Michelle Flynn is an Irish barrister and a Research Fellow at the Max Planck Institute for Social Anthropology in Germany. She is currently a Visiting Researcher at Yale Law School in the United States. Michelle is a 2019 alumna of the ICLRS Religion and the Rule of Law Young Scholars Fellowship Program.
In Attorney General v Akhter & ors [2020] EWCA Civ 122 the UK Court of Appeal overturned a judgment of the High Court which held that an Islamic marriage ceremony, a nikah, could have legal effect. There was a certain irony in the decision, which focused on the formal requirements of marriage law in England and Wales, being issued on St. Valentine’s Day; originally a Christian feast day, it has become a globally recognized day to celebrate love and romance. In modern times, marriage is generally regarded as intensely romantic, however the reality of the potential complications of marriage in our increasingly diverse and multicultural societies is frequently overlooked.
The Marriage Act 1949 provides the regulatory framework for marriages in England and Wales and sets out the formal requirements for the solemnization of a marriage. A marriage can be categorized as “valid”, “void” or “voidable”. Upon the breakdown of a valid marriage, an order for judicial separation or divorce can be made, in addition to financial orders in respect of the division of assets and maintenance. A decree of nullity can be sought in respect of a void or voidable marriage. A void marriage is one deemed to have never existed due to a fundamental defect, such as a failure to adhere to the requirements as to the formation of a marriage, as set out in s.11 of the Matrimonial Causes Act 1973. A voidable marriage is a legally valid marriage which can be annulled for a specified reason as set out in s. 12 of the Matrimonial Causes Act 1973, such as a lack of consent at the time of the marriage. A decree of nullity issued in respect of a void or voidable marriage entitles a party to apply for financial orders under the Matrimonial Causes Act 1973. The term “non-marriage” refers to a ceremony that falls outside the scope of the Marriage Act 1949. As a non-marriage is not recognized, no claim for financial relief can be made by a party upon the breakdown of such a relationship.
Facts
In 1998, Nasreen Akhter (“the wife”) and Mohammed Shabaz Khan (“the husband”) took part in an Islamic marriage ceremony, a nikah, conducted by an Imam in a restaurant in London. Both parties were aware that the nikah produced no legal consequences, however no civil ceremony subsequently took place due to the unilateral refusal of the husband to participate in such a ceremony. The couple remained together for eighteen years during which time they had four children. The family lived in the UK, except for a period of time between 2005 and 2011 when they lived in Dubai and the couple were treated by the UAE authorities as being validly married. In 2016, the wife initiated the petition for divorce but it was resisted by the husband on the basis that the parties did not have a valid marriage according to English law. The Attorney General intervened in the proceedings and argued that the wife was not entitled to a decree of nullity because the nikah ceremony was of no legal effect.
Judgment of the High Court
In Akhter v Khan [2018] EWFC 54, Mr. Justice Williams in the High Court stated that specific provisions of the European Convention on Human Rights (ECHR), namely Article 8 (right to respect for private and family life) and Article 12 (right to marry), mandated a “slightly more flexible interpretation” of s. 11 of the Matrimonial Causes Act 1973 which sets out the grounds upon which a marriage may be deemed void. Judge Williams identified this action as one concerning children and thus their best interests should be considered, as mandated by Article 3 of the United Nations Convention on the Rights of the Child (UNCRC). Judge Williams, in taking “a holistic view of a process rather than a single ceremony”, concluded that the ceremony that took place in December 1998 fell within the scope of s.11 of the Matrimonial Causes Act 1973, thereby entitling the wife to a decree of nullity. The Attorney General appealed the decision, however neither the wife nor the husband took an active part in the appeal as they had already agreed a settlement.
Judgment of the Court of Appeal
Whilst the Court of Appeal recognized that Judge Williams’ decision was an attempt to enable the wife to make an application for financial orders, it nonetheless set aside the decree of nullity issued by the High Court. The two major issues to be determined were as follows:
“(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.”
