Family Law

At first glance, it might appear from the reported case of Akhter v Khan [2018] EWFC 54 that we have now finally arrived at the stage where English civil law has recognised an Islamic marriage (Nikah) which has been performed in England and Wales.

There has been support for the decision from various groups, interested well-wishers and even some family lawyers that finally, an Islamic Nikah is recognised as a valid marriage under English law, and the floodgates will now open for wronged Muslim women to come forward and pursue their divorces through the Courts of England and Wales.

Add to the mix the inaccurate and sometimes flagrant misreporting of the case in certain quarters of the media and we find ourselves in a sort of mild-level hysteria that all Shariah marriages will now be given the same status as a marriage carried out under the auspices of the Marriage Act 1949. This is not correct.

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 marriage valid according to English law but had instead undergone an Islamic Nikah which should be regarded as a blessing not a marriage. The issue for the court concerned whether the parties were to be treated as being validly married under English law by operation of a presumption of marriage or, if not, is the marriage a void marriage, susceptible to a decree of nullity under s 11 Matrimonial Causes Act 1973 (MCA 1973). As ever, the devil is in the detail and the facts of this case will resonate with Muslim couples and family lawyers alike. Namely an Islamic Nikah performed first, with the wife requesting at the time (and continuing afterwards) that the civil registry marriage be also performed. The husband then putting this off, delaying or just plain refusing the performance of the civil ceremony. In this case, the refusal was denied by Mr Khan but Mr Justice William 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.

Another fact specific to this case was that the husband 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, this was duly accepted by the UAE authorities as a valid marriage for the purposes of UAE law.

Other specific details include the fact that the marriage was a long one (20 years), the wife consistently requested a civil marriage throughout its duration and that there were 4 children of the marriage. This brought into play a very strong argument by the wife on Human Rights grounds enabling the court to consider Art 8 of the European Convenction on Human Rights (ECHR) (the right to respect for private and family life) and interpret s 11 MCA 1973 to take into account the best interests of children, who would potentially be affected if a marriage was declared and the resultant financial remedies able to be pursued.

At this point it must be stressed that the judgment does not say that the Islamic Nikah between Mrs Akhter and Mr Khan was accepted as a valid marriage in accordance with the law. The opposite is true despite this inaccurate 'fact' being widely reported in the media. On the contrary, the court declared the marriage to be void and specifically concluded that the presumption of marriage does not operate on the facts of this case so as to presume a valid marriage under English law.

So what did the court rule? Why all the headlines?

In an exemplary piece of lawyering, Mr Valentine Le Grice QC on behalf of Mrs Akhter, made submissions relating to the presumption of marriage and nullity of marriage. He took the court through a detailed consideration of the existing case law and addressed what the courts have referred to in the past as the status of a 'non-marriage'. Helpfully, the decision appears to have consigned this unhelpful term to history. In this case the court ruled that although the marriage was not a valid marriage, it was a void marriage based on the court's self-admitted 'flexible' interpretation of s 11 of the Matrimonial Causes Act 1973.

He went on to say that his decision was informed by 'fundamental rights arguments' and concluded that within the scope of s 11, this was a marriage entered into in disregard of certain requirements as to the formation of marriage.

The importance of this declaration of a void marriage is that as a consequence there is a decree of nullity meaning that Mrs Akhter is entitled to the same financial remedies available to married couples upon divorce. She will, therefore, avoid the unsatisfactory position of having to rely upon the limited financial remedies available to a former cohabitee under the Trusts of Land and Appointment of Trustees Act 1996 or to a parent under Sch 1 pf the Children Act 1989.

So does this now mean that every Islamic Nikah performed in England and Wales will now be classed as a void marriage if it is not followed up with a civil registry marriage?
The short answer is no. The approach followed by Mr Justice Williams in this case has been similar to that of Moylan J in MA v JA and the Attorney-General [2012] EWHC 2219 (Fam), [2013] 2 FLR 68 in that there is no catch-all approach and every set of facts must be considered on a case by case basis. It is on their own unique facts that future cases will turn. Even a cursory reading of the judgment in this case reveals to the casual reader the delicate analysis performed by Mr Justice Williams in considering not only arguments about the correct application of historical Ecclesiastical jurisprudence, but also the balancing exercise performed in reconciling our 1949 and 1973 matrimonial legislation with ECHR case law and relevant articles of the Human Rights Act 1998.

So it would seem that the factual matrix of any future cases would require similar forensic analysis and it is most definitely not a given that every single Islamic Nikah performed in England and Wales will be accepted by the court as leading to a void marriage. In any event, the case of Akhter v Khan may well have Supreme Court written all over it and it may be that this is not the last we have heard of the matter.

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This article was originally published by Shoosmiths