Case Brief: UK Family Law Court Recognizes Unregistered Islamic Law Marriage as Void but Entitled to Protections for the Wife and Children upon Divorce (Akhter v. Khan, 2018)

Case Facts. According to the Court judgment, “The petitioner, Nasreen Akhter, issued a petition for divorce from the respondent Mohammed Shabaz Khan on 4 November 2016. The husband defended the divorce on the basis that the parties had not entered a marriage valid according to English law.” In other words, the husband was contesting the very marriage along with the divorce, arguing that an Islamic law-religious marriage (nikāḥ) not accompanied by a civil law marriage was never a valid marriage in the first place. The wife countered that, even if that were true, the court should recognize a presumption of marriage from their history of “cohabitation and reputation [as married],” and in the alternative, that the court should recognize their union as a “void marriage” within section 11(a)(iii) of the Matrimonial Causes Act 1973. The basic question the court thus takes up is “whether a Nikah marriage ceremony creates an invalid or void marriage in English law,” which determines whether the wife may seek civil law remedies available only upon findings of a type of marriage.

Laws and Regulations. UK family law distinguishes between valid marriage, void or voidable marriage, and invalid or non-marriage. In a line of cases that started in 2001, UK family court judges have interpreted the provisions of the Marriage Act 1949 and the Matrimonial Causes Act 1973 to mean that a marriage can not only be valid and void but also what has become termed a non-marriage. Valid marriages—which confer various marital benefits and provide for marital dissolution under UK law for a husband and wife—are either conducted in the UK in compliance with relevant UK laws or are shown or presumed to be conducted abroad in compliance with relevant local laws. Unions in which the parties have failed to comply with the relevant laws are void or voidable, and may be annulled by a court. Couples with annulled marriages may divide their assets or address maintenance questions upon separation. Non-marriage may apply to couples who merely exchange promises in secret, have never undergone a marriage ceremony, or who do not hold themselves out as married. Non-married couples are not entitled to any of the marriage benefits or dissolution remedies in UK law. The Human Rights Act 1998 relates to the construction of section 11 of the Matrimonial Causes Act 1973 in determining the outcome of this case. This case relates to marriages concluded according to Islamic law—which entails a marriage contract (nikāḥ), offer and acceptance of marriage between two eligible parties (along with the agreement of a guardian for women for first-time marriages), two witnesses, and a dowry as basic requirements; most Muslim-majority countries require state registration and most jurists require civil law marriages to accompany Islamic marriage contracts.

Arguments. Both parties weighed in, along with the Attorney General, Mr. Nagpal, as a first interested party. While the wife sought to prove that a presumed, and thus valid marriage, existed, the husband sought to show that there was a non-marriage not in compliance with UK law. The AG agreed with Mr. Khan, arguing that the 1998 marriage did not meet the “certain requirements” inherent in the Matrimonial Causes Act 1973. He further argued that the Human Rights Act 1998 does not affect either the interpretation or application of section 11 of the Matrimonial Causes Act 1973.

Facts and Analysis. The presiding judge, Mr. Justice Williams, began his analysis by noting that the couple had considered themselves married, having concluded a marriage according to the religious precepts of Islamic law in 1988, and thus referred to them as husband and wife—despite the husband referring to their ceremony as a “blessing.” In addition to analyzing the case according to the couple’s description of their marriage ceremony (nikāḥ) and noting its basic validity under Islamic law, the judge noted that a reception (walīma) and civil law ceremony were planned but never undertaken, and that the couple not only held themselves out as married during an 18-year union but that they also cohabited, had children, and were understood by the religious and broader community as married. Further, the judge noted that they were considered married under UAE law while living in Dubai from 2005 to 2011. He also noted the public interest and broader policy interests in the case: “The fact that some of the issues which are present in this case have been the subject of 'The Independent Review into the application of Sharia Law in England and Wales' which was commissioned by Theresa May when she was the Home Secretary illustrates the potential wider public interests of itself.”

Judgment. The justice concluded that, on the facts and the UK laws on marriage—as interpreted, for the first time, through the Human Rights Act 1998 and the best interests of the child—the marriage was a void marriage, to which the wife was entitled to a decree of nullity. That is, she was not validly married, nor was her union considered a non-marriage, and instead it was what Islamic law would determine a “defective marriage.” Having validly concluded an Islamic law marriage (nikāḥ) but not a UK or other state civil law marriage; having lived with a man with whom she cohabited for 18 years and had children; and the couple having held themselves out as being married, Akhter and Khan had what might be termed a “semblance of marriage”—albeit void—that entitled the wife to take advantage of UK civil law remedies for maintenance and child custody upon dissolution.


Case Holding & Noteworthy Excerpts

Mr. Justice William considered the apparent intentions of both parties as a part of his analysis.

