Akhter v Khan [2018] EWFC 54

WTLR Issue: Autumn 2018 #173

NASREEN AKHTER

V

MOHAMMED SHABAZ KHAN





THE ATTORNEY GENERAL (FIRST INTERESTED PARTY)

Analysis

Mrs Akhter (A) and Mr Khan (K) underwent an Islamic marriage ceremony in England in 1998. They then considered themselves husband and wife and were treated as such by their families, community and state authorities. They had four children. Despite requests by A no civil ceremony was ever undertaken. The parties lived in Dubai between 2005 and 2011 and were treated as married by the UAE authorities, to whom they presented their Islamic marriage certificate.

A petitioned for divorce in 2016. K applied to strike out the petition on the basis that the parties had not entered a valid marriage under English law. A replied relying on the presumption of marriage arising out of long cohabitation and reputation so as to validate the marriage, or alternatively, that the marriage was a void marriage under s11(a)(iii) Matrimonial Causes Act 1973, entitling her to a declaration of nullity. A further submitted that to declare that A and K were in a ‘non-marriage’ (ie neither valid nor void) would infringe A’s rights under Arts 6, 8 and 12 and Art 1, Protocol 1 ECHR.

The Attorney General was invited to intervene to make submissions.

The two issues to be determined were:

 

  1. A)Were the parties to be treated as validly married under English law by the presumption of marriage?
  2. B)If not, is the marriage a void marriage, susceptible to a decree of nullity?

 

Held

  1. 1)The presumption of a marriage ceremony from long cohabitation and reputation did not apply; the evidence established that the Islamic ceremony did not create a valid English marriage, and that no subsequent civil ceremony had taken place, either in England or the UAE. A had never executed a power of attorney which would have enabled a marriage by proxy to take place. [40]
  2. 2)Unless a marriage purports to be of the kind contemplated by the Marriage Act 1949 and the Matrimonial Causes Act 1973 it will not be within s11 and cannot be declared void. Whether a ceremony falls within or without that section must be approached on a case-by-case basis, but the court should take into account factors including 
(a) whether the ceremony purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of a legal marriage; (c) whether the three key participants (especially the official) believed, intended and understood the ceremony as giving rise to a lawful marriage. MA v JA and the Attorney General [2012] EWHC 2219 (Fam) followed. [44-56], [92].
  3. 3)When exercising its matrimonial jurisdiction under s26, Senior Courts Act 1981, the High Court is not bound to apply the law as it was applied in the Ecclesiastical Courts before 1857. Section 11, Matrimonial Causes Act 1973 exhaustively sets out the bases on which decrees of nullity may be made in relation to English marriages, and there is no residual jurisdiction for the court to issue a decree of nullity outside the scope of the 1973 Act. [51]
  4. 4)The law in relation to ‘non-marriages’ is not incompatible with the European Convention on Human Rights; any indirect discrimination against women, or Muslim women more specifically, arose out of the status of the marriage and so was subject to Art 12, not Art 6 ECHR. The right to marry under Art 12 does not imply a right to divorce, or a right for the marriage not to be declared a ‘non-marriage’. There was no discrimination in the right to marry. Accordingly, A’s rights under Arts 6 and 14 would not be breached by a finding of ‘non-marriage’. [77]
  5. 5)A had no interest in the marital assets which engaged Art 1, protocol 1 ECHR. The unascertained right to a share of the matrimonial property is dependent upon establishing either a valid, void or voidable marriage, prior to which there is no potential property right to be infringed. [88]
  6. 6)Nevertheless, Art 8 ECHR requires the court to interpret and apply the law flexibly, preferring the making of a decree of void marriage over a finding of ‘non-marriage’. [78]-[80], [93]. The United Nations Convention on the Rights of the Child 1990 may require the rights of children to be taken into account. [82], [93]. Where, as in this case, one party entered into the religious ceremony on the assurance by the other that a legal marriage would follow, Art 12 ECHR was also engaged and the court would take that expectation into account. [83]
  7. 7)Applying that flexible approach, the marriage was a void marriage within s11(a)(iii) Matrimonial Causes Act 1973; it was understood by both parties that they were embarking upon a process which was intended to include a valid civil ceremony, and the failure to complete that ceremony was due to K’s refusal. The ceremony which was undertaken bore all the hallmarks of a marriage and thereafter the parties lived as a married couple for all purposes. [95]

Decree of Nullity made
.

