(Image Credit: Flickr/Kamal Zharif)

Regular readers may recall that in August 2018, I wrote about the case of Akhtar v Khan, which held that the Islamic marriage ceremony (Nikah) between Ms Akhtar and Mr Khan was a ‘void’ marriage rather than a ‘non-marriage’ and thus entitled Ms Akhtar to claim financial relief.

This was a potentially significant decision for Muslim couples who undertook a Nikah but did not then register their marriage under English Law.

However, the decision of the High Court has now been reversed by the Court of Appeal, who confirmed that in the absence of a valid civil marriage ceremony under the Marriage Act 1949, the Nikah was not recognised as a ‘marriage’ under English Law, and thus was not capable of being adjudicated upon.

The High Court had previously found that Ms Akhtar and Mr Khan conducted a Nikah ceremony in 1998 in a restaurant in Southall, West London. The Nikah was officiated by an Imam in front of family and friends. Both parties intended for the Nikah to be followed by a civil ceremony because they both knew and understood that their Nikah was not valid in English law.

However, Mr Khan refused to follow through with this agreement, despite repeated requests from Ms Akhtar. The couple lived together as husband and wife, have four children together before the marriage ended in 2016.

Given those facts, the High Court took the view that rather than treat the marriage as ‘invalid’, it was considered to be ‘void’ – a void marriage is one that is considered never to have taken place for some reason; in this case, the judge found that to be so because certain requirements as to the formation of marriage were disregarded (here, the requirement for a civil ceremony).

However, significantly, where a marriage is void, rather than invalid, it can be nullified, and a party can still seek financial and maintenance orders from the court.

After the decision of the High Court, Ms Akhtar and Mr Khan reached a settlement. However, an appeal was pursued by the Attorney General, who had been involved in the original decision. He argued (and the Court of Appeal agreed) that the 1998 Nikah ceremony was a ‘non-qualifying ceremony’ in that it did not comply with the essential elements of the Marriage Act 1949.

Moreover, the parties knew that it did not comply with English law and knew that they needed to undergo a further civil ceremony thereafter. Therefore, at the time that it was made, it was not and could not be considered a valid (or a void) marriage.

The decision of the High Court had placed emphasis on what occurred after the marriage, and in particular on Ms Akhtar’s continued attempts to conduct a civil marriage ceremony.

The Court of Appeal considered that the decision on the legal effect of a ceremony was one to be considered at the time that it was conducted; to allow its legal effect to change based on subsequent events would undermine the certainty that was required for both the parties and the state to know whether a valid marriage had occurred.

The Court of Appeal, therefore, rejected the ‘holistic’ approach taken by the High Court when considering the intentions of the parties to undertake a civil ceremony. In this case, there had not been a ceremony which complied with or intended to comply with, the requirements of the Marriage Act 1949.

The Court of Appeal emphasised that it was not difficult for parties who wanted to be legally married to achieve that status through a civil ceremony. The fact that this had not occurred here was fatal.

The outcome of this decision is that the law has reverted back to the previous position with regards to Nikah; that is, that it is no more than a religious ceremony, which has no legal standing. A couple who wish their marriage to be recognised in English Law must also undertake a civil ceremony which complies with the requirements of the Marriage Act 1949.

Following the decision of the Court of Appeal, there have been a number of calls for reform – it has been suggested that the marriage provisions are no longer fit for purpose and should be widened to include all manner of faith marriages. This would permit the parties (and in particular, the financially weaker party) to seek financial remedies in the event of a breakdown in the relationship even if a civil ceremony had not taken place.

Such a view is not without its opponents however, and it remains to be seen whether such calls will result in any meaningful reform.

Safia Tharoo
Barrister, 40 Bedford Row, London