo training in cultural competence related to personal law. This will ensure that the legislature and judiciary view minority customs and consequent privileges as a matter of human rights protection, rather than a breach of societal public policy determined by the majority. This approach earns the unparalleled long-term benefit of making society a safe space for minority communities.

Conclusion

In summary, the complex interaction of globalization, migration, and the legal systems entrenched in majority traditions have presented difficulties for minority communities, particularly in relation to the compulsory registration of marriages. The issue of acknowledging religious unions among minorities underscores challenges related to acculturation expectations, minority viewpoints, and the insufficient cultural training of legal professionals. The failure to recognize religious marriages by nation-states, including the UK, constitutes a clear infringement of international human rights standards. Considering this significant concern, it is crucial to promptly address this issue to foster a legal landscape that is more equitable and inclusive.

    Vayuna Gupta

    ABA 2023-2024 Diversity Fellow

    Vayuna Gupta, based in New York City, is an attorney with a background in transnational work and collaboration with individuals from diverse cultures. She is dedicated to leveraging her legal expertise to contribute to the creation of a more inclusive society by placing people at its core. Vayuna is also an ABA 2023-2024 Diversity Fellow.

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