, also known as Attorney General v Ahkter, is an English family law Court of Appeal case concerning the validity of an Islamic ceremony of marriage. A woman who recently divorced her husband petitioned the court to determine whether the marriage, resulting from a Nikah, was void marriage or a non-marriage. The Family Court had held the marriage was void, granting her financial remedies. The Court of Appeal subsequently reversed the decision and denied financial remedies. The case received much scholarly and media attention on the requirements for marriage and the protection of vulnerable spouses.
Context
The Marriage Act 1949 and Matrimonial Causes Act 1973 set out conditions for a marriage ceremony to be recognized as valid, void, voidable or outside the Marriage Acts. A valid marriage satisfies all the conditions in the Marriage Acts; the parties may benefit from all the legal consequences such as equitable division of property and pension sharing. A void marriage fails one of the 'essential requirements' in the Marriage Act; a decree of nullity can be granted which allows the parties to get the same financial remedies as on divorce. A voidable marriage is one that can be annulled at the option of one of the parties if one of the grounds are met. A 'non-marriage' is outside the Marriage Acts, with the parties treated as a cohabiting couple.
Facts
Mrs. Ahkter and Mr. Khan had taken part in an Islamic marriage ceremony at a London restaurant in 1998. It was common ground that the ceremony did not meet the requirements of the Marriage Act 1949 and therefore was not a valid marriage. Knowing that, they had intended to follow it with a civil ceremony compliant with English law. However, no such ceremony was performed, despite Mrs. Ahkter pressing for one. The couple subsequently had three children, and the wife petitioned for divorce in 2016. The "husband" defended, and the Attorney General intervened in the proceedings.
The issue was whether the 1998 ceremony created a "non-marriage" (which Mr. Khan and the Attorney General argued), or whether it created a void marriage in respect of which a decree of nullity could be pronounced, thereby entitling the wife to apply for financial remedy orders, which Mrs. Ahkter argued. There were therefore two questions: (1) whether there were ceremonies which could create "non-marriages"; (2) if there were, whether the 1998 ceremony created a non-marriage or a void marriage.
Judgments
Family court
In NA v MSK [2018] EWFC 54, Williams J held that by reason of the husband's actions, there was no valid marriage. The starting point in relation to the interpretation and application of the Matrimonial Causes Act 1973, s11 stemmed from A v A [2012] EWHC 2219. He also considered the Articles 8 and 12 of the European Convention on Human Rights and Article 3 of the UN Convention on the Rights of the Child, stating:'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.' What brought a ceremony within the scope of the Marriage Act 1949 had to be approached on a case-by-case basis. When considering the question of a marriage the court had to take a holistic view of a process rather than a single ceremony, taking into account whether: the ceremony or event set out or purported to be a lawful marriage, including whether the parties had agreed that the necessary legal formalities would be undertaken; it bore all or enough of the hallmarks of marriage including whether it was in public, whether it was witnessed, whether promises were made; the three key participants, most importantly the officiating official, believed, intended and understood the ceremony as giving rise to the status of lawful marriage; the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them. Williams J granted a decree of nullity using this approach. Mr. Khan appealed.