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Akhter v Khan: the law is clarified but reform is needed

The Court of Appeal has given judgement on the appeal lodged by the Attorney General heard in November last year and overturned the ruling given in the Family Court by Mr Justice Williams in the case of Akhter v Khan.

The Court of Appeal unanimously found that, in this case, no marriage ceremony took place in respect of which a decree of nullity could be granted.

Mr Justice Williams had originally held that the couple intended to 'embark on a process of marriage' which was to include the civil ceremony and the failure to complete this 'process' was entirely down to Mr Khan's refusal after the Nikah to arrange the civil marriage ceremony. Other considerations in the original ruling included the fact that the marriage was a long one (20 years), during which the wife consistently requested a civil marriage and that there were four children involved.

Mrs Akhter issued a petition for divorce from the respondent Mr Khan on 4 November 2016 claiming they had been married in 1998. The husband defended the divorce on the basis that the parties had not entered a valid marriage according to English law but had instead undergone an Islamic Nikah which should be regarded as a blessing not a marriage.

Mr Khan had sought to rely on the Islamic Nikah conducted in England to persuade the authorities in the UAE to accept it as a valid marriage for the purposes of living and working there. Although there was no separate civil ceremony performed in the UAE, the UAE authorities did accept the marriage for the purposes of UAE law.

A very strong argument by the wife on Human Rights grounds prompted Mr Justice Williams to consider the European Convention on Human Rights (ECHR) and take into account the best interests of the children, who would potentially be affected if a marriage was declared void and the resultant financial remedies not able to be pursued. The importance of the declaration of a void marriage leading to a decree of nullity meant that Mrs Akhter was entitled to the same financial remedies available to married couples upon divorce.

The Court of Appeal found that the Nikah conducted in this case did not create a void marriage because it was a ‘non-qualifying’ ceremony.  In other words, there can be ceremonies, which the court defines as non-qualifying ceremonies, that do not create a marriage or even a void marriage under English law and so do not entitle a party to a decree of nullity or financial remedies.

The Court of Appeal did not accept that the ECHR argument was valid and in particular that it supported a ‘flexible approach’. The issue for the Court of Appeal was whether the parties were to be treated as being validly married under English law by operation of a presumption of marriage or, if not, then the marriage would be a void marriage, susceptible to a decree of nullity under section 11 Matrimonial Causes Act 1973 (MCA 1973).

Their judgement means that, in effect although the Nikah  may well have has some similarities to what is understood to be a ‘marriage ceremony’ (held in public with vows exchanged etc), since the ‘marriage’ was not performed in a registered building, there was no notice given, no certificate and no registrar or authorised person present, the parties knew it had no legal effect and on that basis the decree of void marriage was rescinded and the application dismissed.

Siddique Patel maintains that, whatever the outcome of the appeal may have been, it is high-time for reform of the law:

“The decision in the first instance by Mr Justice Williams was perhaps surprising and the Court of Appeal ruling is more in keeping with the legislation and public policy grounds. The Marriage Act 1949 currently grants the ability to register marriages for just three religions (Anglicans, Jews and Quakers) and is, many argue, outdated and no longer fit for purpose. In order to address the lack of legal protection for unregistered faith marriages, the Marriage Act 1949 requires reform so that all religious marriages are legally registered to protect the family unit.”


Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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