The issue has cropped up again recently, this time in the English courts in the high-profile case of Akhter v Khan.
In this case, Mrs Akhter raised a petition for divorce from her husband Mr Khan on 4th November 2016, averring that they had been married in 1998. Mr Khan defended the divorce and, in support of same, cited the fact that the parties had merely entered into a Nikah, which he argued should be viewed as a blessing and not a marriage recognised in English law.
The issue for the court was whether the parties were validly married by operation of a presumption of marriage or, if not, whether the marriage is a void marriage and capable of being subject to decree of nullity in terms of section 11 of the Matrimonial Causes Act 1973.
The ratio of the decision was not that the Islamic Nikah between the parties could be accepted as a valid marriage, even in terms of the doctrine of presumption of marriage in accordance with English law. Rather, the court held that the marriage was a void marriage on a creative interpretation of Section 11(a)(iii) of the Matrimonial Causes Act 1973.
The judge decided that the marriage was one entered into between the parties “in disregard of certain legal requirements as to the formation of marriage.”
The consequence of the decision was that decree of nullity could follow which would allow Mrs Ahkter to make claims for financial provision in the same manner that a married couple going through a divorce could. The court was, however, clear in its decision that it was a fact specific judgement.
In Scotland, the wording of the relevant statutory provisions on the grounds on which a marriage can be considered void is rather different. Section 20A of the Marriage (Scotland) Act 1977 gives two situations where a marriage could be considered void; the first is where “at the time of the marriage ceremony a party to the marriage who was capable of consenting to the marriage purported to give consent but did so by reason only of duress or error” and secondly if at the time of the marriage ceremony a party to the marriage was incapable of either understanding the nature of marriage or consenting to marriage.
The legislation defines the term “error” which is either an error as to the nature of the ceremony or mistaken belief that the other party at the ceremony with whom that person purported to enter into a marriage was that person whom they had agreed to marry. As in England and Wales, where a marriage is deemed void, an interested party can seek a declarator of nullity. If this is obtained, the court has the same powers to award financial provision for the parties as it does in actions of divorce.
This, therefore, begs the question as to whether a Scottish court, if faced with a similar case, would be able to effect a creative interpretation of the legislation so as to apply it to the circumstances as the English court in Akhter v Khan did. Could a Scottish court hold that a party to a marriage “purported to give consent only by reason of error… as to the nature of the ceremony” where they entered into a Nikah which was not combined with a civil ceremony in the mistaken belief that it satisfied the requirements of Scots law to be legally recognised as a marriage?
The answer is not entirely clear-cut. The relevant English provisions that allow a marriage to be held void where the parties entered into same “in disregard of certain legal requirements as to the formation of marriage” appears somewhat wider in scope and interpretation to the situation at hand. It is suggested that we cannot safely assume that a Scottish court would, necessarily, follow the English approach. A “test case” is necessary to give clarity on how the Scottish legislative provisions will be interpreted to the issue by a Scottish Court.