The marriage of a woman who wed her husband in an Islamic ceremony should not have been declared void, the Court of Appeal has ruled, in a case family lawyers say could have significant consequences for marital rights.
Her Majesty’s Attorney General v Akhter and Khan concerns a decision by Mr Justice Williams, in the family court, to pronounce a decree nisi of nullity. The couple wed in an Islamic ceremony which took place in a London restaurant in 1998. They knew the ceremony had no legal effect and intended to follow it up with a civil marriage ceremony compliant with English law, but this did not happen.
The wife issued a divorce petition in 2016, relying on the Islamic ceremony. The husband said the couple were not legally married. The wife then relied on the presumption of marriage and, in the alternative, sought a decree of nullity under the Matrimonial Causes Act 1973. The attorney general intervened in the proceedings and argued that the petitioner was not entitled to a decree of nullity because the ceremony was of no legal effect.
Williams said the court was justified in taking a ‘holistic view of a process rather than a single ceremony’ and ruled that the wife was entitled to a decree of nullity.
However, in a judgment handed down today, the appeal court said the ceremony did not create a void marriage because it was a non-qualifying ceremony. ‘The parties were not marrying “under the provisions” of part II of the 1949 Marriage Act. The ceremony itself would have been permitted under section 44 if it had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. It was not, therefore, a marriage within the scope of, in particular, the provisions of section 26 of the 1949 act. We would also add that the parties 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,’ the appeal court said.
The ruling has prompted calls for marriage laws to be updated.
4PB barrister Charles Hale, who represented Akhter, said: ‘Thousands of women, usually Muslim women, believe that they lawfully marry in this country each year by undertaking a religious ceremony only. Many of them (and it is usually Muslim women) do not know in fact that, no matter how many people attend, no matter how public an expression of the marital contract, that they are not in fact lawfully married in accordance with the laws of England and Wales. This means that many have absolutely no rights at the end of what they believe to be their ‘marriage’. No rights to assets in the husband’s sole name, and no rights to maintenance, even if, as with Mrs Akhter, they were married for 18 years.
‘The Court of Appeal has dismissed [the] human rights based first instance decision of Mr Justice Williams and has upheld the existing concepts of what constitutes a lawful marriage, but in doing so recognised that the concept of “non-marriage” in these cases is offensive to many. The law in these cases is not keeping up with society.’
Anna-Laura Lock, a senior associate in the family team at London firm Winckworth Sherwood, said: ‘Given the current law on marriage leaves parties to a religious ceremony so exposed financially following relationship breakdown, this will not be the end of the road for this issue. A change in the law is long overdue and must surely be on the horizon.
‘The present case is concerned with an Islamic marriage ceremony, but the decision applies equally to religious ceremonies in the many faiths that make up our multi-cultural society. We must ask whether it is fair that those planning to have a religious ceremony that is not in the Jewish, Quaker or Anglican faith must comply with more onerous, confusing and potentially more expensive requirements to have a legally valid (or potentially void) marriage.’
The Law Society Gazette