How can I protect my spouse by writing an Islamic Will?

Under English law, if you are married by nikkah ceremony only, this will not be recognised as a legal marriage unless it was undertaken in a country which practises Islamic Law or you had a civil marriage at the same time.

What does this mean for my spouse?

Under English law, if your marriage is not recognised and your spouse (by religious marriage) dies, it can come as an unpleasant surprise to discover that you may not inherit anything under English Law in the absence of a will. It is only when this happens that many people become aware that there is no such thing in law as a 'common law' spouse, so it is important that Muslims married by nikkah ceremony only, undertaken in a non-Muslim country, give thought to protecting their position by the means currently available to them.

Without a will, a person's estate passes (with a rather complex formula under English law regarding its division depending on the size of the estate) to the relatives of the deceased. This will normally leave the deceased's partner with nothing.

However, English law does allow a claim for provision to be made from the estate of the deceased by dependents if they are persons for whom the intestate person might reasonably have been expected to make provision.

A surviving 'cohabitee' can make a claim if the deceased died intestate or failed to provide for them in the will if:

• they were maintained by the deceased in whole or in part immediately before the death of the deceased; or
• for two years prior to the death of the deceased they lived in the same household as the deceased as if they were the husband, wife or civil partner of the deceased.

In such cases, the court may be requested to make 'reasonable provision' for the applicant. There are a series of guidelines which have been set to ensure that the provision made is fair bearing in mind the size of the estate and the circumstances of those with an interest in it.

The court's powers to divide the estate are considerable and can include making orders for periodical payments or lump sums or the transfer of specific property to the claimant.

However, any application under the rules of intestacy or any claim as a dependant to the court will not result with your spouse and other relatives inheriting the correct share that they are entitled to under the Islamic Inheritance rules. The court will not have regard to our obligations as Muslims as stated in the Qur'an.

Therefore, in order to ensure that your spouse and other relatives inherit their correct share, we strongly recommend that you write an Islamic Will and not leave your wealth in the hands of English law.

For further advice and to discuss your options, please contact our Solicitor, Amina Sayed-Hossen.

Submitted on May-11-2009

Written by Amina Sayed Hossen

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.