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Court of Appeal clarifies the law on marriage formalities (Akhter v Khan)

Date:5 MAR 2020
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Family analysis: Siddique Patel, solicitor at Shoosmiths, discusses the decision of the Court of Appeal overturning that of Williams J when he ruled that an Islamic Nikah ceremony could be classed as a void marriage giving rise to financial remedies. The Court of Appeal unanimously found that no marriage ceremony took place in respect of which a decree of nullity could be granted. In coming to its decision, the Court of Appeal replaced the term ‘non-marriage’ usually given to these types of ceremonies, with a seemingly more helpful term, that of it being a ‘non-qualifying ceremony’ which refers to a marriage ceremony falling outside the scope of the Marriage Act 1949 (MA 1949).

Akhter v Khan and another [2020] EWCA Civ 122, [2020] All ER (D) 88 (Feb)

What are the practical implications of this case?

The Court of Appeal’s decision reverses the surprising decision by Williams J at first instance (Akhter v Khan [2018] EWFC 54) and certainly appears to be more in line with the law and public policy grounds. However, the need for urgent reform of the law in relation to unregistered faith marriages is more important than ever. This case touches upon important issues. The point made by the Court of Appeal at para [123] of the judgment (ie, had this ceremony been performed in a building registered for the solemnisation of marriages, it would have been a qualifying ceremony and therefore a valid marriage) highlights the low awareness of existing legislation which allows buildings (including religious places of worship) to register their premises to perform lawful marriages. Clearly, if more people took advantage of these provisions, more faith marriages would be classed as valid marriages which would in turn, mean more divorcing couples having access to financial remedies upon divorce. Unfortunately, this is not the case.

The judgment mentions the work by the Law Commission looking at the law governing how and where couples can marry. There is now a strong argument to say that the work of the Law Commission, while certainly needed, is constrained by its terms of reference. Vulnerable people (usually women) continue to learn too late that they do not have legal protection, so in the short term, there should be a change to update the current legislation, specifically the Marriage Act 1949, to make provision for marriages of all faiths to be brought under the definition of a valid marriage as defined by law. This will give a more immediate access to financial remedies to more people in society.

Also required is increased awareness of the impact of unregistered faith marriages at all levels of society. It is, however, still disappointing to know that even though, for example, the Law Society supports reform of the law so that marriages of all faiths are equal before the law and the family unit protected, there are still people who do not seem to accept that there is a problem. For them, there can be no bigger eye-opener than the case of Akhter v Khan.

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What was the background?

By way of brief summary (with the parties referred to as ‘husband’ and ‘wife’ for convenience), the wife issued a petition for divorce from the husband on 4 November 2016 claiming they had been married in 1998. The husband defended the divorce on the basis that the parties had not entered a valid marriage according to English law but had instead undergone an Islamic Nikah which should be regarded as a blessing not a marriage. A very strong argument by the wife on human rights grounds prompted Williams J to consider the European Convention on Human Rights (ECHR) and consider the best interests of the children, who would potentially be affected if a marriage was declared void and the resultant financial remedies not able to be pursued.

After considering submissions, Williams J originally held that the couple intended to 'embark on a process of marriage' which was to include the civil ceremony, and that the failure to complete this 'process' was entirely down to the husband’s refusal after the Nikah to arrange the civil marriage ceremony. Other considerations in the original ruling included the fact that the marriage was a long one (20 years), during which the wife consistently requested a civil marriage and that there were four children involved.

He went on to say that his decision was informed by 'fundamental rights arguments' and concluded that within the scope of section 11 of the Matrimonial Causes Act 1973 (MCA 1973), this was a marriage entered into in disregard of certain requirements as to the formation of marriage. This declaration of a void marriage gave rise to the financial remedies normally enjoyed by divorcing couples who have had a valid marriage. It will remain noted that this initial decision did not open the floodgates to all Islamic Nikah ceremonies being considered void marriages.

What did the court decide?

After this initial decision, the parties reached an agreed financial settlement and did not take any active part in the appeal brought by the Attorney General. The Court of Appeal found that the Nikah conducted in this case did not create a void marriage because it was a ‘non-qualifying ceremony’ (helpfully, the term ‘non-marriage’ has been consigned to history). The Court of Appeal judgment seeks to focus more on the ceremony and after coining the term ‘non-qualifying ceremony’ (para [64]), concluded that ‘non-qualifying ceremonies’ can still be ‘proper and sincere’ ceremonies, but do not create a marriage, or even a void marriage, within the scope of MA 1949 or MCA 1973. Consequently, the parties were not entitled to a decree of nullity (para [65]).

The Court of Appeal did not accept the ECHR argument either. It found that while the petitioner’s Article 8 right to respect to family life was undoubtedly engaged, the failure of the state to recognise the Nikah as a legal marriage was not in breach of those rights. The fact that at the time of the Nikah ceremony both parties knew that in order to contract a legal marriage they had to go through a civil ceremony, and intended to do so, did not permit reliance on Article 8 as a means to allow a flexible interpretation of MCA 1973, s 11 (paras [106–107]). It held that the December 1998 ceremony did not create a void marriage because it was a ‘non-qualifying ceremony’ so the parties were not marrying under the provisions of MA 1949, Pt II.

The ceremony itself would have been permitted under MA 1949, s 44 if it had been performed in a building registered for the solemnisation of marriages, but it was not. In addition, there was no notice given to the superintendent registrar, no certificate issued and no registrar or authorised person was present at the ceremony (para [123]). The judgment records there was no support for the legal effect of the ceremony to fluctuate depending on future events, such as the parties having children, in either domestic legislation or in the ECHR (para [124]). It also rejected the submissions that by taking a holistic approach, the legal effect of the December 1998 ceremony can be changed because the parties intended to undertake a civil ceremony which would have created a valid marriage (para [125]).