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A marriage is only legally valid if a “qualifying ceremony” takes place, Court of Appeal judges have ruled.
A panel of three judges rejected a “more flexible view of marriage as a process rather than a single ceremony”, which was taken by a High Court judge in an earlier ruling on a case involving an Islamic marriage ceremony.
Campaigners said the ruling, delivered in London on Friday, would force Muslim women to turn to “unaccountable” Shariah courts in divorce and family cases.
The court considered the case of solicitor Nasreen Akhter and businessman Mohammed Shabaz Khan, who had an Islamic marriage ceremony, or Nikah, in a London restaurant in 1998.
Nasreen Akhter at a previous hearing (PA)
They knew the ceremony had “no legal effect”, and intended to follow up the ceremony with a civil marriage under English law.
But the pair, who had four children together and spent some years living in Dubai, never had a civil ceremony – despite Ms Akther raising the issue on a number of occasions – and they separated in 2016.
Ms Akhter brought divorce proceedings in the High Court in November 2016, asking Mr Justice Williams to declare their marriage “void” because it had not complied with the various procedural requirements necessary to make it valid.
Mr Khan contended that the Islamic ceremony had no legal effect and therefore Ms Akhter was not entitled to a divorce.
Mr Justice Williams had ruled in favour of Ms Akhter, granting her a “decree of nullity”, and the couple later reached a financial settlement.
The judge considered that the Islamic ceremony “bore all the hallmarks” of a marriage in that it was held in public, witnessed, officiated by an imam and involved the making of promises and confirmation that they were both eligible to marry.
He also said they had been “embarking on a process”, which was intended to include a civil ceremony, and took into account the interests of their children.
However, overturning his ruling, the Court of Appeal found that “no marriage ceremony took place in respect of which a decree of nullity could be granted”.
Mohammed Shabaz Khan at a previous hearing (PA)
Master of the Rolls Sir Terence Etherton, who considered the case with two other judges, said the 1998 Nikah was a “non-qualifying” ceremony.
Announcing the court’s decision, he said: “The parties were not marrying ‘under the provisions’ of English law.
“The ceremony was not performed in a registered building. Moreover, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony.
“Further, the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony that did comply with the relevant requirements in order to be validly married.
“The determination of whether a marriage is void or not cannot, in the court’s view, be dependent on future events, such as the intention to undertake another ceremony or whether there are children.”
Sir Terence added: “With respect to the judge, who was clearly seeking a route which he understandably believed would lead to a fair outcome for (Ms Akhter), that is to say the ability to make an application for financial remedies for herself, we do not consider that his approach can withstand analysis.
“The difficulty with the judge’s approach is that … at no time did the parties in fact seek to effect a legal marriage.”
Having reached a settlement, neither Ms Akhter nor Mr Khan played any part in the Court of Appeal proceedings, and the appeal was brought by the Attorney General.
The court also heard argument from campaign group Southall Black Sisters and Fatima Hussain, another woman seeking a divorce following an Islamic ceremony, who intervened in the case.
Pragna Patel, director at Southall Black Sisters, said: “Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.
“The Court of Appeal referred to the Law Commission’s review of the law governing the regulation of marriage but we believe this to be a neat way to avoid having to grapple with the unsatisfactory nature of the current marriage system or its discriminatory nature.
“What we are seeing is the outsourcing of justice on family matters to unaccountable and fundamentalist-inspired community-based systems of religious arbitration.
“This is not about recognising religious marriages; it is about the state guaranteeing equality to all before the law.”
Charles Hale QC, of 4 Paper Buildings, who represented Ms Hussain before the Court of Appeal, said: “The law in these cases is not keeping up with society.
“These vulnerable women need better protection than the law currently provides.”
Additional reporting by PA Media