Following the efforts of Williams J to grant a decree of nullity as opposed to a finding of non-marriage in relation to an Islamic marriage, Mark Ablett discusses and clarifies the outcome of the much-publicised case of Akhter v Khan [2018] EWFC 54.

The factual background to this case is set out in a detailed chronology at [20] of the judgment. For the purposes of this blogpost, it assists to note that the parties undertook an Islamic marriage ceremony in 1998; it was accepted that this did not create a valid English marriage. Like many Islamic marriages up and down the country, the ceremony would need to be followed up by a civil ceremony that complied with the formalities set out in the Marriage Acts 1949 to 1986. Unsurprisingly given the nature of the case, the Attorney General was an interested party. The issue was thus whether the marriage ceremony that took place was sufficient to create a marriage, a void marriage or a non-marriage. This should be distinguished from other related cases where marriages a void for example on the basis of bigamy.

In circumstances where there is not a valid marriage, the court has to ask itself whether there is a void marriage pursuant to s.11 Matrimonial Causes Act 1973 (in this case, s.11(a)(iii)), or a non-marriage. The crucial difference is that with a non-marriage, there is no marriage and never was. With a void marriage, although it is considered to be void ab initio, when it is declared void it is susceptible to a decree of nullity. Reliant on a decree of nullity, a party can apply for a financial remedy even though there was in theory no actual marriage.

Just to complicate matters, a marriage can also be voidable under to s.12 MCA 1973; one notable difference between void vs voidable is that a voidable marriage is treated as if the marriage had existed up until the point that it was made void.

There is a wealth of case law on the matter that pre-dates Akhter v Khan. This case law applies both to considering whether a marriage is void or a non-marriage in terms of formalities but also addressing the long history of the presumption of marriage. The conclusions of Williams J on the law can be found at [92] and [94] (in summary):

1. Unless a marriage purports to be of the kind contemplated by the Marriage Acts it will not be within section 11;
2. What brings a ceremony within the scope of the Act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis and the court should take a holistic view of a process rather than a single ceremony;
3. The court should take account of the various factors and features mentioned in the caselaw. Of particular relevance for the case was whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them.

Underpinning the judge’s reasoning was a consideration of human rights arguments. He considered that in light of these rights, particularly article 8, the court must adopt a more flexible approach.

The outcome of the case is well known and the judge’s application of his approach to the facts is set out at [95]. For the avoidance of doubt, although reported as such in some of the nation’s newspapers, this does not mean Sharia Law is being applied in England and Wales.

There is a clear public policy desirability to religious marriages being capable of being at least void, so as to allow the financially weaker party to make a claim for a financial remedy under the auspices of section 25 rather than a more informal, out of court, mechanism. Whether Williams J has interpreted the law one increment too far may well be seen should the case be appealed.