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Has English law recognised a “nikah only” marriage?

I review the potentially ground-breaking case of Akhter v Khan. I consider the decision harmful and expect it to be overturned on appeal.

Summary

Posted 5 August 2018

I have often mentioned the problems when Muslims in the UK engage in a religious marriage ceremony (a “nikah”) without also engaging in a civil marriage.

See “Muslim religious marriages and divorces – the problems and ways forward.”

Accordingly I was very surprised to see the story “Landmark ruling sees British court recognise sharia law for the first time as judge rules wife married in Islamic ceremony can make claim on husband's assets under UK law” on the Daily Mail newspaper’s website last Thursday.

After reading the newspaper story, I issued the tweet below which contains a link to the story:

I am reluctant to disagree with a High Court judge. However I consider this decision to be wrong in law and expect to see it overturned on appeal.

https://t.co/Ks2Z8YNAAT

— Mohammed Amin (@Mohammed_Amin) August 2, 2018

A newspaper article, especially one written by a journalist who is not a practising lawyer, can only give a brief impression of the case, and rarely explains the legal arguments properly.

I have now had an opportunity to read the full text of the judgement and written a short explanation below as well as giving my views on the decision.

I would like to remind readers that the footer of every page of my website contains a disclaimer that nothing on this website constitutes professional advice and that I accept no responsibility for it.

A summary of the case

The full text of Mr Justice Williams’s Family Court judgement in the case Akhter v Khan, [2018] EWFC 54, is on the BAILII (British and Irish Legal Information Institute) website. For readers’ convenience I have also converted BAILII’s downloadable RTF file into a downloadable PDF.

I recommend reading all 42 pages but appreciate that readers unfamiliar with English law may find it difficult.

Where I have quoted from the judgement below, I have sometimes added paragraph breaks to make the text easier to read. Otherwise the quotes are, of course, verbatim, except where [comments by me] are interpolated.

The facts

The summary of the facts below is of course much shorter than the details set out in the judgement.

Throughout the decision, Justice Williams refers to the petitioner Nasreen Akhter as “W” and the respondent Mohammed Shabaz Khan as “H” without any presumption that they were ever wife and husband. For convenience, I take the same approach.

W and H were each born in 1971. In 1998 they underwent an Islamic religious marriage ceremony in London. There is full documentary evidence of this ceremony.

There was conflicting evidence from W and H regarding whether the parties planned to have a subsequent civil wedding. The judge considered W’s evidence more credible and found that H had promised that there would be a subsequent civil wedding although this never took place.

The couple have four children.

In 2005 the couple moved to Dubai. The authorities in Dubai required evidence that the couple were married, and this was provided in the form of a certified copy of their nikah certificate. That satisfied the Dubai authorities.

Relations between the couple deteriorated and W moved back to the UK. H moved back later. There were various separations and reunions.

In 2016 W applied for various legal remedies from the English court. In response (page 16 of the judgement):

“H files answer stating the parties have not entered into a legally binding marriage in England and Wales and therefore would be considered as cohabitees’

In his detailed answer he asserts that the only divorce proceedings which would be applicable would be by way of Sharia law and he asserts that the W is aware that the parties are not legally married and wishes to pursue the application in the hope to make a financial claim under the Matrimonial Causes Act 1973. H prayed that the application for divorce should be struck out.”

The italicised emphasis above is in the original judgement text.

The case is so important that as well as the two litigants, with their barristers, there was an external interested party, namely the Attorney General who was represented by his own barrister.

The law as explained by the judge

The summary below is mainly intended to help readers to navigate through the judgement. Where I have quoted the judge, I have given the paragraph numbers of the judgement, to make it easier to read the original judgement.

Introduction

Before reciting the facts, in the introduction section the judge explains the legal issues.

  1. “There are thus two central questions which I have to answer:
    1. Are the parties to be treated as a validly married under English law by operation of a presumption of marriage;
    2. if not, is the marriage a void marriage, susceptible to a decree of nullity.”

The judge goes on to explain that if the relationship between the parties does not fall into either of the above categories, then it falls into a third category of being what is commonly referred to as a “non-marriage” which is a pure nothing in English law.

Justice Williams explains later in the judgement that he regards the term “non-marriage” as pejorative, and his preferred usage (with the same legal consequences) is an “invalid marriage.” That is the term I also use on this website page.

Accordingly, was the marriage:

  1. Valid?
  2. Void?
  3. Invalid?

If either of the first two, as explained later, W could receive various forms of relief from the court, which I would describe as a  “divorce settlement” (even if the marriage was void) whereas if the marriage was invalid, the court could do nothing for her.

