Muslim Non-Marriages

Divorce & Matrimonial Finance

17 February 2020

Hall v Jagger; Akhter v Khan: void, voidable and non- marriages.

In 1999, Jerry Hall and Mick Jagger separated and in a move heralding a long and acrimonious legal battle, Jagger sensationally released a public statement saying that he would be contesting Jerry Hall’s petition for divorce on the grounds that he and Jerry Hall were not and never had been married!

The Hindu wedding ceremony in Bali, it emerged, was never recognised in Indonesia because it had not complied with the necessary legal requirements. A legal battle ensued, and the High Court accepted the wedding was not valid under either Indonesian or English Law and declared the wedding void.

This was a pyrrhic victory, as Jerry could now re file for a declaration that the ceremony of marriage was, in fact, a nullity.  She could then make the same claims for financial relief as she would in a divorce.

Last week the Court of Appeal ruled that Islamic faith marriages,  were not so lucky and are not valid under English Law as they were not a qualifying ceremony.

According to Mrs Akhter, whose Islamic Marriage ceremony or “nikah” was conducted by an Iman in front of 150 guests in a restaurant in 1998, she knew the ceremony had no legal effect and the couple had intended to follow it with a civil ceremony, but that her “husband” had refused to go through with the legal process, despite frequent efforts by her to persuade him.

Mrs Akhter brought divorce proceedings in the High Court in 2016, asking the court to declare the marriage void because it had not complied with the various procedural requirements necessary to make it valid.

Mr Khan contended that the ceremony had no legal effect and therefore Mrs Akhter was not entitled to a divorce

The High Court ruled that the Akhter-Khan marriage had been “entered into in disregard of certain requirements as to the formation of marriage. It is therefore a void marriage and the wife is entitled to a decree of nullity”.(Akhter v Khan [2018]EWFC 54 )

After the High Court ruling Mrs Akhtar and Mr Khan reached a settlement and they played no part in the Appeal, which was brought by the Attorney General.

The Appeal Court judgement overturned the earlier High Court ruling that an Islamic marriage fell within the scope of English matrimonial law.

There are three categories of marriage, valid, void and non-marriage.

Valid marriages ( entered into in accordance with the Marriage Act 1949) may be ended by a decree of divorce.  On the breakdown of a marriage, parties are entitled to seek the wide range of financial provision, including maintenance, pension sharing and attachment orders and property adjustment orders under the Matrimonial Causes Act 1973, Part II.

Voidable or void marriages occur where parties have not complied with the requirements of a valid marriage.  These unions may be annulled as being a marriage that is void or voidable and they may be ended by a decree of nullity.  It will be open to either party to apply for financial provision.

Non-marriages did not ever legally exist.  In these cases, the parties cannot apply for financial remedies under the MCA 1973.

The Court of Appeal, made up of three judges, including the Master of the Rolls, Sir Terence Etherton,  in up -holding the existing concepts of what constitutes a lawful marriage  found  that nikah’s are non – marriages.  The parties did not marry under the provisions of English Law “no marriage ceremony took place in respect of which a decree of nullity could be granted”.

The Appeal court noted that the lower court had bent over backwards to reach a  fair outcome (a trend I identified in my  previous articles) with Sir Terence commenting:

“with respect to the judge, who was clearly seeking a route which he understandably believed would lead to a fair outcome for Mrs Akhter that is to say the ability to make an application for financial remedies for herself , we do not consider that his approach can withstand analysis”.

This means partners in a Muslim marriage have no redress to the courts for a division of matrimonial assets, such as pensions, maintenance and assets in the other parties’ sole name, if the relationship breaks down.

The Court of Appeal concluded that to uphold the high court’s ruling “would gravely diminish the value system of registration of marriages upon which so much depends in a modern community”.

The Court of Appeal also noted that  “it would not be difficult for parties who wanted to be legally married to achieve that status” ( by going through a civil ceremony).  A requirement generated by the Marriage Act 1949.

In 2018 an independent review of Sharia councils recommended that Muslim couples should undergo a civil marriage as well as a religious ceremony to provide protection under the law.

This ruling reinforces the need for a civil ceremony to ensure couples are legally married.

Whilst the ruling has provided clarity and emphasises the need to enter a civil ceremony first, a significant number of Muslim couples do not register their marriages, and importantly, some Muslim women may have no option of obtaining a civil marriage (as in Mrs Akhter’s case), which means they have no option of obtaining a civil divorce.  How are they to be protected.

The ruling has left thousands of Muslim women, who believed they were lawfully married, with limited redress in the event of a relationship breakdown and will be a frightening outcome as many will now be at financial risk in unhappy relationships.

They are in fact in the same position as cohabitees, many of whom have been in long relationships and have children. They can make claims under trust law for their property rights to be identified pursuant to Trust Of Land And Trustees Act 1996, but that jurisdiction is far more limited than the Matrimonial Causes Act; in particular, the court has no rights to adjust property ownership only to recognise and enforce existing rights.

They can also make Child Support Act claims and claims under Schedule 1 Children Act 1989 if they have children, but that is usually only temporary relief while the children are dependants and with very  limited scope for financial relief for the parent.

As is often the case for cohabitees, the longer the relationship has subsisted the worse the position for the economically weaker party.

They can also pursue Islamic divorces under Sharia Law.  However, this does not afford women the same financial protection as would be granted if their ceremonies were recognised as marriages under English Law, and in many instances is considered an unaccountable and fundamentalist inspired community based systems of religious arbitration that causes significant harm to women and children. They are not courts of law and their rulings are based purely on religion.

Raghad Altikriti, president of the Muslim Association of Britain, has said many Islamic Centres in the UK have made civil registration a condition of nikah marriage. She says that the Appeal Court ruling provided an “opportunity to continue the discussion to ensure that everybody’s rights are protected by facilitating a comprehensive system that incorporates the needs of all”.

In a modern, multicultural society will this ruling bring more pressure to bear on the law makers to make changes to reflect a more progressive, contemporary society, and from a religious, cultural and moral perspective? Many people have of course over a long period (wrongly) believed in the concept of the “common law marriage” perhaps reflective of the same view of fairness as the High Court judge.

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