Victoria Roberts recently appeared on behalf of an intervenor in the Court of Appeal on the question of whether a decree of nullity could be granted for an Islamic marriage ceremony.
AG v Akther / Khan v Hussain / Southhall Black Sisters, Court of Appeal [2020] EWCA Civ 122
This article addresses the validity of “non / invalid marriages” which was raised in the first instance decision of Williams J, reported as [2018] EWFC 54, and subsequently appealed by the Attorney General to the Court of Appeal (Sir Terence Etherton, the Master of the Rolls, King LJ and Moylan LJ) reported as [2020] EWCA Civ 122. Victoria Roberts appeared on behalf of an intervenor (Ms Hussain).
The case concerned a husband and wife who underwent an Islamic marriage ceremony in England in December 1998 (a Nikah ceremony).
The wife petitioned for divorce. The husband defended the divorce on the basis that the parties had not entered a marriage that was valid according to English law.
There were two central questions before the lower court:
- (a) Are the parties to be treated as validly married under English law by operation of a presumption of marriage?
- (b) If not, is the marriage a void marriage, susceptible to a decree of nullity (section 11(a)(iii) Matrimonial Causes Act 1973).
The main issue in this case was whether the Nikah ceremony that the parties entered into created a void marriage, or an invalid/non-marriage. Where parties divorce following a valid marriage, or have a void or voidable marriage annulled, the court can make financial orders to redistribute property. The court cannot grant a decree of nullity nor can it make such financial orders following an invalid/ non-marriage.
At first instance, Williams J decided that on the facts of this case the Human Rights Act 1998 and the European Convention on Human Rights had changed the way that courts had previously considered this area of law, because of the consequences of any decision for the couple (in societal, moral, religious and financial terms) and for any children.
In the Court of Appeal it was argued on behalf of Ms Hussain who was represented by Charles Hale QC, Victoria Roberts, Michael Edwards and Harry Langford that, in undertaking an analysis of the degree to which “certain requirements” under the Marriage Act 1949 have not been complied with, it was for the court to interpret that provision through the prism of fundamental rights in light of the personal consequences of the conclusion as to status, and the consequences of the remedy that flows or does not follow from the determination of that status. The consequences of a finding of non-marriage are stark in the absence of a finding of a void marriage for a proposed claim for a financial remedy (in the absence of children where Schedule 1 may be available perhaps only leaving a claim under TOLATA).
Other arguments advanced included the fact of the joint intention to subsequently marry in a way capable of being a valid marriage under the law of England and Wales at the time of the Nikah ceremony. In such cases, it is all too easy for one party to later say that they never intended to have a ceremony which gave them legal status as husband and wife: what is important, it was argued, is to consider what the parties intended at the time of the Nikah.
It was argued that the best interests of any relevant children are a primary consideration because of the consequences that flow for any application for financial remedy.
It was further argued that the parties’ Article 8 ECHR rights were engaged by reference to:
- 1. The right to marry under Article 12 ECHR which, it was said, is engaged in circumstances where there is a joint intention to legally marry because:
(i) There is a public interest in recognising marriages because of the resulting obligations and rights consequence to that status; and
(ii) Intention is a factor which can, with other factors, be sufficient to make a marriage potentially valid under English law, when taken together with a ceremony that is sufficient.
- 2. Article 1 of Protocol No. 1 of the ECHR is engaged, because a wife in these circumstances would have a legitimate expectation to a claim for financial remedy, amounting to an “existing possession” which is protected by the Convention.
- 3. Article 14 ECHR, which prevents discrimination, is breached because non-Church of England couples are treated less favourably under the existing law, and because there is no objective justification for that less favourable treatment.
As an aside, the equality issue was considered in the context of divorce law in Teresa May’s ‘Independent Review into the application of Sharia Law in England and Wales Paper’ (February 2018) see in particular, page 5 of the report which states that:
“It is also proposed that there should be minor amendments to legislation on divorce through changes to the Matrimonial Causes Act 1973. This would be changes under section 10 A to ensure equality amongst all religions. The review recommends a short insertion into the section to bring Islamic divorce in line with that of the Jewish Get. The inclusion of a Muslim marriage by Nikah could be inserted in Section 10 A (1) (a) (ii) through the use of a Statutory Instrument following the provisions of subsection 6.
By linking Islamic marriage to civil marriage it ensures that a greater number of women will have the full protection afforded to them in family law and the right to a civil divorce, lessening the need to attend and simplifying the decision process of sharia councils”.
Judgment was handed down by the Court of Appeal on 14 February 2020.
The Court held that:
The issues to be determined were as follows:
- (i) Whether there were ceremonies or other acts which did not create a marriage, even a void marriage, within the scope of section 11 of the Matrimonial Causes Act 1973; and
- (ii) if there were, whether the December 1998 ceremony was such a ceremony, currently described as a “non-marriage”, or whether, as Williams J decided, it created a void marriage.
The court would address issue (i) firstly by considering the legal position without reference to the human rights arguments, which had led Williams J to adopt a more flexible approach, and then by considering those arguments and whether they supported the approach he took. The court would then address issue (ii).
As an aside, the court expressed some disquiet with the use of the term “non-marriage” and therefore adopted the use of a “non-qualifying ceremony”.
On issue (i), the court held that it was clear that there could be ceremonies which did not create a marriage, or even a void marriage, within the scope of the 1949 and the 1973 acts and which did not, therefore, entitle the parties to a decree of nullity.
As regards the arguments under the European Convention on Human Rights, firstly, even if a “wife’s” claim to a share of what would otherwise be matrimonial assets amounted to property rights, Article 1 of the first protocol to the convention could not be engaged because the gateway to such property rights is through the right to a decree of divorce or a nullity.
The right to marry under Article 12 was not applicable, since it did not cover a situation where a marriage was declared void. The petitioner did not possess any type of private law right against the respondent requiring him to marry her lawfully or have any claim against him for refusing to do so.
Significantly, the court held that an agreement to marry did not give rise to legal rights and no action could arise for its breach.
The determination of whether a marriage was void could not be wholly or in part dependent on future events, such as the intention to undertake another ceremony or whether there were children (the court holding that the status of the parents’ relationship made no difference to the legal status of the children of the parents in any event). The interests of children could play no part in a determination as to whether a ceremony was a non-qualifying ceremony or was a void marriage, so that the judge’s approach was not supported by either the European Convention or the United Nations Convention on the Rights of the Child.
Since the failure to grant a divorce was excluded from the scope of the Convention, including Article 8, a failure to grant a right to a decree of nullity had also to be excluded.
As to issue (ii), the court had reached the conclusion that the December 1998 ceremony had not created a void marriage because it had been a non-qualifying ceremony. The parties were not marrying “under the provisions” of part II of the 1949 Act: the ceremony was not performed in a registered building, no notice had been given to the superintendent registrar, no certificate had been issued and no registrar or authorised person had been present.
The effect of a ceremony of marriage had to be determined as at the date it was performed. The parties’ intentions provided no legal justification for changing the effect of the only ceremony which in fact had taken place. In the circumstances, there had been no ceremony in respect of which a decree of nullity could be granted pursuant to section 11 of the 1973 Act.
The Law Commission is currently undertaking a review of the law relating to marriages and the formal legal requirements to get married.
Victoria Roberts
Link to judgment:
https://www.bailii.org/ew/cases/EWCA/Civ/2020/122.html
Victoria Roberts is a member of the Family and Business & Property teams at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.