JUDGMENT
 WILLIAMS J:
 Introduction
 [1] The petitioner Nasreen Akhter issued a petition for divorce from the respondent Mohammed Shabaz Khan on 4 November 2016. The husband defended the divorce on the basis that the parties had not entered a marriage valid according to English law. In her reply, the wife averred that the presumption of …
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Counsel Details

Valentine Le Grice QC (The 36 Group, 36 Bedford Row, London WC1R 4JH, tel 020 7421 8000, e-mail clerks@36family.co.uk) and Max Lewis (29 Bedford Row, London WC1R 4HE, tel 020 7404 1044, e-mail clerks@29br.co.uk), instructed by direct access for the petitioner.
Paula Rhone-Adrien (Lamb Building, Temple, London EC4Y 7AS, tel 020 7797 7788, e-mail clerks@lambbuilding.co.uk), instructed by Messrs Seth Lovis & Co Solicitors (25 John Street, Bloomsbury, London WC1N 2BS, tel 020 7282 4360, e-mail enquiry@sethlovis.co.uk) for the first respondent.
Deepak Nagpal (1KBW, 1 King’s Bench Walk, Temple, London EC4Y 7DB, tel 020 7936 1500, e-mail clerks@1kbw.co.uk), instructed by the Government Legal Department (One Kemble Street, London WC2B 4TS, tel 020 7210 3000, e-mail thetreasurysolicitor@governmentlegal.gov.uk) for the first interested party.

Cases Referenced

  • A v Liverpool City Council [1982] AC 363
  • A-M v A-M [2001] 2 FLR 6
  • AB v HT and others [2018] EWCOP 2
  • Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471
  • Al-Saedy v Musawi (presumption of marriage) [2010] EWHC 3293
  • Asaad v Kurter [2013] EWHC 3852 (Fam)
  • Bellet v France, 4 December 1995
  • (
  • Burns v Burns [2008] 1 FLR 813
  • Cameron Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47
  • Charman v Charman (no 4) [2007] WTLR 1151, [2007] 1 FLR 1246vChief Adjudication Officer v Bath [2001] WTLR 55, [2000] 1 FLR 8
  • Corbett v Corbett (otherwise Ashley) [1971] P 110
  • Cowan v Cowan [2001] 2 FLR 192
  • Daniels v Campbell No and others (2004) CCT 40/031 (South African Constitutional Court)
  • Dukali v Lamrani (Attorney General Intervening) [2012] EWHC 1748 (Fam)
  • El-Gamal v Al-Maktoum [2011] EWHC 3763 (Fam)
  • Garthwaite v Garthwaite [1964] P 356
  • Geries v Yagoub [1997] 1 FLR 854
  • Ghaidan v Godin-Mendoza [2004] UKHL 30
  • Gray v Work [2017] EWCA Civ 260
  • HH v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor Intervening) 
[2012] UKSC 25
  • Hudson v Leigh [2009] EWHC 1306 (Fam)
  • Hyatleh v Mofdy [2017] EWCA Civ 70
  • Hyde v Hyde and Woodmansee [1866] 1 LR P&D 130
  • Kassim v Kassim [1962] P 224
  • MA v JA and the Attorney General (also known as A v A (Attorney-General Intervening)) 
[2012] EWHC 2219 (Fam)
  • Mahadervan v Mahadervan [1964] P 233
  • Marckx v Belgium (Application 6833/74) (1979) 2 EHRR 330
  • Matthews v Ministry of Defence [2003] UKHL 4
  • McFarlane v McFarlane [2006] 2 UKHL 618
  • Moore v Moore [2007] 2 FLR 358
  • Pertreis v Tondear (1790) 1 Hagg Con 136
  • Piers v Piers (1849) 11 House of Lords cases (Clarks) 9 ER 1118
  • R v A (No 2) [2002] UKHL 25
  • R v Bham [1966] 1 QB 159CA
  • R v DPP, ex p Kebeline [1999] 3 WLR 972
  • Radmacher v Granatino [2010] UKSC 42; WTLR(w) 2010-13
  • Ram v Ram [2004] EWCA Civ 1452
  • Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) (Stonewall Equality Limited and another intervening) [2017] EWCA Civ 2164
  • Re K, Re H [2015] EWCA Civ 543
  • Re W [2016] EWCA Civ 1140
  • Re X and Y [2016] EWHC 2271 (Fam)
  • Risk v Risk (otherwise Yerburgh) [1951] P 51
  • Serife Yigit v Turkey (3976/05); (2011) 53 EHRR 25
  • Sharbatly v Shagroon [2012] EWCA Civ 1507
  • White v White [2001] 1 AC 596
  • ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4


Legislation Referenced

  • Human Rights Act 1998, ss3, 6, Sch 1, Arts 6, 8, 12, 14, Prot.1, Art 1
  • Law of Property (Miscellaneous Provisions) Act 1989, s2
  • Marriage Act 1949, ss25, 49
  • Matrimonial Causes Act 1857, s22
  • Matrimonial Causes Act 1973, ss11, 25
  • Senior Courts Act 1981, s26