HM Attorney General v Akhter & Ors [2020] EWCA Civ 122

The parties underwent an Islamic Nikah ceremony in London in 1998, knowing it had no legal effect and intending a later civil ceremony which never took place. The Court of Appeal held this was a 'non-qualifying ceremony', not a void marriage, so no decree of nullity could be granted.

Facts

On 13 December 1998, Nasreen Akhter and Mohammad Shabaz Khan participated in an Islamic marriage ceremony (Nikah) conducted by an Imam at a restaurant in London. Both parties knew the ceremony had no legal effect under English law and had agreed it would be followed by a civil ceremony to render the marriage legally recognised. The Imam had informed the Petitioner’s father that a civil ceremony would be required for legal recognition. Despite the Petitioner raising the matter with the Respondent on numerous occasions, no civil ceremony ever took place. The parties had four children, lived in England and Dubai, and separated in 2016.

The Petitioner issued divorce proceedings in 2016. The Respondent contended the parties were not legally married. The Petitioner sought, in the alternative, a decree of nullity under s. 11(a)(iii) of the Matrimonial Causes Act 1973. Williams J, at first instance, granted a decree of nullity, holding that the ceremony created a void marriage, applying a ‘more flexible’ interpretation of s. 11 informed by human rights considerations. The Attorney General appealed.

Issues

The Court of Appeal identified two issues:

1. Whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of s. 11 of the 1973 Act (the concept of ‘non-marriage’ or ‘non-qualifying ceremony’).
2. If so, whether the December 1998 ceremony was such a non-qualifying ceremony, or whether it created a void marriage entitling the Petitioner to a decree of nullity.

Arguments

Attorney General (Appellant)

The ceremony was of no legal effect. There is a threshold to be crossed before a ceremony falls within the scope of the 1949 Act; the words ‘under the provisions of this Part’ and ‘according to the rites of the Church of England’ in ss. 25 and 49 of the 1949 Act require more than the mere performance of a ceremony in England. Human rights arguments did not support a flexible interpretation of s. 11.

First Intervener (supporting the judgment below)

The 1949 Act does not preclude a finding that a marriage is void in circumstances other than those set out in the Act. A holistic approach could treat the parties’ intention to undertake a subsequent civil ceremony as bringing the process within the scope of the legislation. Article 8 ECHR was engaged given the change in legal status at stake.

Second Intervener (Southall Black Sisters)

Total non-recognition operates to the detriment of women and children. The concept of non-marriage should be confined to situations where there was clearly no intention for any form of marital relationship to be created. Article 8 and A1P1, read with Article 14, supported recognition.

Advocate to the Court

Effectively supported the appeal, particularly on the meaning of ‘under’ and ‘according’ in the 1949 Act.

Judgment

The Court of Appeal (Sir Terence Etherton MR, King and Moylan LJJ) allowed the appeal and set aside the decree of nullity.

Existence of non-qualifying ceremonies

The court held there can be ceremonies which do not create even a void marriage within the scope of the 1949 and 1973 Acts. This principle was established in R v Bham [1966] 1 QB 159 and applied in a consistent line of authority including Gereis v Yagoub, A-M v A-M, Hudson v Leigh, Dukali v Lamrani, Sharbatly v Shagroon and A v A. Section 49 of the 1949 Act only applies where parties ‘knowingly and wilfully intermarry under the provisions of this Part of this Act’, and s. 25 requires marriage ‘according to the rites of the Church of England’. These words impose a threshold requirement. The court preferred the terminology ‘non-qualifying ceremony’ to ‘non-marriage’.

Human rights arguments rejected

The court rejected Williams J’s flexible interpretation of s. 11 informed by ECHR rights:

• A1P1: The gateway to matrimonial property rights is a decree of divorce or nullity; there is no property right to bolster the human rights argument.
• Article 12: Following Johnston v Ireland and Owens v Owens, there is no Convention right to be divorced and, by parity of reasoning, no right to a decree of nullity. Article 12 was not engaged. The ‘horizontal effect’ theory failed because s. 1 of the Law Reform (Miscellaneous Provisions) Act 1970 abolished actions for breach of promise to marry.
• Article 8: Following Serife Yigit v Turkey, Article 8 does not oblige the state to recognise religious marriage. The routes into marriage under the 1949 Act are accessible and can incorporate a religious ceremony of the parties’ choosing, including a Nikah. Mere intention to effect a legal marriage in the future cannot alter the legal effect of a ceremony.
• UNCRC Article 3: A determination as to the status of parents’ relationship is not an ‘action concerning children’. The Legitimacy Act 1976 and Family Law Reform Act 1987 mean the status of children is not affected. Financial provision remains available under Schedule 1 to the Children Act 1989.

Application to the December 1998 ceremony

The ceremony was a non-qualifying ceremony because: (a) it was not performed in a registered building; (b) no notice was given to the superintendent registrar; (c) no certificates were issued; (d) no registrar or authorised person was present; and (e) the parties knew the ceremony had no legal effect and that a further ceremony was required. The legal effect of a ceremony must be determined as at the date of its performance and cannot fluctuate depending on later events or intentions. A holistic ‘process’ approach was rejected as incompatible with the statutory scheme and with s. 1 of the 1970 Act.

Implications

The decision confirms that English law recognises three categories of ceremony: valid marriages, void marriages (entitling a party to a decree of nullity and consequent financial remedies), and non-qualifying ceremonies which have no legal effect at all. The court preferred the term ‘non-qualifying ceremony’ to ‘non-marriage’.

The judgment is significant for parties who undergo religious-only ceremonies, particularly Islamic Nikah ceremonies, without satisfying the formalities of the 1949 Act. Where the ceremony is not performed in a registered building, no notice is given, no certificates are issued, and no registrar or authorised person is present, the ceremony will not fall within the scope of the 1949 Act at all, and no financial remedy jurisdiction under the 1973 Act will arise. Parties in such circumstances have no automatic legal protection on relationship breakdown.

The Court of Appeal declined to define precisely when a ceremony will ‘purport’ to be a marriage within the scope of the 1949 Act, noting that the Law Commission was conducting a comprehensive review. Practitioners should advise clients that partially compliant ceremonies produce uncertain outcomes and that certainty is best secured by full compliance with the statutory formalities. The court noted that the 1949 Act permits religious ceremonies, including a Nikah, to be incorporated into a legally recognised marriage where they take place in a registered building with the required formalities.

The judgment reaffirms the primacy of the statutory framework introduced by Lord Hardwicke’s Act 1753 and continued through the 1949 Act: the state has a legitimate and considerable interest in the certainty of marital status, and the courts will not extend the categories of void marriage beyond those expressly provided by statute. Neither the ECHR nor the UNCRC compels a more flexible interpretation. The decision leaves reform of the law to Parliament, following the Law Commission’s ongoing review.

Verdict: Appeal allowed. The decree nisi of nullity granted by Williams J was set aside. The December 1998 Nikah ceremony was a non-qualifying ceremony and did not create a void marriage within the scope of s. 11 of the Matrimonial Causes Act 1973.

Source: HM Attorney General v Akhter & Ors [2020] EWCA Civ 122