Rebecca Probert comments on the High Court of Justice of England and Wales’ recent decision on the Akhter v. Khan case. The case is one example of the ongoing examination of the legal status of Islamic marriages and divorces under UK law.
The key problem with the decision in Akhter v Khan and the Attorney General – as with much of the commentary and many of the cases on non-marriage – is the failure to engage with the actual terms of the Marriage Act of 1949. Whether or not a marriage is void depends on whether the conditions set out in either section 25 (for Anglican marriages) or 49 (for all other marriages) have been met. Ever since 1823, a marriage has only been void if the parties ‘knowingly and wilfully’ flout certain formal requirements (broadly those relating to notice, the place of marriage, and the presence of a person authorised to register the marriage). The category of non-marriage was developed to deal with those cases where the parties had flouted all of those requirements but had done so innocently.
In this case the parties had indeed failed to comply with any of the requirements set out in the Marriage Act: unlike the parties in MA v JA, they had not married in a mosque that was registered for marriage. But they were fully aware that their Islamic ceremony would not be legally recognised. This was of course why the wife kept asking the husband to go through a civil ceremony. So although it could be argued that the marriage was rightly declared to be void as they had indeed knowingly and wilfully flouted the law, the fact that they had ignored all of the legal requirements would seem to take it outside the scope of the Marriage Act altogether.
The implications of this are problematic, and the real challenge will come when the court is faced with a couple who have gone through a similar ceremony that they thought was legally binding. Since such a couple would not have knowingly and wilfully flouted the law, a court would be barred from holding their marriage to be void. If in the wake of Akhter the option of non-marriage is no longer available – and it would of course be deeply unfair to deny a couple who believed themselves to be married the same legal remedies as a couple who knew they were not – then such a marriage would have to be held to be valid. So Akhter, while not recognising an Islamic marriage as valid, does at least contain reasoning that might lead to this result in another case. What is needed now is for the Law Commission to undertake the review that its 2015 scoping paper showed to be necessary: a complete overhaul of marriage law is essential so that there is no longer any doubt as to the status of marriages conducted in England and Wales.
Rebecca Probert is a Professor of Law at University of Exeter Law School.