Akhter v Khan: FC 31 Jul 2018

The petitioner issued a petition for divorce from the respondent, or alternatively a decree of nullity. The husband argued against both saying that the parties had not entered a marriage valid according to English law. W averred that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage. In the alternative, she averred that the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973.
Held: A decree of nullity was granted. The Court rejected the Petitioner’s submission that the presumption in favour of marriage applied because it denied that the court could presume a second ceremony of marriage in Dubai. Since no party sought to argue that the 1998 ceremony had created a valid marriage under English law, the judge said that this left the issue of whether it created ‘what has become termed a non-marriage’, or alternatively a void marriage which entitled the Petitioner to a decree of nullity under s. 11 of the 1973 Act.
It was ‘beyond argument that the concept of a form of marriage which was neither valid according to English law nor void had been accepted in . . . 11 cases . . . spanning a period of some 50 years’. He decided, however, that the current approach, as applied in those cases, to the question ‘of whether what the parties did can properly be evaluated as an attempt to comply with the formalities required in English law to create a valid marriage’, and was therefore ‘a ceremony within the scope of the’ legislation, must ‘be supplemented’ by his ‘conclusions in relation to some of the human rights arguments’ which had been advanced on behalf of the Petitioner.
Williams J
[2018] EWFC 54, [2019] 1 FLR 575, [2018] WTLR 729, [2019] 1 FCR 24, [2019] Fam 247, [2019] 2 WLR 771
Matrimonial Causes Act 1973 11(a)(iii)
England and Wales
Cited by:
Appeal fromHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .

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Updated: 31 March 2021; Ref: scu.621629