Ralph Grillo 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.
I hesitate to intervene in a roundtable on what is a complicated legal decision. As an anthropologist, not a lawyer, I find myself deeply puzzled by concepts such as ‘non-marriage’, ‘void marriage’, ‘valid marriage’, and so on, in which the law of England and Wales seemingly revels. I also hesitate to embarrass myself by revealing my ignorance, and hope legal colleagues will treat me charitably. That said, here are one or two thoughts on a case which is generating much discussion in legal circles and in the media.
My first response to the judgement was ‘how sensible!’ It seemed to me to be a valuable, common sense decision which, legally correct or not, handed out justice to the petitioner (‘the wife’ as the judge decided to call her). As the judge himself said: ‘the application of the term non-marriage to cases such as that before me feels instinctively inappropriate.’ The case is in fact a complex one with many aspects, about which I am very confused, but the judge’s principal conclusion (at paragraph 97) that the marriage was ‘void marriage and the wife is entitled to a decree of nullity’ seems sound. As Siddique Patel and Peter Morris contend:
‘The importance of this declaration of a void marriage is that as a consequence there is a decree of nullity meaning that Mrs Akhter is entitled to the same financial remedies available to married couples upon divorce’
Prof. Intisar Rabb has reached a similar conclusion: ‘Akhter and Khan had what might be termed a “semblance of marriage”—albeit void—that entitled the wife to take advantage of UK civil law remedies for maintenance and child custody upon dissolution.’ As I say, this appears (to a layperson) to do justice to the facts of the case, and the long-standing relationship between the parties. It will be interesting to see the outcome of an appeal, if any.
Some further observations. My further response on hearing about the judgement and seeing it reported in the press, was that the popular (and perhaps inevitable) interpretation that ‘Sharia law [was] recognised by UK High Court for first time in LANDMARK ruling’ (as the Express, among others, put it, 3 August 2018) was wide of the mark. Still less was it the case that ‘LAST week’s decision to accept a Sharia law ruling into a British court, is yet another highly predictable nail in the crumbling coffin of both Christianity and Western culture’ (according to the EuroWeekly News, 8 August 2018). Patel and Morris correctly note ‘the inaccurate and sometimes flagrant misreporting of the case in certain quarters of the media’ and rightly add that ‘we find ourselves in a sort of mild-level hysteria that all Shariah marriages will now be given the same status as a marriage carried out under the auspices of the Marriage Act 1949’, which, they contend is incorrect.
Again to a layperson, Akhter v. Khan would seem to have both wider and also narrower application than to Shari’a marriages alone. ‘Narrower’ in the sense that there are a number of factors in this case influencing the judge’s decision which might not occur in other instances e.g. the husband’s undertaking to register the marriage which he failed to carry out. ‘Wider’, in that potentially, I would guess, the decision might have application well beyond marriages conducted by Muslims. Points 95e and 95f of the judge’s summary look interesting and important, i.e. that
e. 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
f. thereafter the parties lived as a married couple for all purposes
I’m not sure how significant are these conclusions (compared with others that the judge summarises), but (and here I pose a question) would not this reasoning also apply to marriage ceremonies conducted in public etc, according to the rites of other religions (e.g. Sikhism) or indeed other systems of belief, e.g. humanists, or, if you will, Wiccans? Just asking.
Finally, the case (among others) reinforces my view that the law of marriage as a whole needs to be looked at, not least with regard to relationships which may be of many years duration but which have not been blessed by ceremony or legal registration. There is no ‘common law marriage’ in England, and such relationships, which are treated as ‘cohabitations’ and which are increasing in frequency in the general population, often leave partners – especially women – with little redress at law. Proposals by the Law Commission in 2011 which began to address the issues were rejected by the then government, and perhaps it is time to re-open the debate.
Ralph Grillo, University of Sussex, 20th August 2018.
Ralph Grillo is Emeritus Professor of Social Anthropology at the University of Sussex where he was formerly Dean of the School of African and Asian Studies and founding director of the Research Centre for Culture, Development and the Environment.