Category: Human Rights

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.

Judges:

Williams J

Citations:

[2018] EWFC 54, [2019] 1 FLR 575, [2018] WTLR 729, [2019] 1 FCR 24, [2019] Fam 247, [2019] 2 WLR 771

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 11(a)(iii)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Her 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 16 October 2022; Ref: scu.621629

Hamalainen v Finland: ECHR 16 Jul 2014

Grand Chamber

Citations:

37359/09 – Grand Chamber Judgment, [2014] ECHR 787, [2014] ECHR 974, [2015] 1 FCR 379

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Legal Summary – Hamalainen v Finland ECHR 16-Jul-2014
ECHR Grand Chamber – Article 8-1
Respect for family life
Respect for private life
Refusal to give applicant female identity number following sex change unless marriage was transformed into civil . .

Cited by:

Cited – MB v Secretary of State for Work and Pensions SC 5-Jul-2016
The court was asked about the age at which entitlement to a pension began for someone of transgender.
Held: The court was divided, and the issue was referred to the European Court of Justice. . .
Cited – Her 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 October 2022; Ref: scu.534435

Serife Yigit v Turkey: ECHR 20 Jan 2005

A complaint as to the privileging of civil over religious marriages in Turkey was found admissible.
‘ the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition be positive obligations inherent in effective ‘respect’ for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanen v. Finland, 23 September 1994, ss 55, Series A no. 299-A). Furthermore, in the sphere of the State’s planned economic, fiscal or social policy, on which opinions within a democratic society may reasonably differ widely, that margin is necessarily wider (see, mutatis mutandis, James and Others, cited above, ss 46). This applies also in the present case (see paragraph 82 above).
As to the applicant, she chose, together with her partner, to live in a religious marriage and found a family. She and O.K. were able to live peacefully as a family, free from any interference with their family life by the domestic authorities. Thus, the fact that they opted for the religious form of marriage and did not contract a civil marriage did not entail any penalties – either administrative or criminal – such as to prevent the applicant from leading an effective family life for the purposes of Article 8. The Court therefore finds no appearance of interference by the State with the applicant’s family life.
Accordingly, the Court is of the view that Article 8 cannot be interpreted as imposing an obligation on the State to recognise religious marriage. In that regard it is important to point out, as the Chamber did (see paragraph 29 of its judgment), that Article 8 does not require the State to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, ss 68). For that reason the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social security legislation, does not imply that there has been a breach of her rights under Article 8.’

Citations:

3976/05, [2010] ECHR 1672, (2011) 53 EHRR 25

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Cited – Her 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 October 2022; Ref: scu.384108

Johnston and Others v Ireland: ECHR 18 Dec 1986

Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
The applicants were an unmarried couple who could not marry, and so legitimate their daughter, the third applicant, because the Irish Constitution did not permit divorce. They relied on article 14 in conjunction with article 8, arguing that they had been discriminated against on grounds of their limited financial means, since (had they been better off) they could have obtained a divorce by the expedient of a spell of residence outside the Republic.
Held: The complaint was rejected in short measure: ‘Article 14 safeguards persons who are ‘placed in analogous situations’ against discriminatory differences of treatment in the exercise of the rights and freedoms recognised by the Convention. The court notes that under the general Irish rules of private international law foreign divorces will be recognised in Ireland only if they have been obtained by persons domiciled abroad. It does not find it to have been established that these rules are departed from in practice. In its view, the situations of such persons and of the first and second applicants cannot be regarded as analogous.’
the ECtHR said: ‘ . . the Court agrees with the Commission that the ordinary meaning of the words ‘right to marry’ is clear, in the sense that they cover the formation of marital relationships but not their dissolution. Furthermore, these words are found in a context that includes an express reference to ‘national laws’; even if, as the applicants would have it, the prohibition on divorce is to be seen as a restriction on capacity to marry, the Court does not consider that, in a society adhering to the principle of monogamy, such a restriction can be regarded as injuring the substance of the right guaranteed by Article 12 (art. 12). (our emphasis)
Moreover, the foregoing interpretation of Article 12 (art. 12) is consistent with its object and purpose as revealed by the travaux preparatoires. . . In the Court’s view, the travaux preparatoires disclose no intention to include in Article 12 (art. 12) any guarantee of a right to have the ties of marriage dissolved by divorce.
The applicants set considerable store on the social developments that have occurred since the Convention was drafted, notably an alleged substantial increase in marriage breakdown.
It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions (see, amongst several authorities, the above-mentioned Marckx judgment, Series A no. 31, p. 26, ss 58). However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate.’

Citations:

[1986] ECHR 17, 9697/82, [1986] 9 EHRR 203, ECLI:CE:ECHR:1986:1218JUD000969782

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 814

Jurisdiction:

Human Rights

Cited by:

Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Her 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Family

Updated: 15 October 2022; Ref: scu.164961