In Akhter v Khan  EWFC 54, the couple had had a nikah ceremony in 1998 but had not registered the marriage under civil law. They had four children together. The petitioner, Nasreen Akhter, sought a divorce from Mohammed Shabaz Khan in November 2016. The husband (so called for convenience) defended the divorce on the basis that the parties had not entered a marriage valid according to English law; the wife (ditto) argued that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage. In the alternative, she averred that the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973 . There were two central questions: whether the parties were to be treated as a validly married under English law by operation of a presumption of marriage and, if not, was the marriage a void marriage susceptible to a decree of nullity . Williams J stressed that:
“What this case is not about … is whether an Islamic marriage ceremony … should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely, whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple .
The complication arises in part from the fact that in a series of cases since about 2001, judges have interpreted the provisions of the Marriage Act 1949 and the Matrimonial Causes Act 1973 such that as the law currently stands a marriage can not only be valid and void but also what has become termed a non-marriage” .
The distinction is this. If the marriage was a valid one, the couple would have acquired the legal status of husband and wife and if it failed, they might separate and if necessary apply to the court for judicial separation or divorce and for financial orders to deal with housing and maintenance and splitting of other assets. If the parties had failed to comply with the necessary laws, the marriage might be annulled as being void or voidable – but while the marriage subsisted, they would have the same benefits as a married couple and if the court were to annul the marriage, the parties would be able to divide their assets or deal with maintenance . In the case of a non-marriage, however, no such remedy would be available: the parties could not divorce nor have the marriage annulled because they had never been married in the first place .
So what was it: a valid marriage, a void marriage or a non-marriage? [Warning: what follows is a very superficial analysis written by a total non-expert.]
The wife argued that there was a presumption of marriage arising from the proper formality of a ceremony followed by cohabitation, that s.11 of the Matrimonial Causes Act 1973, on its plain language, provided for nullity where certain requirements of the Marriage Act 1949 were not complied with and that the term “non-marriage” should thus be reserved to situations which properly warranted that description – “such as actors acting a scene or parties playing at getting married” [15c]. She also contended that the law of non-marriage was in breach of Articles 6, 8 and 14 and A1P1 ECHR because the current approach to the law of non-marriage precluded a Muslim woman from making a financial claim against a man with whom she had had a nikah marriage [15f].
The husband argued that, on the evidence, the parties had clearly chosen to marry religiously, had been advised of the need for a civil ceremony in order to obtain a legally valid marriage and had decided not to do so. S.11 of the Matrimonial Causes Act 1973 was clear; and the religious ceremony had been a wholesale failure to make any attempt at compliance with the requirements of the Marriage Act 1949. The religious ceremony was therefore a non-marriage rather than a void marriage. Moreover, Article 12 ECHR (right to marry) did not confer or guarantee a right to divorce. Finally, it would be unjust retrospectively to impose on the husband a remedy provided by law which neither party had had any intention of creating at the time of the religious ceremony – and that the husband’s right to choose the form of marriage and its consequences were as valid for Article 8 purposes as the wife’s .
For the Attorney General, as intervener, it was submitted that s.11(a)(iii) of the Matrimonial Causes Act 1973 clearly required that the “certain requirements” which were not complied with were those identified in s.25 or s.49 of the Marriage Act 1949 and there was a plain linkage between the two. The High Court was not under any current obligation to interpret the law in the way that the ecclesiastical courts had done prior to 1857 and the relevant sections of the earlier statutes were not replicated in the Senior Courts Act 1981. There was no vestigial ecclesiastical court or inherent High Court jurisdiction to grant degrees of nullity – and the ecclesiastical court had only dealt with Christian marriages in any event. Nor did human rights or fundamental rights considerations affect either the interpretation of s.11 or its application . The Attorney accepted that Article 3 of the UN Convention on the Rights of the Child (UNCRC) informed Article 8 ECHR but did not accept that the children’s best interests were engaged at this stage – and even if they were, they were addressed by the remedy available to the wife under Schedule 1 to the Children Act 1989. Finally, s.11 of the Matrimonial Causes Act 1973 applied equally to adults without children or without minor children as to those with children: and its interpretation could not be dictated by those cases where minor children were involved.
After examining the history of the presumption of marriage in English law, Williams J concluded that it did not apply to the facts of the present case . As to the human rights issue, the UNCRC 1990 was ratified by the UK in 1991 and came into effect on in January 1992; and though it had not been incorporated by statute into domestic law and did not, as such, form part of the law of England and Wales, subsequent decisions of the Supreme Court had made it clear that the rights set out in the UNCRC were binding and had to be complied with in domestic decision-making . Consequently:
“It seems to me that the decision that I reach in this case is properly described as an action concerning children both because a direct consequence will be the availability or non-availability of a financial remedy of quite a different character to that which is available under the Children Act 1989. I also consider that it is an action concerning the children because it involves a determination of whether the relationship of their mother and father is to be described and categorised as a non-marriage or a void marriage. A marriage which is ended by a decree of nullity for non-compliance with the formalities of legal marriage is in my view a matter which concerns the children” .
As to the Article 8 point, he did not believe there was a distinction in Article 8 terms between those who cohabit choosing not to marry and those who knowingly undertake a religious-only ceremony and opt not to undertake the additional formalities necessary to effect a valid legal marriage: however:
“I do consider that in respect of those who sought to effect or intended to effect a legal marriage that Article 8 supports an approach to interpretation and application which [favours] the finding of a decree of a void marriage rather than a wholly invalid marriage” .
