That marriage creates certain rights and obligations goes without saying. The legal definition of marriage, however, remains contentious, especially in multicultural, religiously diverse and legally pluralistic states and societies where legal and religious definitions of marriage may differ. The complexity of the issue is exacerbated when courts have to balance private and public interests while adjudicating matrimonial disputes.
The ostensible simplicity but legal complexity of marriage is depicted in the case of Ms Nasreen Akhtar. When she was getting married in 1998, she could have hardly imagined that her marriage would be subjected to judicial scrutiny twenty years later. Her husband, Mr Khan had promised her that the religious ceremony of their wedding would be followed by a civil ceremony as required by English law. Such ceremony, however, did not take place even after the lapse of two decades during which four children were born to them. When their relationship broke down, Ms Akhtar filed a suit for divorce to secure her financial rights. Mr Khan defended the suit on the basis that their unregistered nikāḥ ceremony was not a valid marriage under English law. In her reply, she contended that her unregistered nikāḥ was a valid marriage based on the presumption of marriage arising out of cohabitation and reputation as spouse. The Family Division of the High Court, however, did not accept Ms Akhtar’s argument and held that her unregistered religious marriage was void under English law.
This would normally be the end of the matter but, in this case, the Court granted Ms Khan financial remedies despite rejecting her argument as to the validity of her marriage. This was so because English family law recognizes financial rights of parties even when their marriage is declared void for disregarding legal requirements. Such marriage does not confer all the rights of a valid marriage, which include status of spouse resulting in tax benefits and proprietary entitlement to pensions and inheritance. This is an advantageous aspect of English family law as it does not punish people who inadvertently fail to comply with the procedural requirements of the law. This benefit, however, is not extended to couples who exchange their vows to live together as spouses in a religious ceremony or who simply cohabit. Their relationship may give rise to certain legal rights or obligations under English law of contracts, property or trusts, but English family law does not recognize their “marriage”, not even as a “void marriage.” The judges have coined the term “non-marriage” for such relationships which do not have any legal consequences, which they likened to wedding ceremonies in a soap opera or in a children’s play.[1] Therefore, when Justice Williams of the Family Division of the High Court declared that Ms Akhtar was entitled to financial rights under her void marriage, it was a deviation from established legal principles.[2] Press coverage described this judgment as “recognition of sharia law” under the English legal system.[3]
Given the public importance of this judgment, the Attorney General challenged it before the Court of Appeal. The Court accepted the appeal and held that an unregistered religious ceremony of marriage was “a non-qualifying ceremony” with no legal consequences at all. In their unanimous judgment, three judges of the Court made it absolutely clear that statutory English law supersedes all other norms based on private agreements, social practices or religious ceremonies. They justified this view by holding that the marital status of individuals is important not only for them, but also for the state because marriage creates a variety of rights. As the main objective of state regulation of marriage is to ensure certainty of these rights, legal formalities for the registration of marriages should not be taken lightly and must be strictly followed.
The Court regarded the registration of marriage a matter of “public interest” and rejected the argument that the strict legal requirements of marriage registration could be softened, either through the application of the principles of equity or human rights law. In his judgment, Justice Williams referred to two equitable maxims: “equity treats as done what ought to be done”; and “equity focuses on intent not form.” He also referred to the relevant provisions of human rights law which included: Article 8 (right to respect for private and family life) or Article 12 (right to marry), of the European Convention on Human Rights, and Article 1 (right to peaceful enjoyment of property) of the First Protocol to the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.
The judgment of the Court of Appeal in this case is symptomatic of the inadequacy of statutory English family law to meet the needs and requirements of a culturally and religiously diverse society in contemporary England and Wales. While state enforced law has accommodated the religious marriage of Christians and Jews,[4] it still regards similar marriage ceremonies of other religious communities such as Muslims, Hindus and Sikhs as “non-marriage.” The judges of the Court of Appeal realised the inappropriateness of the term “non-marriage” and suggested that the legal consequences of unregistered religious marriages should be described as “non-qualifying ceremony”. They, however, fell short of analyzing the current legal framework on unregistered religious marriages under Article 14 (prohibition of discrimination) of the European Convention on Human Rights.
