Akhter v Khan and whether the English Court recognises Sharia Marriages: A shift in the accepted legal understanding of what constitutes a marriage, valid or void

In English law, a marriage can be valid, void, voidable or a “non-marriage”, where the ceremony falls so far outside the bounds of what would be…

In English law, a marriage can be valid, void, voidable or a “non-marriage”, where the ceremony falls so far outside the bounds of what would be considered a valid marriage ceremony that it cannot be treated as such and the parties are treated only as unmarried cohabitees. This can cause particular problems for parties who have entered into a religious ceremony only, without completing the requisite civil ceremony, and can have considerable consequences in relation to the financial remedies available upon the relationship break down.

Financial remedies for unmarried parties on relationship breakdown are considerably more limited in scope than on divorce (based solely on trust and property law), even when children are involved when another scheme under Schedule 1 of the Children Act 1989 applies, again much more restrictive than the court’s discretion on divorce.

The impact of the relationship being treated as a “non-marriage” can mean significant financial detriment to the economically weaker party, still frequently the wife (or notional wife).

The recently released judgment of Akhter v Khan [2018] EWFC 54 has made legal waves, and headlines, with the court demonstrating a shift in the way in which parties married by Nikah (the Islamic marriage ceremony), but no corresponding civil ceremony would be treated.

However has it, as some commentators are suggesting, resulted in the English Court now formally recognising Sharia marriages?

Background

The parties had undertaken a Nikah in 1998. Both understood and accepted at the time, and during the proceedings, that this did not create a valid English marriage. The Wife’s case, accepted by the court, was that she had believed that the parties would then go on to enter into the requisite civil ceremony. They had 4 children. Although the parties’ positions differed in relation to the actual date of marriage breakdown, the judge determined that this was a relationship of some 18 years, ordinarily being a “long marriage” within the Family Courts.

When the marriage broke down, the Wife petitioned for divorce and issued an application for financial relief. The Husband sought to strike out the divorce petition, saying that the Wife was aware that the parties were not legally married and as such would not be entitled to the usual financial remedies. Eventually, the matter came before Williams J for determination.

The Law

The crux of the Wife’s case was that either:

  1. The presumption of marriage operated to create a valid marriage; or
  2. The marriage was “void” under section 11 of the MCA.

It is important to note the distinction here. Clearly, if the marriage was valid the Wife would have access to the financial remedies flowing from divorce. Likewise, if the marriage was “void”, the Wife would still be able to bring her claim for financial relief. However, if the marriage was treated as a “non-marriage,” a term rejected by the judge as being “negative [and] potentially insulting” the Wife would have no claim to financial provision from the Husband, save for any claim arising out of trust law/Schedule 1 Children Act 1989 proceedings, being a wholly unsatisfactory outcome in a long “marriage” in respect of which there were 4 children.

The judge undertook a detailed and complex review of historic and more recent statute and case law, in particular addressing whether any of the parties’ rights pursuant to EHCR were engaged and should impact the decision.

Presumption of marriage

In specific circumstances, a presumption of marriage can arise, sometimes arising from the parties’ cohabitation, their having established the reputation of being ‘married’; or arising from a ceremony (which has been defective in the sense of not complying with the detail required to fulfill a valid marriage ceremony) and subsequent cohabitation following the ceremony.

However, because all parties acknowledged that they knew that the Nikah was a religious ceremony only, non compliant with the civil requirements of a marriage ceremony, the judge concluded that there could be no presumption of marriage.

As such, it is clear that entering into a Sharia ceremony alone will not create a marriage from which a divorce, and financial remedies, will flow. Unfortunately some parts of the press have inaccurately reported the case, suggesting the opposite.

Was the marriage void and susceptible to a degree of nullity under section 11 Matrimonial Causes Act 1973?

The judge considered a number of fundamental rights arising from the EHCR (some of which he discounted, and others which he found were relevant), considering that in applying article 8 for example, the right to respect for private and family life: “in respect of those who sought to effect or intended to effect a legal marriage [the article] supports an approach to interpretation and application which the finding of a decree of avoid marriage rather than a wholly valid marriage”.

The judge addressed article 12, the right to marry and found a family. Leading counsel accepted that it is clear that the authorities can impose formalities on marriage. However, the judge felt that article 12 should also have a “horizontal effect”, so that “in this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying and has thus left her in the situation where she does not have a marriage which is valid under English law the husband himself has infringed her right to marry”.

He also felt that the UN rights of the child should be taken into account, so that the interpretation or application of section 11 MCA 1973 should “where it is appropriate be able to take into account the best interests of children”.

The judge felt that following his review of the fundamental rights, section 11 MCA 1973 should be interpreted with “more flexibility”.

He stated that “the court should taken account of the various factors and features mentioned above including particularly, but not exhaustively:

  1. whether the ceremony purposed to be a lawful marriage including whether the parties had agreed that the necessary legal formalities would be undertaken;
  2. whether it bore all or enough of the hallmarks of marriage including whether it was in public, whether it was witnessed whether promises were made;
  3. whether the three key participants (most especially the officiating official) believed, interned and understood the ceremony as giving rise to the status of lawful marriage;
  4. whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them”.

The judge therefore found that taking this more flexible approach to take account of the fundamental rights, this was a marriage falling within the scope of section 11, was therefore void, and the wife was entitled to a decree of nullity.

As a result, this opens the door to her financial claims equivalent to those available on divorce.

Commentary

There were a number of case-specific factors which came into play here. Most specifically, the Wife’s understanding that a civil ceremony would follow, and repeated requests (over the years of the relationship) for the same. It was only the Husband’s complete refusal to do so that left the Wife in the position of being married only in accordance with Sharia law.

Further, the parties had produced evidence of their Nikah in the UAE as evidence of their “marriage” to enable them to live there with the children. They were effectively holding themselves out to those authorities as a married couple, and living as such. This was a long marriage (albeit judged a “void” marriage) which had produced 4 children. The parties had been treated by the authorities, by their friends and family as validly married.

Further, one has to wonder to what extent the judge was influenced by finding the Wife’s evidence to be generally much more impressive than the Husband’s, in reaching the conclusion that he did.

What does this mean for those married under Sharia Law?

It is clear that entering into a Sharia ceremony alone will not create a marriage from which a divorce, and financial remedies, will flow.

For a case to be successful, there will need to be a detailed forensic analysis of the facts.

Not every Islamic Nikah performed in England and Wales will be accepted by the court as leading to a void marriage. However, some may be following the outcome of this case.

Whether the case will be challenged in the Appeal Courts is yet to be seen.

Eleanor Webster is a solicitor in Weightmans’ Family Law team.

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