As to the property point under A1P1, cohabitees, however long they had lived together and however many children they had, did not acquire any rights of property merely by cohabiting. The unascertained right to a share of the matrimonial property depended on establishing that there was either a valid or a void marriage, and there was no potential property right infringed until that was established. A1P1 was therefore not of assistance . Nor did Article 16 of CEDAW add anything to Article 14 ECHR: “At its simplest level, the law in relation to invalid marriages applies equally to men and women” .
“ 92. The starting point in relation to the interpretation and application of section 11 of the Matrimonial Causes Act 1973 must therefore be the net result of the series of cases considered by Moylan J (as he then was) in MA v JA  EWHC 2219 (Fam).
a. Unless a marriage purports to be of the kind contemplated by the marriage acts it will not be within section 11.
b. What brings a ceremony within the scope of the act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis (see for instance K v K  EWHC 3380, 2 FLR 1055).
c. The court should take account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage.
93. However, I think that approach must also be supplemented as a result of my conclusions in relation to some of the human rights arguments outlined above. That requires consideration of
a. Article 8 supports an approach to interpretation and application which the finding of a decree of a void marriage rather than a wholly invalid marriage. This seems to me to be consistent in any event with the historic approach of the courts as shown in the presumptions but also has clearly emerges from the authorities over the centuries which supports a finding of marriage.
b. The court should where it is appropriate be able to take into account the best interests of children as a primary consideration and weight with other article 8 rights of the parties.
c. Article 12 ECHR on a horizontal effect basis together with general principles of fairness or equitable principles support the proposition that if the parties had agreed to or it was their joint understanding that they would engage in a process which would ultimately lead to a legally valid marriage means that should be taken into account in determining whether took place falls within or without the parameters of section 11.
d. The competing Article 8 rights of the parties can be considered which in the case of one party may be in favour of the marriage being held to be invalid and in respect of the other being held to be void.
94. Incorporating those considerations into the starting point leads me to conclude that the approach should be somewhat more flexible in particular to reflect the Article 8 rights of the parties and the children.
a. Unless a marriage purports to be of the kind contemplated by the Marriage Act 1949 it will not be within section 11. What brings a ceremony within the scope of the Act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis. When considering the question of a marriage the court should be able to take a holistic view of a process rather than a single ceremony.
b. The court should take account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage including whether the parties had agreed that the necessary legal formalities would be undertaken; (b) whether it bore all or enough of the hallmarks of marriage including whether it was in public, whether it was witnessed whether promises were made; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage (d) whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them.
95. Applying that approach to the facts as I have determined them leads to the following conclusions.
a. It was understood by both the husband and wife that they were embarking on a process which was intended to include a civil ceremony in which the marriage would be registered,
b. The wife’s understanding and the husband’s expressed position was that this civil ceremony was to follow shortly after the Nikah ceremony
c. The failure to complete the marriage process was entirely down to the husband’s refusal after the Nikah ceremony had been undertaken to take action to complete the marriage process by arranging the civil ceremony.
d. The wife thereafter frequently sought to complete the marriage process by seeking to persuade the husband to undergo a civil ceremony.
e. The nature of the ceremony which was in fact undertaken bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry
f. thereafter the parties lived as a married couple for all purposes
g. the couple were treated as validly married in the UAE.
96. On the basis of my slightly more flexible interpretation of section 11 of the Matrimonial Causes Act 1973 informed by fundamental rights arguments and taking into account the factors outlined above I therefore conclude that this marriage falls within the scope of section 11 and was a marriage entered into in disregard of certain requirements as to the formation of marriage.
97. It is therefore a void marriage and the wife is entitled to a decree of nullity.”
On my reading, the judgment focuses on two key issues: the intentions of the parties and, more importantly, the obligation to protect the interests of their children. Notwithstanding media headlines to the contrary, however, what it does not appear to have been about is any general recognition of sharia marriage by the secular courts – as Williams J states unequivocally at .
The Times subsequently quoted Antonia Felix, of Mishcon de Reya, as suggesting that the lack of protection afforded to minority faiths groups was “worrying”, with reports suggesting that “61 per cent of the 375,000 or so Islamic married families living in England are not validly married under English law and therefore have no rights before the English courts if they are divorced”; she surmises that “significant numbers of married observers of non-Judeo-Christian faiths are also in a similar position to members of the Muslim community”.
It obviously remains to be seen what impact the judgment in Akhter will have on future cases of this kind, not least because any dispute about the validity of a nikah ceremony will inevitably be sensitive to the facts of the particular case. However, unregistered nikah marriages generally are clearly of concern to the Government, which touched on the issue very briefly in the recent Integrated Communities Strategy Green Paper:
“The government is supportive in principle of the requirement that civil marriages are conducted before or at the same time as religious ceremonies. Therefore, the government will explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings” [p 58: bold in original].
My own view, for what it’s worth, is that the Government’s decision to reject the Law Commission’s proposal to include marriage law in its latest Work Programme was a serious mistake. “Limited reform relating to the law on marriage and religious weddings” could just mean the addition of yet another strand to the cat’s cradle of overlapping provisions on marriage in England and Wales.
[With thanks to Dr Sharon Thompson for her helpful comments on this post in draft.]