In a guest post, Russell Sandberg analyses the Court of Appeal’s conclusion on the legal status of unregistered religious marriages

In Akhter v Khan [2018] EWFC 54, Williams J applied what he called a ‘holistic’ and ‘flexible’ approach to hold that an unregistered religious marriage could be treated as a void marriage. His purposive reasoning meant that the parties would be able to seek financial remedy orders if the marriage broke down. The Attorney General appealed, on grounds that this made the law of marriage uncertain.

In Her Majesty’s Attorney General v Akhter & Anor [2020] EWCA Civ 122, the Court of Appeal agreed, putting Williams J’s approach back in its box. Unregistered religious marriages will not be seen as void marriages but rather as not as marriages at all: ‘non-qualifying ceremonies’. This means that the parties will be unable to seek financial remedy orders on relationship breakdown.

By setting aside William J’s order, a bold but controversial approach to providing rights to those in unregistered religious marriages has been closed down.  The Court of Appeal has re-established the previous position that Williams J’s flexibility sought to circumvent. Those in unregistered religious marriages now continue to lack remedies under marriage law.

However, this does not mean that Akhter v Khan is destined to be at most a footnote: an example of innovation soon corrected. The case is significant for what it says about the operation and indeed the purpose of the law on marriage. Moreover, the Court of Appeal’s decision underlines that statutory reform is needed given that judicial creativity will not provide redress. This should be a priority for the Law Commission in their current review of the law on weddings

Background

The facts of the case relate to a typical unregistered religious marriage. In 1998, Nasreen Akhter and Mohammed Shabaz Khan had a nikah ceremony in 1998 but had not registered the marriage under civil law. They had four children together and while they lived in Dubai between 2005 and 2011 they were considered by the authorities there to be validly married. After eighteen years and back in the UK, the relationship broke down in 2016 and the petitioner, Akhter, issued a petition for divorce from the respondent, Khan.  Khan defended the divorce on the basis that the parties had not entered a valid marriage according to English law.

In her reply, Akhter put forward two arguments. The first was that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage. In the alternative, she argued that that the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973.

The first argument was quickly rejected by the trial judge on the basis that there was no evidence to support a on a presumed ceremony having taken place while the parties were abroad, ([2018] EWFC 54 paras 38, 40 and 41). However, the second argument was successful. Williams J held that that had been a void marriage and so Akhter was entitled to a decree of nullity.  He stated that the case law had established a threefold distinction:  ‘as the law currently stands a marriage can not only be valid and void but also what has become termed a non-marriage’ (para 6).

Williams J presented this ‘non-marriage’ category as being ‘insulting’ to the participants.  He expressed concern that ‘the application of the term “non-marriage” seems inapt and indeed pejorative’ (para 8).   He noted that where a couple had undergone public marriage ceremony and had ‘lived a married life and been accepted as married by their communities’ then designating this as a non-marriage felt ‘instinctively uncomfortable … and might rightly be regarded as insulting by many’.

Flexibility in the Family Court

Williams J rehearsed how section 11 of the Matrimonial Causes Act 1973 provides that a marriage may be void where certain requirements of the Marriage Act 1949 are not complied with (para 92).   However, Williams J held that this‘approach should be somewhat more flexible to reflect in particular the Article 8 rights of the parties and the children’ and this requires that the court take a holistic view of a process rather than a single ceremony’ (para 94).  He noted that 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’ (para 93) and so it was a relevant factor ‘whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them’ (para 94).

For Williams J, the vital aspect was the intention to complete the marriage by having the civil registration later on. He noted that ‘in respect of those who sought to effect or intended to effect a legal marriage’ then 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’ (para 80).  The fact that the couple had children was a relevant factor in applying this meaning. It was appropriate to consider the best interests of the child (para 72).  He held that ‘the expression non-marriage should be reserved only to those situations such as acting or children playing where there has never been any intention to genuinely create a marriage’ (para 81).

The Attorney General appealed. (Neither the petitioner nor the respondent took any active part in this appeal because they had reached an agreed settlement).

The Court of Appeal Restores the Status Quo

Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan, allowed the appeal ([2020] EWCA Civ 122) and set aside Williams J’s order since ‘there was, in this case, no ceremony in respect of which a decree of nullity could be granted pursuant to the provisions of s. 11 of the 1973 Act’ (para 128).

The Court of Appeal considered that the case raised two issues: ‘(i) Whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of s. 11 of the 1973 Act; and (ii) If there are, whether the December 1998 ceremony was such a ceremony, currently described as a non-marriage, or whether, as Williams J decided, it created a void marriage’ (para 5).

