Introduction

While in recent times, religious-only non-legally recognized Muslim marriages have attracted attention (Law Commission, 2015; Casey 2016; Home Office, 2018), there has been little indepth engagement with polygynous religious-only marriages. Polygyny is the form of marriage where one man is married to multiple women at the same time (Law Commission, 1971: para 2). It is a recognized form of marriage in many societies worldwide and is considered valid in Islamic law, although some Muslim majority states such as Tunisia have proscribed it. It has been suggested by organizations including the ‘Register our Marriage Campaign’ that Muslim nikah ceremonies should be legally recognized, but this assumes that legal recognition benefits all women equally. In fact, it would limit the autonomy of women who voluntarily opt to live in a religious-only monogamous or polygynous marriage because they see greater benefit in remaining outside of legal recognition. The question arises of how to protect those who are vulnerable, while enabling others to enter religious marriages outside of the law.

The solution proposed in this chapter to deal with the varying interests of different women in religious-only marriages is first, that the nikah ceremony is legally recognized in principle as a ceremony of marriage. This should be accompanied by the option for both husband and wife to avoid legal recognition through a mutual opt-out process at the point of the religious marriage. Further, if the opt-out is triggered at the time of the ceremony and the religious-only marriage later breaks down, under certain circumstances, it should also be possible to obtain retrospective legal recognition if desired or appropriate in the interests of protecting vulnerable parties.

This proposed legal solution would first create a way for couples to be legally married without needing to undergo another ceremony either before, after, or at the same time as the nikah ceremony. It would lead to the nikah being a legally recognized form of marriage (although this chapter is not focussed on the form of such recognition).