In my previous blog, I discussed the case of Akhter v Khan which concerned an Islamic wedding ceremony known as a Nikah, which had taken place in a London restaurant. The High Court had held that the ceremony amounted to a voidable marriage under section 11 Matrimonial Causes Act 1973, as opposed to a ‘non-marriage’. This was an important as it would entitle the wife, and many others in her position, to a decree of nullity and potential financial claims for the redistribution of property. In a recently published judgement, the Court of Appeal has overturned this decision and held that the ceremony concerned was in fact a ‘non-marriage’.
In the case concerned, both parties had agreed that the Nikah ceremony would be followed by a civil ceremony and understood that, without the civil ceremony, they would not be legally recognised as being married. Neither the Petitioner nor the Respondent in the initial proceedings wanted to take part in the appeal, having reached an agreement between themselves however, the Court gave permission for a Petitioner in separate nullity proceedings (Ms Hussain) to intervene in the appeal along with Southall Black Sisters.
Section 11(iii) Matrimonial Causes Act 1973 provides that a marriage shall be void where it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say where the parties have intermarried in disregard of certain requirements as to the formation of marriage.) The Court held that this provision clearly refers to non-compliance with formalities set out in the 1949 Act, in particular, that the ceremony must take place in the presence of a registrar or authorised person, in the presence of two witnesses, and both parties must state that they are legally free to marry.
It was held that the 1973 and 1949 Acts do not contain provisions setting out when a ceremony will fail to fall within their scope at all. However, it has long been recognised that there must be some occasions where a ceremony does not even create a void marriage and will therefore not entitle a party to a decree of nullity. To hold otherwise, would effectively deregulate marriage.
Acting on behalf of Ms Hussain, Charles Hale QC argued that the 1973 Act does not preclude the Court from finding a marriage void in circumstances other than those set out in the 1949 Act. This argument was dismissed, and it was held that the Court has no inherent power other than under statute for the Court to grant a decree of nullity. In fact, it is prohibited by section 58(5)(a) Family Law Act 1986.
Mr Justice Williams in the High Court took ‘a holistic view of the process rather than [concentrating on] a single ceremony’. In their Judgement, the Court of appeal preferred to use the expression ‘non-qualifying ceremony’, focussing on the ceremony itself. They emphasised the need for certainty that specific rights and obligations can flow from a valid wedding ceremony only, and not any other form of relationship.
I would argue this ignores what is happening on the ground. Often, individuals contact us unaware of the financial rights and obligations which flow from their marriage, or in the misguided understanding that they do flow from cohabitation or ‘common law marriage’. The judgement is arguably not in keeping with proposed reforms concerning the rights of cohabiting couples. Conversely, perhaps like cohabitation reform, this is a matter for parliament and not for the judiciary.
I would argue that intention is key in this case. In my view, the ceremony fell short of void marriages envisaged under the 1973 Act because both parties knew it was not a valid marriage and that the civil ceremony was necessary to make it valid. The parties had several discussions about this however, the husband did not follow through with arranging the civil ceremony. To grant Ms Akhter a decree of nullity would be akin to enforcing a promise to marry which it has long been accepted would be unjust. I can’t help feeling if the parties had participated in the same ceremony in the belief that this amounted to a valid marriage, the outcome may have been different. In many ways, it is unfortunate the issue reached the Court of Appeal on this set of facts.
The Law Commission is currently conducting a review of the law governing how and where couples can marry, following their Scoping Paper ‘Getting Married’. The Scoping paper considered three options for reform:
It is the third approach which will be taken during the consultation. Only time will tell what this simpler structure will look like.