Nullity when there is a voidable marriage abroadSummary:
- An unregistered/invalid Nikah marriage conducted abroad is voidable and can be dissolved by nullity (leading to a finance claim).
- An unregistered Nikah marriage conducted in the UK is a non-marriage and cannot be dissolved by nullity (and cannot lead to a finance claim).
|Petitioner/Applicant||Wife/Mrs K aged 61|
|Respondent||Husband/Mr K aged 74|
|Respondent’s 1st Wife||Mrs B|
|Petitioner’s 1st Husband||Mr Z|
|Petitioner’s Counsel||Mr Lewis|
|Respondent’s Counsel||Mr Nigar|
|Witness to marriage||Hafiz Tariq Mehmood|
|Witness to marriage||Basharat Mehmood|
|Expert||Professor Werner Menski|
|1964||Respondent (R) marries first wife Mrs B|
|1972||Petitioner (P) marries first husband Mr Z in Pakistan|
|1994||P obtains Talaq divorce in Pakistan from Mr Z; P is habitually resident in UK|
|18/10/1999||Islamic Nikah Marriage ceremony between P and R at Shia Mosque in UK|
|00/12/1999||P’s Mother raises concerns as to status of the Nikah marriage and P stops sexual relationship with R|
|27/09/2002||P applies for Khula divorce from Mr Z|
|07/01/2003||P gets Change of Name deed to call herself Mrs K|
|15/04/2003||Khula divorce obtained by P|
|15/08/2003||Telephone proxy Nikah ceremony between P and R with Imam in Pakistan|
|28/08/2003||Formal Nikah ceremony at R’s property (WH) in Pakistan; no written consent obtained from Mrs B to a polygamous marriage|
|17/04/2014||R’s Divorce for 1999 marriage|
|2015||Mrs B dies and R is free to remarry|
The issue before the Court in K v K  EWHC 3380 (Fam)
was whether nullity should be granted for a voidable marriage conducted abroad between British residents.
The parties had come to agree that they were not lawfully married by the 1999 UK Nikah
; the petitioner conceded that she no longer sought a divorce; however nullity was important for her, as if that were granted, she would be free to pursue a financial remedy.
There was a complex factual matrix. The respondent and the petitioner were aged 74 and 61 respectively.
In 1964, the respondent was married to a Mrs B; it was held that the marriage probably subsisted until her death in 2015.
In 1972 the petitioner was married to a Mr Z. That marriage was terminated by Talaq
divorce by Mr Z in Pakistan in 1994, by which time the petitioner was already habitually resident in England; it was asserted the divorce was not obtained by due process and not accepted in English law.
In 1999, the parties entered into a Nikah
Islamic marriage ceremony at a Shia mosque in Tooting, South London. At the time, the Respondent was still married to Mrs B. The Respondent asserted that the Petitioner knew of this; the Petitioner said that she would have never contemplated a polygamous marriage and that she was told he was divorced. Both parties agreed that the 1999 Nikah
marriage was not recognisable as a valid marriage as it was never registered under English law.
The parties were Sunni Muslim, however the Nikah
was a Shia ceremony. When her mother raised serious concerns as to whether the 1999 ceremony was valid, the Petitioner stopped having sexual relations with the respondent.
On 7 January 2003, the petitioner changed her name to Mrs K, asserting that this was a step taken by her to regularise her marital status.
On 15 April 2003, the Petitioner was granted a Khula
divorce from Mr Z (‘no fault’ Islamic divorce requested by the wife).
On 15 August 2003, the Petitioner claimed that a Nikah
proxy ceremony took place on the telephone between the parties (both in the UK), officiated by an Imam in Pakistan in the presence of 2 male witnesses; the petitioner believed this was a valid marriage.
On 28 August 2003, the petitioner alleged there was a formal marriage ceremony at a property ‘WH’ in Pakistan owned by the respondent. At that ceremony, they were given the marriage deed. The Court was provided with both the original Urdu marriage deed and an English translation dated 22 January 2008. The Judge was content that the translation was not done for the purposes of these proceedings and had no reason to believe that it was anything other than accurate.
That marriage deed recorded that the marriage was celebrated on 15 August 2003 (the date of the alleged proxy marriage between the parties in London and the Imam in Pakistan). This was the marriage date that she now sought to annul.