One of the more curious aspects of English family law is that the Matrimonial Causes Act 1973 allows for financial remedies to be granted not only when the parties were validly married and seek to divorce (or judicially separate) but also in cases where the court issues a declaration of nullity. A marriage is void (and can be declared a nullity) on the grounds set out in s.11 of the MCA 1973, the first of which is that it was not a valid marriage under the provisions of the Marriage Acts 1949 to 1986. The caselaw has developed so that the following categories of ‘marriage’ can exist:
Until recently the law seemed recently settled in that unless the relevant marriage ceremony purported to, or attempted to, comply with the requirements of the Marriage Acts it would be considered to be a ‘non-marriage’ rather than a void marriage. A purely religious marriage such as a Nikah would generally be regarded as being a non-marriage rather than a void marriage, absent very unusual features. The case of Ahkter v Khan seemed to advance the law to a significant degree.
Ms Akhter and Mr Khan entered into an Islamic marriage in a public ceremony in England. They both knew that they would need to have a separate civil ceremony to be validly married, and they agreed they would go through such a ceremony in due course. For various reasons they never did so. They lived together as man and wife for some 18 years and had four children together. After they separated the ‘wife’ (as she was referred to by the judge throughout his judgment) sought a decree of nullity. The ‘husband’ argued that it was a non-marriage, not a void marriage, and there was no entitlement to a decree.
Represented by the late (and great) Valentine Le Grice QC in one of his final cases before his untimely death, Ms Akhter argued that the marriage should be regarded as being void, praying in aid rights under the ECHR. Mr Khan argued that the parties knew that they had married only in a religious ceremony and so this did not come close to being a void marriage, because the parties had not even tried to comply with the Marriage Acts. The Attorney General, intervening in the proceedings, supported Mr Khan’s case and resisted any extension to the law.
At first instance, Williams J agreed with the wife’s case (see [2018] EWFC 54). He found that there should be ‘an interpretation of section 11 which allows more flexibility’ (para [91]). In his view, the Nikah ceremony needed to be seen as part of a wider process which the parties had embarked on, including proceeding to have a civil ceremony. The husband had reneged on the agreement to have a marriage ceremony despite the wife seeking it. The parties had held themselves out as married for 18 years. On the basis of this ‘slightly more flexible interpretation’ of section 11, the court granted a decree of nullity. Ms Akhter and Mr Khan thereafter reached a financial settlement by compromise, without appealing the decision of Williams J.
The decision of Williams J gave hope to a number of women in a similar position to Ms Akhter, who would otherwise leave a potentially long religious marriage without any scope to seek financial remedies beyond any rights they may have pursuant to TOLATA in relation to property rights of Schedule 1 of the Children Act 1989 if there were dependant children. That hope has proved to be short-lived.
Despite Ms Akhter and Mr Khan compromising their case, the Attorney General appealed Williams J’s decision. Various interested parties intervened in the appeal. On 14 February 2020 the Court of Appeal (Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan) allowed the appeal and overturned the decision of Williams J (see [2020] EWCA Civ 122). In a lucid and clear joint judgment of the court, the law was compendiously reviewed. The court was evidently concerned that the law should not make it difficult for individuals to know whether they were married or not. The court stated that the current law ‘might be described as complex, [but] we would suggest that it is not difficult for parties who want to be legally married to achieve that status’ by complying with the procedure for a civil marriage pursuant to the Marriage Acts.
The Court of Appeal rejected the suggestion that all religious marriages should be considered to be within the scope of s.11. However, in terms of terminology it was preferable to refer to such ceremonies as being a ‘non-qualifying ceremony’ rather than termed a ‘non-marriage’. Such ceremonies, unless they purport to be complying with the Marriage Acts, would fall outside the categories of ‘valid’ or ‘void’ marriages, with no entitlement to any kind of decree. The court did not seek to define what ‘purport’ should mean in this context but suggested that ‘that the focus of the parties who want to marry and of those officiating at a ceremony of marriage, should be on complying with the required formalities so that they can be confident that they have contracted a valid marriage’ (para 66). The court also wholly rejected the various human rights arguments raised in support of Williams J’s conclusions.