¶ 22        The Wife is intelligent, measured careful. She was spontaneous in many respects – recalling in considerable detail the pre-wedding preparations, the night before, the ceremony itself and her dowry. She is more diligent and anxious to be accurate. She has a greater regard for the importance of frankness and honesty – her approach is detailed and methodical. She is the sort who likes things to be by the book. Hence her detailed will drafting, her love of the law and her request for Islamic jurisprudence books as a dowry. The husband's case that she has made up the discussions over the civil ceremony at the time of the wedding, and that she has made up every subsequent reference to it do not seem consistent with the general nature nor with her general demeanour in giving evidence. In general her evidence appeared more consistent with known fact and contemporary documents and appeared more connected to lived experiences than fabricated.

¶ 24        I am satisfied that she asked for a civil registration on various occasions. I doubt she would press her case particularly hard given her nature and his but I am satisfied it was discussed both shortly after the Nikah ceremony and for instance in 2001 when they changed their daughter's name. Later it may have just been in passing. His evidence about the Walima being discussed several years after the marriage supports her account that these shortcomings were still live in her mind and as he brushed off the Walima with 'it's too late now; so I conclude he would have done with the civil registration.

¶ 25       Husband is more casual in his approach generally, although capable of being very careful not to say manipulative and evasive when faced with questions or material, he can clearly identify as being hostile to his interest. Bluff, genial, a bit of a charmer. Capable of being dishonest when sees it is adverse to his interests to tell the truth and is untroubled by this. He was obviously dishonest in relation to the second marriage issue. I need to give myself a Lucas direction in respect of his evidence. I accept that the fact that he lied about the second wife issue does not mean that he is lying about everything else or even anything else. However his general approach to matters of formalities, or the need for accuracy was far less evident than the wife's. He was casual in relation to the accuracy of documents, in particular the Nikah certificate which he took responsibility for obtaining. It was submitted to the Dubai authorities even though he knew that it was inaccurate.

¶ 26        He does not like to commit – preferring more general answers than specifics. I think he prefers to keep his options open, wanting freedom of action to do as he thinks fit at the time rather than tying himself down. I thought his general personality suggested that he was motivated by looking for an edge or an advantage for him. What was in it for him?

The judge concluded that, notwithstanding the wife’s stated interest in a civil ceremony, the fact was that she did not in fact secure one after the nikāḥ, that the walīma never took place because the husband deemed it no longer in his interest.

¶ 27        Unfortunately, from the wife's point of view she being of a trusting and compliant nature had allowed matters to go too far to then be able to insist that a civil ceremony was undertaken. I accept that it had been her genuine expectation that the Nikah ceremony would have been followed in a very short space of time by a Walima and by a civil ceremony arranged by the husband. I accept her evidence that she viewed the Nikah as only a part (albeit a significant part) of a broader process which she expected would include the civil ceremony as a less important but integral component of the whole. I accept her evidence that she and the husband had discussed the expectation that there would be a Walima and a civil ceremony in the weeks leading up to the wedding. I also accept that her father spoke to the husband about it as of course did the Imam. I cannot accept the husband's evidence that the issue simply never arose between him and the wife. I therefore conclude that he either intended prior to the Nikah ceremony to organise the Walima and the civil ceremony but subsequently saw no advantage to him in seeing them through or that he led the wife to believe that he would undertake them but never truly intended to go through with it.

The judge nevertheless concluded that the parties had intended for nikāḥ to be accompanied by a civil ceremony and walīma at the time they had the nikāḥ ceremony, and thus that the couple should be married.

¶ 28.       Either way at the point when the Nikah ceremony was undertaken it was the parties' intention and the expectation of the close family that it was the first stage in a process that would have included the civil ceremony and the Walima. I'm also satisfied that the question of the civil ceremony was returned to at various stages over the 18 years that passed subsequently in particular when M's birth was registered and concluding when the wife was drafting the husband's will at the time they were contemplating the purchase of 216 Uxbridge Road.

¶ 29        Thus in every sense save for the issue of legal validity this was a marriage and a long one at that. It commenced with an agreement between the parties that they wished to marry each other and an understanding between them that they would undertake a Nikah, a civil ceremony and a Walima. Both parties were lawfully able to marry each other. Both gave their consent (I leave aside the question of whether the wife's consent was obtained by misrepresentation of the husband's intentions in relation to the Walima and civil ceremony). The ceremony was undertaken in front of the important members of their family and community. It was witnessed. It was conducted by an official in the religion which bound their consciences. Because of the husband's actions the process which both had intended was not completed by the Walima and the civil ceremony. The wife committed herself emotionally religiously and physically to the marriage within a matter of days. This was followed by 18 years during which they considered themselves husband and wife. Every other person in their family and community considered them to be husband and wife. State authorities such as hospitals and schools (and I presume tax and benefits authorities), in England probably treated them as husband and wife. The state authorities of the United Arab Emirates treated them as husband-and-wife. The marriage produced four children. The trust was shattered by the husband's proposal to take a second wife and thereafter the marriage limped to a conclusion in 2016.