In this judgment, the Court of Appeal has dashed the hopes of women’s rights activists who were encouraged by a gender egalitarian and flexible interpretation of statutory law in various recent judgments.[5] Such strict interpretation was clearly and boldly manifested in the judgment of Justice Williams of the Family Division of the High Court in Ms Akhtar’s case.[6] By strictly interpreting the relevant legal provisions, the judges of the Court of Appeal appear to have operated under the mistaken assumption that couples who did not register their marriages under the law and thus “knowingly and willfully” flouted the law, want to have “more rights” than the ones who complied with the law.[7] While making this argument, the judges seem to have conflated the distinction between a valid marriage and a void marriage in order to distinguish these types of marriages from the so-called “non-marriages”—a dubious category with no basis in statutory law.[8] In doing so, the judges rejected the opinion of Justice Williams that courts should take a holistic view of marriage as a process rather than a single ceremony by taking into account the intentions of the parties and surrounding circumstances.
This judgment has clarified that for a marriage to have legal effect under English law, parties should go beyond voluntary exchanges of consent to solemnize their union in public—the essence or hallmark of a marriage. In light of this judgment, such voluntary exchanges of consent are not sufficient to create a legal relationship of marriage. To enter into a legally recognizable marriage, the parties need to follow certain formalities of the law by either giving notice or marrying in a place authorised for marriage. Otherwise, their marriage ceremony will be nothing but a children’s play.
Notes:
[1] Nasreen Akhter v. Mohammad Shabaz Khan [2018] EWFC 5 at para. 45.
[2] A.M. v. A.M. [2001] 2 FLR 6; Gandhi v. Patel [2002] 1 FLR 603; El Gamal v. Al-Maktoum [2012] 2 FLR 387; Al-Saedy v. Musawi [2011] 2 FLR 287; Dukali v. Lamrani [2012] EWHC 1748 (Fam.), [2012] 2 FLR 1099; Sharbatly v. Shagroon [2012] EWCA Civ. 1507, [2013] 1 FLR 1493.
[3] Kate McCann, British court recognises sharia law in landmark divorce case, The Telegraph (Aug. 1, 2018), https://www.telegraph.co.uk/news/2018/08/01/british-court-recognises-sharia-law-landmark-divorce-case/.
[4] In Gereis v. Yagoub [1997] 1 FLR 854 a purported ceremony of marriage at a Coptic Orthodox Church, unlicensed under the marriage Act 1949, was held to be a void marriage because it “bore the hallmarks of an ordinary Christian marriage and both parties treated it as such.”
[5] In Asaad v. Kurter [2013] EWHC 3852 (Fam.), [2014] 2 FLR 833, the judge described the religious ceremony of nikāh as “not ‘so deficient’ that it can be described in English law terms as a ‘non-marriage.’” In MA v. JA [2012] EWHC 2219 (Fam.), [2013] 2 FLR 68, the judge upheld as valid a marriage performed in a registered mosque though the parties did not give a notice to the registrar and as a result no marriage certificate was issued.
[6] Nasreen Akhter v. Mohammad Shabaz Khan [2018] EWFC 5.
[7] Id. at para. 45.
[8] In Hudson v Leigh [2009] EWHC 1306 (Fam), [2009] 2 FLR 1129, despite finding as void under the South African law the religious ceremony of a Christian marriage which was planned to be followed by a civil ceremony in London, the judge declared it as non-marriage under English law. Valentine Le Grice QC, ‘A Critique of Non-Marriage’ [2013] Fam Law 1278 (arguing that statutory law does not give the court power to declare a ceremony as a “non-marriage”).