Akhter v Khan [2018] EWFC 54. UK Family Court finds Islamic marriage (nikah) as falling within the scope of the English Matrimonial Causes Act of 1973.

This post has been contributed by Professor Mashood A. Baderin, Module Convenor for Introduction to Islamic law.

Family3An Islamic marriage (nikah) solemnised in the UK does not, by itself, qualify as a legally valid marriage under UK law. Thus, most Muslim couples who undertake an Islamic marriage in the UK would normally complement it with a civil marriage ceremony to ensure that their marriage is legally valid under UK law, resulting in what is often illustratively described as “double-decker” marriage. In situations, where an Islamic marriage is not complemented by a civil marriage ceremony, the dissolution of such marriages and the scope of rights of women in such marriages have been contested in a number of well-known cases in the past, such as Shahnaz v Rizwan (1965) 1 QB 390 and  Qureshi v Qureshi (1971) 1 All ER 325 amongst others. For an early analysis of such cases see David Pearl’s “Muslim Marriages in English Law” (1972) 30 Cambridge Law Journal, No.1 pp.120-143.

This issue relating to the status of Islamic marriages in UK courts resurfaced in the recent case of Akhter v Khan [2018], which concerned an Islamic marriage solemnised between the parties in 1998. The parties had referred to themselves as husband and wife throughout their relationship and were considered as legally married while living in the United Arab Emirates between 2005 and 2011. They had frequently spoken about having a civil marriage ceremony to give their marriage legal validity under UK law, but this was never done. In November 2016, the wife issued a petition for divorce under English law, but the husband contested the petition on grounds that there was nothing to dissolve under English law as the parties had not entered a legally valid marriage in accordance with English law. In her reply, the wife averred that the presumption of marriage arising out of cohabitation and reputation should be recognised and applied to validate the marriage. She also averred in the alternative that the marriage should be considered a “void marriage” within section 11(a)(iii) of the English Matrimonial Causes Act of 1973 and thus susceptible to a decree of nullity under the law. In hearing the petition, the judge identified that the two main questions to be answered were:

  1. Are the parties to be treated as a validly married couple under English law by operation of a presumption of marriage?
  2. If not, is the marriage a void marriage, susceptible to a decree of nullity?

In seeking to answer these questions, the judge applied what he described as a “slightly more flexible interpretation” of section 11 of the Matrimonial Causes Act of 1973 to the facts, and held that even though there was no civil marriage ceremony and the nikah did not qualify as an English marriage, the failure to complete the marriage process through a civil marriage ceremony was as a result of the husband’s refusal, although the wife had sought to complete the process by asking the husband to do so. The judge noted that the nikah ceremony bore the hallmarks of a marriage even though it was not legally valid under English law, bearing in mind that the parties lived as a married couple for all purposes and that they were treated as validly married in the United Arab Emirates where they had lived for some time.  In paragraphs 95-97 of the judgement, the learned judge noted:

“Applying that approach to the facts as I have determined them leads to the following conclusions:

  1. It was understood by both the husband and wife that they were embarking on a process which was intended to include a civil ceremony in which the marriage would be registered;
  2. The wife’s understanding and the husband’s expressed position was  that  this civil ceremony was to follow shortly after the Nikah ceremony;
  3. The failure to  complete  the  marriage  process  was  entirely  down  to  the husband’s  refusal  after  the Nikah ceremony  had  been undertaken  to  take action to complete the marriage process by arranging the civil ceremony;
  4. The wife thereafter  frequently  sought  to  complete  the  marriage  process  by seeking to persuade the husband to undergo a civil ceremony;
  5. The nature of  the  ceremony  which  was  in  fact  undertaken  bore  all  the hallmarks of a  marriage in that it was held in public, witnessed, officiated by an  Imam,  involved  the  making  of  promises  and  confirmation  that  both  the husband and wife were eligible to marry;
  6. Thereafter the parties lived as a married couple for all purposes;
  7. The couple were treated as validly married in the UAE.

On the  basis  of  the  slightly  more  flexible  interpretation  of  section  11 of  the Matrimonial  Causes  Act 1973  informed  by  fundamental  rights  arguments  and  taking into  account  the  factors  outlined  above,  I therefore  conclude  that  this  marriage  falls within the scope of section 11 and was a marriage entered into in disregard of certain requirements as to the formation of marriage. It is therefore a void marriage [as opposed to a non-marriage] and the wife is entitled to a decree of nullity”.

 

Read a summary and discussion of the Judgment here

Read the Full Judgment here

Read BBC report of the case here

QUERY: Does the decision in Akhter v Khan change the legal status of Islamic marriages in under English law?

 The decision in Akhter v Khan has been understood variously by different commentators, with some suggesting that Islamic marriages have now been recognised as valid void marriages under English law, and thus opens the way for Muslim women to freely pursue their Islamic law divorces in English courts. That view tends to stretch the decision in the case too far.

The  question of whether or not it can be said that this case means that English courts now recognise Islamic marriages as valid marriages under English law is discussed by Siddique Patel and Peter Morris in their article: “Does Akhter v Khan mean English Law now recognise Shariah marriages?” , which is a recommended reading on the subject.

 

 

 

 

 

 

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.