Introduction

This chapter makes the case for moving towards a minimalistic law of marriage. It begins by noting the problems caused by the complexity of the current law, notably unregistered Muslim ‘non-qualifying ceremonies’ of marriages (nikahs), which should be a key focus of policy makers. While Sharia Councils are often the focus of media and political attention, they are merely a symptom of the inadequacies of English law and the state's absence from this area of social activity. It then proceeds to discuss the first instance decision in the case of Akhter v Khan, which unsettled the law's consistency as regards unrecognized Muslim marriages, arguing that the decision was essentially a kludge which created additional confusion and was a poor substitute for legislative intervention. Taking simplicity as its lodestar, and cross-partisan contempt for bureaucracy as its compass (Ferguson, 2014; Graeber, 2015), this chapter provides a brief introduction to ‘nudge theory’ to sketch out a short plea for a minimalistic law of marriage. Nudge theory emphasizes the need for simplicity, convenience and affordability when it comes to the design of effective law and policy.

Informed by these objectives, a survey of potential options for reform follows, including: assorted unviable solutions; cohabitation law reform; the introduction of compulsory civil registration under the existing regulatory system; and modernising the formalities which govern the entry into legally recognized relationships. The pros, cons and likely obstacles to each alternative will be assessed and then the case made for marriage formalities reform as being the best way forward. The chapter concludes with a prognosis of the prospects for reform, an acknowledgement of the complex social context of Muslim marriages and a final plea for minimalistic marriage laws.

English law vs unrecognized Muslim marriages

‘An ill-assorted collection of poorly-matching parts, forming a distressing whole.’ One would be hard-pressed to find a better description of contemporary English marriage law than the Oxford English Dictionary's definition of a kludge. The current regulatory system has created a situation both ‘morally repugnant and economically nonsensical’ (Probert and Saleem, 2018: 25), being especially inhospitable towards Muslims, whose marriages go unrecognized on a massive scale. That an overhaul is overdue is uncontroversial; the real challenge is in making a good selection from a menu of potential reforms.