No sooner was the door slightly opened to a broader interpretation of void marriages than it has been firmly slammed shut. If you want to be valid married (or even a party to a void marriage) you need to try to become validly married in accordance with the Marriage Acts.
- A valid marriage which can be dissolved by a decree of divorce;
- A void marriage which the court can declare to be a nullity; or
- What has become known as a ‘non-marriage’ or ‘non-existent marriage’, being some form of marriage ceremony which was neither valid nor void.
Until recently the law seemed recently settled in that unless the relevant marriage ceremony purported to, or attempted to, comply with the requirements of the Marriage Acts it would be considered to be a ‘non-marriage’ rather than a void marriage. A purely religious marriage such as a Nikah would generally be regarded as being a non-marriage rather than a void marriage, absent very unusual features. The case of Ahkter v Khan seemed to advance the law to a significant degree.
Ms Akhter and Mr Khan entered into an Islamic marriage in a public ceremony in England. They both knew that they would need to have a separate civil ceremony to be validly married, and they agreed they would go through such a ceremony in due course. For various reasons they never did so. They lived together as man and wife for some 18 years and had four children together. After they separated the ‘wife’ (as she was referred to by the judge throughout his judgment) sought a decree of nullity. The ‘husband’ argued that it was a non-marriage, not a void marriage, and there was no entitlement to a decree.
Represented by the late (and great) Valentine Le Grice QC in one of his final cases before his untimely death, Ms Akhter argued that the marriage should be regarded as being void, praying in aid rights under the ECHR. Mr Khan argued that the parties knew that they had married only in a religious ceremony and so this did not come close to being a void marriage, because the parties had not even tried to comply with the Marriage Acts. The Attorney General, intervening in the proceedings, supported Mr Khan’s case and resisted any extension to the law.
At first instance, Williams J agreed with the wife’s case (see [2018] EWFC 54). He found that there should be ‘an interpretation of section 11 which allows more flexibility’ (para [91]). In his view, the Nikah ceremony needed to be seen as part of a wider process which the parties had embarked on, including proceeding to have a civil ceremony. The husband had reneged on the agreement to have a marriage ceremony despite the wife seeking it. The parties had held themselves out as married for 18 years. On the basis of this ‘slightly more flexible interpretation’ of section 11, the court granted a decree of nullity. Ms Akhter and Mr Khan thereafter reached a financial settlement by compromise, without appealing the decision of Williams J.
The decision of Williams J gave hope to a number of women in a similar position to Ms Akhter, who would otherwise leave a potentially long religious marriage without any scope to seek financial remedies beyond any rights they may have pursuant to TOLATA in relation to property rights of Schedule 1 of the Children Act 1989 if there were dependant children. That hope has proved to be short-lived.
Despite Ms Akhter and Mr Khan compromising their case, the Attorney General appealed Williams J’s decision. Various interested parties intervened in the appeal. On 14 February 2020 the Court of Appeal (Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan) allowed the appeal and overturned the decision of Williams J (see [2020] EWCA Civ 122). In a lucid and clear joint judgment of the court, the law was compendiously reviewed. The court was evidently concerned that the law should not make it difficult for individuals to know whether they were married or not. The court stated that the current law ‘might be described as complex, [but] we would suggest that it is not difficult for parties who want to be legally married to achieve that status’ by complying with the procedure for a civil marriage pursuant to the Marriage Acts.
The Court of Appeal rejected the suggestion that all religious marriages should be considered to be within the scope of s.11. However, in terms of terminology it was preferable to refer to such ceremonies as being a ‘non-qualifying ceremony’ rather than termed a ‘non-marriage’. Such ceremonies, unless they purport to be complying with the Marriage Acts, would fall outside the categories of ‘valid’ or ‘void’ marriages, with no entitlement to any kind of decree. The court did not seek to define what ‘purport’ should mean in this context but suggested that ‘that the focus of the parties who want to marry and of those officiating at a ceremony of marriage, should be on complying with the required formalities so that they can be confident that they have contracted a valid marriage’ (para 66). The court also wholly rejected the various human rights arguments raised in support of Williams J’s conclusions.
No sooner was the door slightly opened to a broader interpretation of void marriages than it has been firmly slammed shut. If you want to be valid married (or even a party to a void marriage) you need to try to become validly married in accordance with the Marriage Acts.
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