The marriage of a woman who wed her husband in an Islamic ceremony should not have been declared void, the Court of Appeal has ruled, in a case we say could have significant consequences for marital rights.
Her Majesty’s Attorney General v Akhter and Khan concerns a decision by Mr Justice Williams, in the family court, to pronounce a decree nisi of nullity. The couple wed in an Islamic ceremony which took place in a London restaurant in 1998. They knew the ceremony had no legal effect and intended to follow it up with a civil marriage ceremony compliant with English law, but this did not happen.
The wife issued a divorce petition in 2016, relying on the Islamic ceremony. The husband said the couple were not legally married. The wife then relied on the presumption of marriage and, alternatively, sought a decree of nullity under the Matrimonial Causes Act 1973. The attorney general intervened in the proceedings and argued that the petitioner was not entitled to a decree of nullity because the ceremony was of no legal effect.
Williams said the court was justified in taking a ‘holistic view of a process rather than a single ceremony’ and ruled that the wife was entitled to a decree of nullity.
However, in a judgment handed down today, the appeal court said the ceremony did not create a void marriage because it was a non-qualifying ceremony. ‘The parties were not marrying “under the provisions” of part II of the 1949 Marriage Act. The ceremony itself would have been permitted under section 44 if it had met the requirements of the law and had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. It was not, therefore, a marriage within the scope of, in particular, the provisions of section 26 of the 1949 act. We would also add that the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony which complied with the requirements of the 1949 act if they were to be validly married,’ the appeal court said.
The ruling has prompted calls for marriage laws to be updated. It is an unfortunate fact that every year thousands of women, usually muslim women, take part in these types of ceremonies and believe that they are legally married. Only when the relationship sours do they discover, to their shock and amazement, that they are not legally married and that the protections that the law gives to married women do not apply to them. Due to this, these women will miss out on a fair division of their husband’s assets and will have no rights of inheritance.
The previous High Court decision had given long needed hope to many women who are going through matrimonial breakdown with their Muslim husband’s, only to discover the English law does not recognise their marriage at all. However; today’s judgement, as unwelcome as it is, confirms the old position that these women will not be protected by the courts, unless the law of the land is changed. The only body who has the power to change the law is Parliament, which will need to pass a new law to help protect these women.
The issue being discussed here relates only to Muslim marriages that are conducted inside England & Wales. Those Muslim couples who marry according to their Islamic beliefs abroad are almost always validly married and those marriages are legal in England. But couples who actually have their marriage ceremony in England or Wales without a proper registration with the Registrar of Marriages, they are the ones affected by this decision.
Although this case involves a Muslim couple, the same law applies to any other religious couple who decide to marry in England using only their religious procedure and not the official Registrar of Marriages route.
If you have questions about the validity of your marriage, you can call us on 02084017352 for advice and guidance.