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 dispute, the AG now asked: ‘(i) Whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of s. 11 of the 1973 Act; and
(ii) If there are, whether the December 1998 ceremony was such a ceremony, currently described as a non-marriage, or whether, as Williams J decided, it created a void marriage.’
Held: The ceremony had not created a relationship in law which could be declared a nullity. At no time did the parties seek to effect a legal marriage and, at all times, not only the Petitioner but also the Imam and the Respondent were aware that for there to be a legal marriage it was necessary for there to be a civil ceremony. The judge’s view, that Article 8 supports an interpretation and application in favour of a void rather than invalid marriage, depended upon the couple having ‘sought to effect’ or having ‘intended’ to effect a legal marriage. The judge instead, relied upon the continuum argument, namely the parties’ agreement at the date of the Nikah that they would have a civil ceremony at some future date with the intention to effect a legal marriage. The judge’s analysis in this respect would also, again, fall foul of s. 1 of the 1970 Act.
Article 12, like A1P1, is not engaged and even if it were, there would be no breach on the facts of this case.
The decision before the court cannot properly be described as an action concerning children and we cannot see how it can be said that the best interests of a child can turn what was neither a void nor valid marriage, into a void or valid marriage. In our judgment, the action in question relates solely to the status of the adult applicant.
The court rejected the submission that the parties’ intentions can change what would otherwise be a non-qualifying ceremony into one which is within the scope of the 1949 Act. Their intentions provide no legal justification for changing the effect of the only ceremony which in fact took place.
Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan
[2020] EWCA Civ 122
Bailii, Judic
Matrimonial Causes Act 1973 11, Family Law Act 1986 58(5)(a), Law Reform (Miscellaneous Provisions) Act 1970 1, European Convention on Human Rights 8
England and Wales
Citing:
Cited – A-M v A-M (divorce: jurisdiction: validity of marriage) FD 2001
The parties had undergone a wedding ceremony under Islamic law, but not one which would constitute a marriage under UK law. H had been actively seeking to regularise the position as a matter of English law and had been advised that the parties . .
Appeal from – 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 . .
Cited – Catterall v Sweetman ConC 8-Jul-1845
. .
Cited – Kelly (orse Hyams) v Kelly 1932
Lord Merrivale P said: ‘In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage law could be played . .
Cited – Regina v Bham CCA 1965
A Mohammedan leader of a Muslim religious sect was charged with and convicted of the offence of solemnising a marriage other than in a licensed building. The service had been a Nichan in a private house, performed in accordance with Islamic law and . .
Cited – Collett v Collett FD 1968
Discussing a proposition that ‘The general tendency of the law as it has been developed has been to preserve marriages where the ceremonial aspects were in order’, Ormrod J held that: ‘The control of the formation of marriage in this country has a . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – MA v JA (Attorney General intervening) FD 27-Jul-2012
The parties had gone through a marriage ceremony, but not having given the required notice to the registrar, no marriage certificate had been issued. They now sought a declaration that the marriage was valid.
Held: The declaration was granted. . .
Cited – Greaves v Greaves 1872
. .
Cited – Risk (otherwise Yerburgh) v Risk 1951
the court had no jurisdiction to grant a decree because, under English law, the marriage ceremony which had taken place in Egypt was ‘no marriage’. . .
Cited – Gereis v Yagoub 1997
. .
Cited – Al-Saedy v Musawi FD 29-Oct-2010
The wife sought a divorce. The respondent denied that there had been any marriage recognised in law. . .
Cited – Way v Way FD 1951
Hodson, J. said: ‘Questions of consent are to be dealt with by reference to the personal law of the parties rather than by reference to the law of the place where the contract was made. This view is not covered by direct authority, but it is, I . .
Cited – Silver v Silver CA 1955
. .
Cited – Kenward v Kenward CA 1961
. .
Cited – Dukali v Lamrani FD 15-Mar-2012
W sought permission to seek financial relief under section 13. H denied that there had been a marriage. There had been a civil ceremony at the Moroccan consulate, the parties each having dual Moroccan and British citizenship, and: ‘the issue is . .
Cited – Sharbatly v Shagroon CA 21-Nov-2012
. .
Cited – Ram v Ram and others CA 16-Nov-2004
. .
Cited – Work v Gray CA 11-Apr-2017
Husband’s appeal from order for equal division of family assets. . .
Cited – 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 . .
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Cited – 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 . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – Hamalainen v Finland ECHR 16-Jul-2014
Grand Chamber . .
Cited – Babiarz v Poland ECHR 10-Jan-2017
The Court referred to Johnston v Ireland and said: ‘In the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure . .
Lists of cited by and citing cases may be incomplete.
Family, Human Rights
Updated: 01 November 2021; Ref: scu.648155