The judge was emphatic that the case was not about assessing whether a nikah created a valid marriage but only about whether it created a void marriage or an invalid marriage.

  1. “What this case is not about though is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.”

Presumptions of marriage

Justice Williams begins by explaining the concept of the presumption of marriage. This can arise from cohabitation and reputation. i.e. where everyone believes the parties to be married.

After reviewing the facts, the judge concludes:

  1. “I therefore conclude that the presumption of marriage does not operate on the facts of this case so as to presume a valid marriage under English law.”

Marriage and nullity

Having decided that the marriage is not valid, the judge then needs to decide whether it is void (a marriage subject to nullification) or an invalid marriage (where the court can give no help).

He reviews the law set out in the Marriage Act 1949 (as amended) and the Matrimonial Causes Act 1973 and the extensive subsequent case law. From this, he summarises the legal test that needs to be met if this was a void marriage:

  1. “Thus it seems to me that a clear and powerful line of authority emerges from the line of cases to the effect that this court must consider on the specific facts of this case whether what the parties did can properly be evaluated as an attempt to comply with the formalities required in English law to create a valid marriage.”

Human Rights

There is much discussion of the Human Rights Act and related international conventions. While nothing in this law has directly determined the judge’s decision, it has influenced him as he explains in paragraph 93.

I found paragraph 83 of this section particularly important, and have quoted it below.

  1. “Article 12 has not been expressly relied upon by Mr Le Grice QC as he accepts that the domestic law can properly impose formalities as to marriage. In this the attorney general agrees. Article 12 primarily addresses the rights of individuals to marry without appearance from the state.

    This however it seems to me there may be circumstances where Article 12 also has relevance in terms of its horizontal effect.

    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. Once she had embarked on the process going through the Nikah ceremony and consummating the marriage, notwithstanding Ms Rhone-Adrien’s assertion that she could have left the marriage at any stage, the reality for this wife and I suppose many others in her situation is that this was not a realistic option for her.

    Thus if this marriage is not a valid marriage according to English law nor a void marriage she is left without the remedies which arise from divorce or nullity. It seems to me this must be a relevant consideration in the evaluation of whether on these facts this should be treated as a void marriage.

    Although usually deployed in the context of property rights, the equitable maxim that equity treats as done that which ought to be done and that equity focuses on intent not form (see Snell’s Equity 33rd edition 5-015) seems to me capable of informing how the court might approach the interpretation of section 11 or its application.

    Whilst the equitable maxim cannot it seems be used to create something which is only capable of legal creation by fulfilling statutory conditions (i.e. a legal interest in land cannot be created unless section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 are met) it can create equitable rights.

    In this case it could not create a valid marriage but seems to me this approach supports the conclusion that in determining whether on the facts of this case whether what happened created a void marriage I can treat the joint intention of the parties to undertake a civil ceremony which was not then seen through by the husband’s [sic] as supporting the conclusion that this was a void marriage”

The emphasis in the last sentence has been added by me.

Conclusions on the Law and its application to this case

The judge summarises the legal position as follows:

  1. “The starting point in relation to the interpretation and application of section 11 of the Matrimonial Causes Act 1973 [which specifies when a marriage is void] must therefore be the net result of the series of cases considered by Moylan J (as he then was) in MA v JA (above).
    1. Unless a marriage purports to be of the kind contemplated by the marriage acts it will not be within section 11
    2. What brings a ceremony within the scope of the act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis (see for instance K v K [2016] EWHC 3380, [2017] 2 FLR 1055).
    3. The court should take account of the various factors and features mentioned above including particularly, but not exhaustively:

        (a) whether the ceremony or event set out or purported to be a lawful marriage;

        (b) whether it bore all or enough of the hallmarks of marriage;

        (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;

The judge then goes on in paragraph 93 to explain how the human rights arguments have influenced his thinking.

It is clear to me that by now Justice Williams wants to find for W, but obviously only if there are legal grounds for doing so.

The essence of the judge’s conclusion is in paragraph 94 and I have italicised what I consider to be the key words.

  1. “Incorporating those considerations into the starting point leads me to conclude that the approach should be somewhat more flexible in particular to reflect the Article 8 rights of the parties and the children.
    1. Unless a marriage purports to be of the kind contemplated by the Marriage Act 1949 it will not be within section 11. What brings a ceremony within the scope of the Act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis. When considering the question of a marriage the court should be able to take a holistic view of a process rather than a single ceremony
    2. The court should take account of the various factors and features mentioned above including particularly, but not exhaustively:

        (a) whether the ceremony or event set out or purported to be a lawful marriage including whether the parties had agreed that the necessary legal formalities would be undertaken;

        (b) 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;

        (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage

        (d) 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 then summarises his thinking in paragraph 95 below.

