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A moment of Clarity

Akhter v Khan : understanding void divorce under UK law

A High Court judge has questioned the accepted view that Islamic wedding ceremonies in this country create a ‘non-marriage’ unless accompanied by civic legal formalities.

Six in 10 women in the UK who have had a traditional Muslim wedding ceremony are not in legally recognised marriages, depriving them of rights and protection, according to a survey for Channel 4 last year.

Now a judge has ruled that the Marriage Act 1949 may be interpreted with reference to the Human Rights Act, enabling a legal non-marriage to be considered as a void marriage which can be annulled, giving the separating parties potentially equal rights to property and assets.

The ruling, which is likely to be appealed, was wrongly reported in the Press as representing a ‘recognition of Sharia Law’ by English law.

Nasreen Akhter, a solicitor, wanted a divorce settlement from Mohammed Shabaz Khan, her apparent husband of 20 years, but he blocked it, arguing that the couple were not married under English law.

The couple, both 46 and of Pakistani origin, underwent a religious wedding ceremony, known as a nikah and conducted by an imam, in west London in 1998.  
They were both aware that a civil ceremony was also required for them to be legally married in English law, and Akhter understood that Khan was going to arrange this very soon after the nikah.

However no civil ceremony ever took place despite the wife asking for it at various times during the marriage. They had four children together.

When Akhter issued a divorce petition in 2016, Khan asserted that they had never in fact been married and the petition should be struck out. The wife effectively conceded that the marriage was void, but not that it should be classed as a non-marriage.

In order for there to be a valid marriage according to English law, if a ceremony takes place in England it must comply with all the formalities of the relevant legislation. If it takes place abroad, but meets the requirements of the law of the country where it takes place, the English courts will then recognise it as valid if the couple moves here.

Past claims have foundered for instance on the wedding venue not being licensed to solemnise marriages.

Where a marriage is declared void, on grounds that some legal formalities were not observed, upon breakdown it can be annulled, enabling financial claims to be made just as in a divorce.

But where it is declared a non-marriage, because of fundamental defects in the legal process, the parties are treated as if they were merely cohabitants without any legal financial responsibilities to each other, except in relation to any children.

The judge in this case was clearly concerned about the potential injustice that this could cause and that human rights issues were engaged. He compared actors acting out a wedding scene – although they might go through most of the necessary marriage formalities, no one would say that they are actually married. By contrast where a couple had undergone a public marriage ceremony conducted by an official, witnessed by others, in which they committed themselves to each other and were then accepted as married by their family and community and perhaps having children, the term “non-marriage” would be inapt and indeed pejorative.

Mr Justice Williams said the Human Rights Act required legislation to be interpreted compatibly with human rights so far as possible. He said in this case both parties had agreed on the inclusion of a civil ceremony and the failure to complete the marriage process was entirely down to the husband's refusal to do so.

The nature of the ceremony bore all the hallmarks of a marriage and following it the parties lived as a married couple for all purposes. On balance therefore he found that this was a void marriage, not a non-marriage, and a declaration of nullity would be made.

So this does not amount to the application of Sharia law but rather a flexible interpretation of the legislation. It means that (subject to any appeal) the wife will be able to bring a financial claim for a sharing of assets, rather than the husband having to provide financial support only for the benefit of the children.

Published: 22 August 2018

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