With regard to issue (i), the Court of Appeal held that there can be ceremonies which do not create a marriage within the scope of the Marriage Act 1949 and the Matrimonial Causes Act 1973, and therefore do not entitle the parties to a decree of nullity. The classification of a marriage as void is determined at the date of its alleged solemnization and is thus not dependent on subsequent events such as the intention to undertake a further ceremony, or indeed whether there are children. Regarding Article 8 of the ECHR and Article 3 of the UNCRC, the Court concluded that neither provided a basis to change the legal effect of a ceremony and alter the status of a “non-marriage” to a “void marriage”.
In relation to issue (ii), the Court of Appeal held that the nikah ceremony was not a marriage within the scope of the Marriage Act 1949. The ceremony would have been permitted under s.44 of the Marriage Act 1949 if it had been performed in a registered building. Nevertheless, it was also noted that no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorized person was present at the ceremony. Both parties understood that the ceremony created no legal consequences and, in order for the couple to be validly married, a further ceremony was required which complied with the requirements of the Marriage Act 1949.
Observations
- The Court of Appeal noted that to bring all religious ceremonies within the scope of the Marriage Act 1949, irrespective of adherence to the statutory requirements, would raise a potential issue of unequal treatment vis-à-vis non-religious ceremonies that may also not fulfill the formal requirements. Furthermore, it was noted that there is a clear obligation placed upon those who solemnize a marriage and by authorized persons to ensure that parties are made aware of the legal effects of a ceremony. Failure on the part of such persons to adhere to certain formalities in ceremonies that fall within the scope of the Marriage Act 1949 amounts to an offence being committed by those who solemnize a marriage (per s.75) and by authorized persons (per s.77).
- The extent to which the ECHR and other international human rights instruments were considered by both the High Court and the Court of Appeal was striking. The Court of Appeal held that the failure of the State to recognize the nikah as a legal marriage was not in breach of Article 8 of the ECHR. Furthermore, Article 8 did not mandate a flexible interpretation of s. 11 of the Matrimonial Causes Act 1973. The Court of Appeal also concluded that Article 12 of the ECHR did not apply in this case. It was noted that to force someone to marry is a criminal offence and there was no right to sue for breach of an agreement to marry. The Court of Appeal clarified that the best interests of a child was not a relevant consideration in determining whether a ceremony created a valid or void marriage, thus provisions under the UNCRC were not pertinent.
- The expression of dissatisfaction by the High Court and the Court of Appeal towards the term “non-marriage” is also particularly noteworthy. Indeed, the Court of Appeal expressed the view that a more apt description of the ceremony was as a “non-qualifying ceremony”, thus indicating that such a ceremony falls outside the scope of the Marriage Act 1949 and the Matrimonial Causes Act 1973. Reference was also made in both judgments to the current Law Commission review of the law governing weddings.
Conclusion
The regulation of marriage and divorce by the state is a matter of huge practical significance, especially for individuals whose religious precepts concerning marriage and divorce fall outside the ambit of state law. The recent blog series titled The Chained Wife Problem: Religious and Secular Perspectives provides a thoughtful response to the recent case in which a private criminal prosecution was launched by a Jewish woman against her former husband under the Serious Crime Act 2015 on the basis that his refusal to grant a religious divorce called a get, amounted to “controlling or coercive behaviour in an intimate or family relationship”. The former husband eventually granted the get and the private prosecution was discontinued. Nevertheless, the case exposes some of the complications that can arise for adherents of certain faith groups when, in the course of divorce proceedings, aspects of religious marriage and divorce are deemed as falling outside the ambit of state law.
In Attorney General v Akhter & ors, the rationale set forth by the Court of Appeal about the importance of certainty in determining marital status is entirely cogent. Nevertheless, when the Court of Appeal opines that “although the overall system might be described as complex, we would suggest that it is not difficult for parties who want to be legally married to achieve that status”, the lived experience of individuals, especially women, within certain cultural or religious groups is overlooked. Religious and cultural practices tend to be more intensely observed within the realm of private relationships and family life. Thus, it is important for religious adherents to be offered the possibility of having certain religious aspects of their most private relationships considered by a civil court in proceedings concerning marriage and divorce. The judgment from Judge Williams in the High Court reveals the benefit of the position of the trial judge, having heard evidence from the parties, to appreciate the complexity of familial structures within a multicultural society. The current Law Commission review of the law governing weddings is welcomed, however it is essential that the complexities of these issues are treated in a nuanced and practical fashion.