  1. “Applying that approach to the facts as I have determined them leads to the following conclusions.
    1. It was understood by both the husband and wife that they were embarking on a process which was intended to include a civil ceremony in which the marriage would be registered,
    2. The wife’s understanding and the husband’s expressed position was that this civil ceremony was to follow shortly after the Nikah ceremony
    3. The failure to complete the marriage process was entirely down to the husband’s refusal after the Nikah ceremony had been undertaken to take action to complete the marriage process by arranging the civil ceremony.
    4. The wife thereafter frequently sought to complete the marriage process by seeking to persuade the husband to undergo a civil ceremony.
    5. The nature of the ceremony which was in fact undertaken bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry
    6. thereafter the parties lived as a married couple for all purposes
    7. the couple were treated as validly married in the UAE.”

The above is the basis for his decision that this is a void marriage (which allows W to receive a degree of nullity but also, and more importantly, allows W to receive the redress that the divorce law can grant.)

My comments on the decision

I have three main comments.

Is this a recognition of Shariah in English law?

In my view, the answer is a categorical no.

The judge was crystal clear that the nikah did not create a valid marriage.

Even the nikah with the unfulfilled promises made by H did not create a valid marriage. A valid marriage could only have come about if the couple had engaged in a civil law wedding.

All that the judge decided was that a particular pattern of conduct on the facts of this particular case (the nikah, living together as man and wife for an extended period including having four children, and most critically the unfulfilled promises by H to effect a civil wedding ceremony) together meant that the couple’s relationship was a void marriage rather than an invalid marriage.

There was never any possibility of the judge finding that the couple had a valid marriage.

The public policy implications

I suspect that many campaigners in behalf of Muslim women trapped in nikah-only relationships will be celebrating because in this case W has come under the protection of English divorce law covering finance, children’s rights etc.

In my view, such celebration is a mistake.

If the judgement stands, I suspect that more Muslim women will foolishly enter into nikah-only relationships in reliance upon this decision. However, that will mean that they are relying for divorce protection in English law upon a fact-based determination which could go either way if their relationship breaks down.

In this case, there were many strong factual findings in favour of W. Many other cases will not be as strong, and litigation is often an expensive lottery.

My advice to Muslim women contemplating marriage remains unchanged. First engage in a civil marriage ceremony, and only then engage in a nikah with your future husband.

Entering into the nikah first effectively makes you the hostage of any badly-behaved man, as happened in this case.

The only responsibility of the judge was to do justice for the two litigants before him. He has obviously sought to provide a remedy for W, which in moral terms is clearly just.

However, in terms of overall public policy, this is a terrible decision since it will lead to more hardship being suffered in the future by more Muslim women.

If the decision correct in law?

Strictly speaking, the decision of Justice Williams is the law of the land. The legal fiction is that judges do not make law, they simply tell you what the law has always been.

Accordingly, the judgement means that a nikah plus a certain collection of subsequent behaviours, to be determined factually on a case-by-case basis, can have the effect of creating a void marriage.

In my opinion, although I am not a lawyer, the decision is wrong in law.

With the amount of existing statute around the subject of marriage, in my opinion when it is clearly established that there never was anything tantamount to a civil marriage ceremony, finding that a nikah plus a pattern of behaviour can create a void marriage is stretching the law too far.

It is clear from the judge's own findings that nobody involved thought that the nikah created a valid marriage. Accordingly, W cannot rely on that nikah ceremony.

Instead the judge can only find for her by adding to the nikah H's promise that a civil wedding would be carried out. Based on the judge's review of the law, living together publicly etc. can at best create a rebuttable presumption that there has been a valid or void marriage, and in this case there is sufficient evidence to rebut that presumption.

The Attorney General was a party to the case. My legal knowledge is insufficient for me to know whether the Attorney General has the legal right to appeal the decision. If he does have the right to appeal, I would expect the Attorney General to do so.

I would then expect the Court of Appeal, or the Supreme Court, to rule in favour of H on the grounds that, as a matter of law, a fact pattern of the kind found in this case can create only an invalid marriage and not a void marriage.

If the Attorney General cannot appeal, I would expect H to appeal if he has the financial resources to do so. Similarly, if H does appeal, I would expect the higher courts to overturn this decision.

 

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