HM Attorney General v Nasreen Akhter

Hearing dates: 13 & 14 November 2019

Approved Judgment

Sir Terence Etherton Mr, Lady Justice King and

Introduction

The Attorney General appeals from the decision of Williams J to pronounce a decree nisi of nullity. The ceremony which he determined entitled the Petitioner to a decree took place at a restaurant in London on 13 ^th December 1998 (“the December 1998 ceremony”). It was an Islamic marriage ceremony, a Nikah, which the parties knew was of no legal effect and which they intended would be followed by a civil marriage ceremony compliant with English law.

The judge rejected the submission advanced on behalf of the Petitioner that the presumption in favour of marriage applied in this case because, as explained below, he rejected her evidential case that the court could presume that a second ceremony of marriage had taken place in Dubai when the parties were living there. As no party sought to argue that the December 1998 ceremony had created a valid marriage under English law, the judge said, at [6], 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 Matrimonial Causes Act 1973 (“the 1973 Act”).

As to the former, a non-marriage, the judge said, at [52], that it was “beyond argument that the concept of a form of marriage which was neither valid according to English law nor void has been accepted by the courts 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: see the judgment at [56], [92(a)] and [93]. He said, at [94] and [94(a)], that this required an approach which was “more flexible in particular to reflect the Article 8 rights of the parties and the children”, and justified the court taking “a holistic view of a process rather than a single ceremony”. Applying this “more flexible interpretation of s.11” of the 1973 Act, Williams J decided, at [96], that the December 1998 ceremony came within the scope of that section so as to entitle the Petitioner to a decree of nullity. It was “a marriage entered into in disregard of certain requirements as to the formation of marriage” and therefore void under s. 11(a)(iii).

Neither the Petitioner nor the Respondent has taken any active part in this appeal because they have reached an agreed settlement. Unusually, therefore, the court gave permission for the First Intervener, who is a petitioner in separate nullity proceedings, to intervene but limited to arguing matters of law. She has been represented by Mr Hale QC, Ms Roberts, Mr Edwards and Mr Langford, all of whom have acted pro bono. Southall Black Sisters, the Second Intervener, were also given permission to intervene. They have been represented by Mr Horton, also acting pro bono. In addition, the court is very grateful to the Attorney General for agreeing to instruct Mr Goodwin QC as Advocate to the Court to ensure, in particular, that any contrary arguments were put before the court. In the event Mr Goodwin has, effectively, supported the appeal. The Attorney General has been represented by Mr Nagpal and Mr Habteslasie. We are grateful to all counsel for their respective submissions.

As the hearing of the appeal progressed, it became clear that this case in fact raises only two issues:

(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.

The most significant practical difference is that a non-marriage creates no separate legal rights while a decree of nullity entitles a party to apply for financial remedy orders under the 1973 Act. We propose to address issue (i) first by considering the legal position without reference to the human rights arguments, which led Williams J to adopt the more flexible approach referred to above, and then by considering those arguments and whether they support the approach he took. We then address issue (ii).

Finally by way of introduction, we would agree with Williams J's disquiet about the use of the term “non-marriage”. Although we continue, largely, to use this expression in this judgment for consistency, in our view, if the concept exists at all, a better way of describing the legal consequences of what has happened is to use the expression, “non-qualifying ceremony” (as set out in paragraph 64 below).

Marital Status Summary

This case is concerned with the formal requirements, the formalities, of marriage under the law of England and Wales. Although we propose to refer only to marriage, we recognise that some of the questions raised might also apply to civil partnership.

A person's marital status is important for them and for the state. The status of marriage creates a variety of rights and obligations. It is that status alone, derived from a valid ceremony of marriage, which creates these specific rights and obligations and not any other form of relationship. It is, therefore, of considerable importance that when parties decide to marry in England and Wales that they, and the state, know whether what they have done creates a marriage which is recognised as legally valid. If they might not have done so, they risk being unable to participate in and benefit from the rights given to a married person.

The answer to the question of whether a person is recognised by the state as being validly married should be capable of being easily ascertained. Certainty as to the existence of a marriage is in the interests of the parties to a ceremony and of the state. Indeed, it could be said that the main purpose of the regulatory framework (summarised below), since it was first established over 250 years ago, has been to make this easily ascertainable and, thereby, to provide certainty.

As summarised below, the formal requirements by which a valid marriage can be “solemnized” are set out in the Marriage Act 1949 (“the 1949 Act”). The Law Commission is currently conducting a review of the law governing how and where couples can marry, announced in July 2019, having concluded in Getting Married, A Scoping Paper, December 2015 (“ The Scoping Paper”), at [1.33], that there was a need for law reform for a number of reasons including “the perceived rise in religious-only marriages, that is marriages conducted in accordance with the rites of a particular religion but without legal status”. The Law Commission said, at [1.35], that this was a “serious issue” because they “will usually be classified as a ‘non-marriage’ in English law [with the] result that the parties to it have no legal status, are not counted as married, and have no protection in the event of the relationship breaking down and no automatic rights if the other party dies”. That this is a serious issue is supported by the submission we have heard on behalf of Southall Black Sisters that the “total non-recognition … operates to the detriment of women and children”. It is also referred to in The Legal Treatment of Islamic Marriage Ceremonies, Oxford Journal of Law and Religion, 2018, 7, 376–400, Professor Probert and Shabana Saleem.

Although the Law Commission concluded, at [2.1], that the current system “has become unduly complex”, The Scoping Paper summarises succinctly, at [2.2], the currently available “routes into marriage” for opposite-sex couples as follows; see also Rayden and Jackson on Relationship Breakdown, Finances and Children, at [3.112]:

“(1) A religious route into marriage where Anglican preliminaries are followed by an Anglican ceremony.

(2) A civil route into marriage where civil preliminaries are followed by a civil ceremony either in a register office or on approved premises.

(3) A mixed route into marriage where civil preliminaries precede one of four types of religious ceremony. The ceremony can be:

(a) ‘according to the usages of the Jews’;

(b) ‘according to the usages of the Society of Friends’ (Quakers); or

(c) ‘such form and ceremony’ as the parties wish, in a place of religious worship registered for the solemnization of marriage (being a ‘registered building’); or

(d) ‘according to the rites of the Church of England’.”

Although the overall system might be described as complex, we would suggest that it is not difficult for parties who want to be legally married to achieve that status.

Given the nature of the ceremony in the present case, we would emphasise...