The High Court here in London has recently considered the status of an islamic marriage, that did not comply with all the usual formalities required in England & Wales. It has generated a lot of confused and confusing headlines – the marriage has been reported as both valid and void, as ‘covered by’ English law (but not necessarily all islamic marriages) and as the first example of our courts recognising sharia law… Here are a selection of headlines we’ve found :

Confused?

Yes, so were we.

Unfortunately, the judgment is unlikely to help as its mind-bendingly tricky. But, if you are a glutton for punishment here it is : Akhter v Khan (Rev 2) [2018] EWFC 54 (31 July 2018). Below, we will try and give a reasonably accurate summary of what it is that all these contradictory headlines are trying to explain (but we’re leaving off the bells and whistles). Although we are often critical of newspapers for dodgy headlines and legally inaccurate reporting, this IS a tricky one to cover in a short news item without descending into achingly dull legal detail or introducing inaccuracy. Inevitably though, some of the above media organisations have made a better fist of it than others.

Early in his judgment, the judge said :

What this case is not about … is whether an Islamic marriage ceremony … should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely, whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.

To understand what is going on in this judgment and the headlines you need to understand a bit about the terminology that is being used and confused. This case involved the court making a decision about whether the ‘marriage’ was

  • A valid marriage
  • A void marriage
  • A non-marriage
  • (there is also a fourth category of voidable marriage but that doesn’t really feature in this judgment)

A void marriage might sound like is should be just another name for a non-marriage, but they aren’t the same. You may wonder why the parties need to argue about the distinction between a void marriage and a non-marriage. The reason is financial: parties to a void marriage can still make financial remedy claims against one another, whereas the parties to a non-marriage cannot. If the marriage was valid or void Mrs Akhtar could claim a share of the family assets. If it was a non-marriage she was, to use the vernacular, stuffed (she’d be unable to make any claim against the family assets). Mr Khan argued (rather unattractively) that the marriage wasn’t a marriage at all, and she was therefore not entitled to bring a financial claim at all.

Having heard all the evidence, and legal argument from both parties’ lawyers and a lawyer instructed by the Attorney General, the judge concluded that the marriage was not valid and was not a non-marriage, but it was void. This means that Mrs Akhtar can pursue a claim for a share of the family assets. The confusion in the headlines where it is suggested that the marriage is ‘valid’ probably arise from the fact that the consequence of there being a void marriage is that Mrs Akhtar CAN bring her claim – so it’s valid in the sense that it is good enough to found a claim.

What about the claim that the court has done something novel here?

Well, disputes about whether a marriage is valid for the purposes of English law often have to be resolved by the courts – the judgment in this case sets out various examples of that. Sometimes these queried marriages will have been conducted in England and sometimes abroad, sometimes they will have been civil ceremonies and sometimes religious ones (of all religions). One example older readers may recall was the marriage on a Bali beach of Mick Jagger to Jerry Hall, which was found by the English High Court to be void and was annulled (the couple were reported to have resolved their financial matters by consent at the time). Many many muslim couples who have married in islamic ceremonies will have been able to bring a claim for financial remedies in the English Family Court without difficulty, either because the validity of the marriage is not challenged or because the court has concluded the marriage is valid or void.

In spite of the prominent headlines about sharia law being recognised or accepted, this case isn’t about sharia law at all. The religious or defective ceremony could just as easily have been [EDITED AND CORRECTED – SEE COMMENTS BELOW] one that was conducted under any other religion that does not comply with the formalities of Englsih civil law. In finding the marriage to be void in English law the English court has not ‘recognised’ Sharia law for the first time. Marriages conducted according to the laws of other countries and religions have been potentially recognised by English courts for many years. The judge here was deciding nothing about Sharia law, but about whether what happened in this particular case fell within the rules set out in English law about what is and isn’t a valid marriage.

