Today the Court of Appeal handed down judgment in Attorney-General v Akhter & ors  EWCA Civ 122. The full judgment may be found at:
The Court of Appeal allowed the Attorney-General’s appeal from the decision of Williams J  EWFC 54. His judgment is at:
The Court of Appeal held that the family court had no power to grant a decree of nullity in relation to an Islamic nikah or marriage ceremony which took place in a restaurant in London, and which was supposed to have been followed by a civil wedding ceremony which did not take place because one party refused. This means that on the breakdown of the relationship, the couple would not be able to seek financial orders from the family court to deal with the family finances.
The family court has power to make financial orders, adjusting the pension and property rights and ordering the payment of maintenance etc, on the grant of a decree of divorce, nullity or judicial separation. Nullity cases are rare – whereas divorce operates to dissolve or end a valid marriage, a nullity petition involves a claim that the marriage itself is invalid. But some marriage ceremonies are more invalid than others. For many years, the law of England and Wales has distinguished between a ceremony that purported to comply with the legal formalities required to create a valid marriage under the law of the land, and a ceremony which did not amount even an attempt to comply with those formalities. The former such ceremony might be a valid marriage, or a void marriage, depending on the circumstances. If valid, it could be dissolved by a decree of divorce; if void, it could be the subject of a decree of nullity. In both cases, the family court would have power to make financial orders to achieve a fair division of the family’s wealth on the breakdown of the relationship.
The courts have refused to grant a decree of nullity in cases where no valid marriage has been created by a marriage ceremony and where there had been no attempt to comply with the formal requirements necessary to create a valid marriage. In general, unless the couple are intending to get married in an Anglican church, they must give notice of marriage at a local register office; the service must take place at a place which is authorised under the Marriage Act 1949 as a venue at which weddings can take place; the wedding must take place in public in the presence of at least two witnesses; the ceremony must include specific wording; and the wedding must take place in the presence of a superintendent registrar or a person authorised under the Marriage Act.
Many couples are able to get married in a religious ceremony where they give notice of marriage and the wedding is held in a registered building, ie a place of worship which has been approved under the Marriage Act, and takes place in the presence of an authorised person, usually the person who leads religious ceremonies that take place in that place of worship.
In contrast, where a couple want to get married or enter into a civil partnership at a local register office, or in ‘approved premises’ (eg a stately home or other venue which has been approved as a wedding venue), the ceremony must be entirely secular and not have any religious content.
The law therefore allows a couple to have a completely non-religious marriage; have a religious ceremony at a registered building, or have their own religious ceremony followed by, or preceded by, a separate civil wedding.
There are very many Muslim couples who enter into an Islamic marriage ceremony or nikah which could not amount to a valid marriage under the law of the land. This is because no notice of marriage is given before hand, the venue is not a registered building, or the ceremony does not take place in the presence of an authorised person. Relatively few Muslim places of worship have been registered as registered buildings such that a wedding taking place there could give rise to a valid marriage under the law of England and Wales. What, then, is the status in law of those who enter into a nikah without complying with some or all of the formalities required by the Marriage Act 1949?
The Court of Appeal has confirmed that such a ceremony is neither a valid marriage, nor a void marriage. For some time, such a ceremony has been referred to as a ‘non-marriage’, even though the couple are married in the eyes of their religion and their community. Williams J had considered the term to be pejorative, and the Court of Appeal agreed, and held that the term non-qualifying ceremony should be used instead. Because it is a non-qualifying ceremony and not a void marriage, the court cannot grant a decree of nullity, and cannot then go on to make financial orders to deal with the financial issues.
Williams J had granted a decree of nullity on the facts of this case. The Attorney-General had been invited to intervene in the proceedings before him, and argued that the ceremony was what we would now call a non-qualifying ceremony. Williams J rejected that argument and held that it was a void marriage. He did so because:
(i) although the couple knew that the nikah itself was not effective for them to be married in the eyes of the law, it was part of a process intended to include a civil ceremony, and that process was not completed because one of them then refused to enter into a civil ceremony; and
(ii) although the law had been clear that a nikah by itself in these circumstances would be a non-qualifying ceremony and not a void marriage, the effect of Articles 8 and 12 of the European Convention on Human Rights, and Article 3 of the United Nations Convention on the Rights of the Child, allowed him to take a more flexible view of the court’s ability to grant a decree of nullity.