At the start of his analysis, the judge made the following observations, signaling his eventual conclusion, favorable to the wife and to some recognition of Islamic law marriages under UK law on grounds of UK family law and human rights law.

Intro        [T]he application of the term non-marriage to cases such as that before me feels instinctively inappropriate. For most purposes the relationship will have been accepted as a marriage by the parties, the community, and very probably various emanations of the state (schools, hospitals, possibly benefits or tax authorities). That it has come to be called a non-marriage in a sense illustrates the conundrum in this case. The use of any other word to describe the marriage for instance invalid, unlawful, non-compliant, void tends to lead to the conclusion that it was not valid and so might be thought capable of annulment.

On the question of a presumption of marriage, he concluded that there was no valid marriage under UK law:

¶ 41        [T]he presumption of marriage does not operate on the facts of this case so as to presume a valid marriage under English law.

On the questions of non-marriage and a void marriage subject to court annulment (decree of nullity), the judge determined that the Human Rights Act 1998 was valid, and did—contrary to the AG’s position—apply to UK family law. Considering the relevant facts, laws, and interpretive legal canon—citing an “equitable maxim” that equity treats as done that which ought to be done and that equity focuses on intent not form—the judge ultimately concluded that the couple had a void marriage subject to court annulment.

¶ 56        [I]t 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.

¶ 57        It is an essential part of the wife's case that in undertaking that evaluation and in interpreting section 11 of the Matrimonial Causes Act 1973 this court should take into account fundamental rights under the ECHR as brought into effect by the Human Rights Act 1998. Mr Le Grice QC points out that in none of the previously decided cases has any reference been made to arguments under the HRA 1998. He accepts that in AB v HT that Mr Justice Jonathan Baker made some reference to human rights but he submits and I agree that that case was not centrally about human rights issues and the references to them are limited.

¶ 57        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. [H]owever 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 as supporting the conclusion that this was a void marriage. [Emphasis added]

¶ 90        Does the State's interest in certainty of marriage which thus points to a narrow interpretation of section 11 of the Matrimonial Causes Act 1973 and more restricted application to each case outweigh the State's interest in marriage as an institution which confers various benefits on the participants and the interests of individuals and children in at least identifying such situations as void marriages? Whilst I appreciate Mr Nagpal's point on behalf of the Attorney General that a void marriage indicates it was void from its inception (i.e. was never a marriage at all) and thus is indistinguishable from a non-marriage in terms of legal status there is plainly a difference in ordinary perception but also in the remedies which flow from the different status.

¶ 91        It seems to me that the net effect of my conclusions on the fundamental rights arguments points in favour of an interpretation of section 11 which allows more flexibility. I do not consider that this extension is inconsistent with the wording of the section itself or carries the existing interpretation much further.

¶ 94        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.

              a. 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

              b. 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

¶ 95        Applying that approach to the facts as I have determined them leads to the following conclusions.

              a. 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,

              b. The wife's understanding and the husband's expressed position was that this civil ceremony was to follow shortly after the Nikah ceremony

              c. 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.

              d. The wife thereafter frequently sought to complete the marriage process by seeking to persuade the husband to undergo a civil ceremony.

              e. 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

              f. thereafter the parties lived as a married couple for all purposes

              g. the couple were treated as validly married in the UAE.

¶ 96        On the basis of my slightly more flexible interpretation of section 11 of the Matrimonial Causes Act 1973 informed by fundamental rights arguments and taking into account the factors outlined above I therefore conclude that this marriage falls within the scope of section 11 and was a marriage entered into in disregard of certain requirements as to the formation of marriage.

¶ 97        It is therefore a void marriage and the wife is entitled to a decree of nullity.


Related Articles

SHARIAsource FEATURE :: Roundtable on Islamic Family Law in the UK: Akhter v. Khan (July 2018) [Aug. 23, 2018]

SHARIAsource SYMPOSIUM :: On “The Independent Review into the application of Sharia law in England and Wales” by the UK Home Office, with Shaheen Sardar Ali (University of Warwick) & Ralph Grillo (University of Sussex) [Mar. 19, 2018]

Ralf Michaels, “Islamic Marriage and English Divorce—A New Decision from the English High Court,” Conflict of Laws [Aug. 2, 2018]

Siddique Patel and Peter Morris, "Does Akhter v Khan mean that English Law now recognises Shariah Marriages?" Shoosmiths [Aug. 7, 2018]

"How should the law deal with religious marriages?" The Economist [Aug. 17, 2018]