In relation to (i), the Court concluded that ‘there can be ceremonies which do not create a marriage, or even a void marriage, within the scope of the 1949 and the 1973 Acts and which do not, therefore, entitle the parties to a decree of nullity’ (para 65). And with reference to (ii) they ‘reached the clear conclusion that the December 1998 ceremony did not create a void marriage because it was a non-qualifying ceremony’ (para 123).

These were slightly odd questions to ask since it was not disputed that there may be some acts or ceremonies that would not create a void marriage. The question in play was rather where the line ought to be drawn and if Williams J had drawn the line in the right place by saying that any intention to genuinely create marriage would render it void.

While Williams J had focused on the unfairness of the category of non-marriage, the Court of Appeal was more concerned with preserving the certainty of the category of marriage (para 10).   The Court of Appeal agreed with what they termed ‘Williams J’s disquiet about the use of the term “non-marriage”’ (para 7).  However, they suggested that ‘a better way of describing the legal consequences of what has happened is to use the expression, “non-qualifying ceremony”’.  This terminology would signify that the relationships ‘are outside the scope of both the 1949 and the 1973 Acts’ (para 64). This language would also stress ‘that the focus should be on the ceremony’.

This was the nub of the appellate court’s decision. The concept of a void marriage covers marriage ceremonies that are under the provisions of marriage law but fail to conform with some of the formalities. It should not be extended to situations where there is no attempt at a ceremony under the provisions of the marriage law but there is an intention to comply later on.  In the present case, ‘the parties were not marrying “under the provisions” of Part II of the 1949 Act’ (para 123). They ‘knew that the ceremony had no legal effect and that they would need to undertake another ceremony which complied with the requirements of the 1949 Act if they were to be validly married’. There are some ceremonies and acts that do not fall ‘within the scope of the Act at all’ and which, therefore, do not entitle a party to a decree of nullity’ (para 52).

The Court of Appeal therefore rejected Williams J’s suggestion that a genuine intention that the requirements will be complied with at some point would suffice. Such a suggestion, they held, ‘would be contrary to the need for certainty in the interests of the parties and in the public interest’ (para 63). The question of ‘whether a ceremony created a valid marriage or a void marriage or was of no legal effect at all must be determined at the date of the ceremony’ (para 124). It could not ‘depend on whether the parties might have agreed to undertake a further step or steps’ since this ‘might result in a party being married even when they had changed their mind part-way through the process’ (para 126). The Court pointed out that no one can be forced to marry and indeed, forcing someone to marry is a criminal offence (para 88). Agreements to marry do not give rise to legal rights or remedies.

The Court of Appeal was also quick to disregard the Article 9 argument, holding that ‘the Petitioner’s Article 8 right to respect [for] family life is undoubtedly engaged, the failure of the state to recognise the Nikah as a legal marriage is not in breach of those rights’ and ‘the right or otherwise to the grant of a decree of nullity does not in itself engage Article 8’ (para 106). Moreover, the fact that there had been children was an immaterial consideration because ‘the action in question relates solely to the status of the adult applicant’ (paras 111  and 119).

Conclusion

The two courts approached this case with different priorities. Williams J’s purposive reasoning was shaped by his dislike of the term non-marriage which he sought to mitigate by expanding the definition of a void marriage. Such an expansion was deeply problematic for the very reason that preoccupied the Court of Appeal: the need for certainty.

However, the appellate court’s insistence on certainty is undermined by the fact that the regulatory framework is no longer fit for purpose. The problem of unregistered religious marriage shows that marriage law is failing in its ‘main purpose’ of being ‘easily ascertainable and, thereby, to provide certainty’ (para 10).

It is now clear that an intention to follow up a ceremony outside the Marriage Acts with a ceremony that complies with the Acts does not constitute a void marriage. The Court of Appeal has insisted that there needs to be a ceremony under the Marriage Act which suffers from a defect in order for there to be a void marriage. The previous legal situation has been restored. This is not surprising. A radical circumvention will rarely stick unless it is incredibly robust.  This does not mean, however, that the issue of unregistered religious marriages will go away.  This saga shows that judicial activism is not the way forward and so attention should move to the legislature. The Court of Appeal’s decision makes the Law Commission’s work in this area even more important and pressing.

I am grateful to Dr Sharon Thompson and Frank Cranmer for their comments on an earlier draft of this post. All errors remain my own.

Russell Sandberg

Cite this article as: Russell Sandberg, “Farewell, ‘Flexible’ Fudge: The position of unregistered religious marriages returns to square one” in Law & Religion UK, 25 February 2020 https://www.lawandreligionuk.com/2020/02/25/farewell-flexible-fudge-the-position-of-unregistered-religious-marriages-returns-to-square-one/.