In this case the couple had undergone an islamic ceremony in England, and the intention (at least on the wife’s part) had been to follow that with a civil ceremony. Ultimately that never happened because, it appears, the husband kept ducking it. The couple remained together for almost 2 decades and raised four children, behaving to all intents and purposes as if they were man and wife. Their marriage had been accepted as valid in Dubai when they had moved to live there for a time. The court had to decide what the consequences of all this were. There was really no serious argument that the marriage was valid – the only issue was whether it could be said to be void (and therefore trigger a right to bring a money claim).

It’s really quite difficult to explain the difference between a void marriage and a non-marriage – and in fact this is quite a difficult legal issue where the answers remain quite unclear – but in general terms the distinction seems to be around how far off the marriage has deviated from the requirements of a lawful marriage under English law. Mr Justice Williams thought that the marriage of this couple was a marriage that didn’t comply with the formalities rather than one that couldn’t even be called a marriage at all. In reaching his conclusion he considered various parts of the Human Rights Act and the legislation and case law that defines what is and is not accepted as a valid marriage in English law.

The novel feature of the case is the way in which the judge relied upon and used the Human Rights Act to get to the point where he concluded that a marriage that was (we think) quite far off being a regular marriage should be held acknowledged as existing but void, in order to found a claim for financial relief. The judge relied upon parts of the Human Rights Act which require it to interpret legislation as far as possible so it is compatible with the parties’ human rights (in this case rights around marriage and property and family life). When s11 Matrimonial Causes Act 1973 (the bit of law which defines what is and isn’t accepted as a marriage), the marriage was a marriage, just not a valid one. The suggestion that s11 should now be interpreted in a flexible way potentially has implications for other couples who are divorcing, but whose marriage ceremony had some flaws in it – but that is of potentially wider application and certainly not confined to islamic ceremonies.

The judge also makes an interesting reference to the ‘horizontal effect’ of Article 12 right to marry. Horizontal effect is a fancy lawyer’s way of saying that one person owes a human rights duty towards another person (usually human rights apply to individual people but the protection is from state interference rather than another individual). He says

However it seems to me there may be circumstances where Article 12 also has relevance in terms of its horizontal effect. In this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying and has thus left her in the situation where she does not have a marriage which is valid under English law the husband himself has infringed her right to marry.

It’s unclear quite how that legal point feeds into the decision the judge ultimately makes, but it is one which is likely to be controversial. It is possible that this judgment will be subject to appeal, given its novel application of the Human Rights Act. If that happens we will update this post.

It is somewhat surprising that those newspapers who have suggested that this decision represents the English courts accepting Sharia Law have not also picked up on the opportunity to run a ‘human rights gone mad’ angle to the case.

Finally, references to ‘UK Law’ are wrong – Scotland has a separate legal system, which is why historically couples eloped to Gretna Green to take advantage of the more relaxed legal framework there.

So, what’s the upshot of all that? Which newspapers got it right?

We’ve focussed on the headlines rather than the actual detailed news stories in this piece. But headlines do matter. On the basis of the headlines taken in isolation we give a big round of applause to the following :

and

In the case of The Independent, for the caveat that this judgment does not necessarily mean all sharia marriages will be ‘covered’ and for avoiding confusing references to void or valid.

And in the case of The Indian Express, for being the only paper we can remember that has ever cited a piece of legislation in the actual headline!!

And we award a big fat raspberry to all the other headlines!

Further reading :

We suggest : Akhter: legal consequences of an unregistered nikah ceremony on the lawandreligionuk blog.

Transparency post script :

A further oddity of this judgment is that it includes a section of text at the top in red (called a rubric) which says the judgment was delivered in private and the family must not be named, but the judgment goes on immediately to name the husband and wife (but not the children). From twitter exchanges we’ve had with counsel for the Wife it appears this rubric was included in error and that this hearing was (as is usual in divorce matters) heard in public and the judgment was delivered in public. For the purposes of this post (and any comments) however, we will proceed on the basis that the children should not be identified. It is unfortunate that there is not legal clarity about what is and is not permissible.

Thanks to Polly Morgan and others for assistance with this post.

Heart and Ring Camdiluv on Flickr (creative commons – thanks)