The Attorney-General appealed. The parties to the original decision by Williams J, Ms Akhter and Mr Khan, then settled their financial disputes and did not oppose the appeal, and took no further part in the proceedings. An advocate to the court was appointed to assist the court to ensure that all the relevant arguments were put before the court, but in the end the advocate effectively supported the appeal. Two other parties intervened: (i) a woman who had brought her own nullity proceedings who had an interest in the outcome of the appeal; and (ii) Southall Black Sisters, an organisation providing information advice and support to black minority ethnic women which also undertakes campaigning work. Michael Horton of Coram Chambers represented Southall Black Sisters.
The Court of Appeal:
(i) confirmed that the concept of a ‘non-marriage’ or non-qualifying ceremony was part of the law, and rejected submissions that it should be discarded;
(ii) held that a ceremony such as the one in this case, held in a restaurant which was not approved premises, in the absence of an authorised person, and which was not preceded by the giving of notice of marriage, was a non-qualifying ceremony. It did not matter that the intention had been for it to be followed by a civil ceremony;
(iii) ruled that Article 1 to the First Protocol to the ECHR did not require a different conclusion. A claim to financial remedies on divorce might amount to a ‘possession’ for the purposes of A1P1, but until the court has granted a decree, there is no right to apply for financial remedies. To argue that the denial of such a claim was a breach of A1P1 would be to put the cart before the horse;
(iv) held that the judge had been wrong to place reliance on the ‘horizontal effect’ of Article 12, the right to marry. Article 12 was simply not engaged – there is no right to divorce under Article 12, and there can be no right to nullity under Article 12;
(v) held that there was no breach of Article 8, the right to respect for family and private life. The European Court of Human Rights had confirmed that a refusal to recognise a religious marriage as a valid marriage did not amount to a breach of Article 8;
(vi) confirmed that an action for nullity was not an action ‘concerning children’ for the purposes of Article 3 of UNCRC, and the status of the wedding ceremony could not be affected by whether or not the parties later had children.
The intervention by SBS
On behalf of SBS, it was argued that:
(a) the total non-recognition of religious marriages (not even as void marriages) operated to the detriment of women and children, by locking them out of the family justice system and forcing them to use unsatisfactory community or religious based ‘courts’ or arbitration systems;
(b) the concept of a non-marriage was, in the context of religious marriages, discriminatory, pejorative and not part of the law;
(c) there was no binding Court of Appeal authority requiring the court to endorse the concept of non-marriage or non-qualifying ceremony; and
(d) non-compliance with the formal requirements under the Marriage Act 1949 lead to different legal results depending on the religion of the parties and the ceremony they undertake. Some defective Anglican ceremonies would be recognised as valid or void, whereas in similar circumstances but where the parties were Muslim they would be held to be merely a non-qualifying ceremony. One form of religious ceremony preceded by deficient formalities will be either valid or void; another form of religious ceremony preceded by defective formalities is termed a ‘non-qualifying ceremony’;
(e) the difference in status based on religion therefore amounted to a breach of Article 8 or A1P1, in conjunction with Article 14.
The Court of Appeal, as seen above, rejected, the attack on the concept of ‘non-marriage’, albeit that they have now renamed the concept to be ‘non-qualifying ceremony’. They also rejected the human rights arguments that were relied on before Williams J at first instance. However, they did not decide on the new human rights arguments introduced into the appeal by Southall Black Sisters and the other intervener: it was not considered necessary or appropriate for these arguments to be considered in dealing with the appeal.
It remains to be seen whether an appeal may be made to the Supreme Court, or whether the Article 14 arguments might be redeployed on another occasion.
14 February 2020