Below, are a couple of cases.
The first is in relation to a wife, who was a party to a nikah, seeking permission to issue a petition for nullity without a marriage certificate. The other, concerns a non-marriage whereby although a mother was seeking a decree of nullity her nullity petition was dismissed.
G v M in 2011 EWHC 2651
In this case, the parties had undergone an Islamic ceremony of marriage in the husband’s flat in London. A marriage certificate was never issued to either party. The applicant was seeking permission to file her petition for nullity in the absence of a marriage certificate.
The court accepted the evidence of the wife that she believed that the ceremony gave rise to a valid Islamic marriage and that such a marriage would be accepted as a valid marriage for the purposes of the laws of England & Wales. Furthermore, that she believed that her husband, the respondent, also shared this belief. As part of the ceremony that took place, both parties repeated a standard form of wording, as one would do in a church wedding confirming that they were taking the other. The applicant confirmed that she considered the formalities that took place on that day were sufficient “to be married for all purposes”. She further stated that the husband and the other people present including the imam “all felt the same”.
The judge held that there was sufficient evidence to establish that both parties believed that they were contracting an Islamic marriage and such a marriage would be recognised in English law. Furthermore, that the Imam believed he was conducting a valid Islamic marriage and that the parties recognised that marriage was sufficient for the judge to grant the wife permission to present her petition for nullity without a marriage certificate.
The permission would then enable the wife to consider and be advised as to whether to make an application for financial relief.
El Gamal v Al Maktoum in 2011, EWHC B27 (Fam)
In contrast, in this case a decision was made that the ceremony that took place at the father’s flat in Knightsbridge did not give rise to either a valid or defective marriage which could come to an end by a petition being issued; namely it was a non-marriage.
This case involved an application by the mother, Nivin el Gamal against His Royal Highness Sheikh Ahmed Bin Saeed al-Maktoum, a senior member of the Royal Family in Dubai. The parties had a son who was born in April 2008.
The mother had stated that the parties had an Islamic ceremony of marriage on 11th January 2007 in the father’s flat. She claimed this ceremony created a marriage albeit a void one. If accepted, she could seek a decree of nullity.
The mother stated that an Imam was present to conduct the ceremony and there were two witnesses. She said that she had received the sum of £30,000 representing her mahr and a diamond encrusted watch instead of a wedding ring. The father denied that such a ceremony took place. The onus was on the mother to establish that the wedding ceremony had taken place.
On the issue of credibility, the judge reluctantly took into account evidence on the mother’s mental health. Unhelpfully, and with little notice, the father did not attend court stating that he had to attend a Summit in Riyadh. The father was not present to give evidence to support his case or to challenge that of the mother’s.
If the father had attended and given a good account of himself and been cross examined, the judge said that he would have probably had concluded the underlying credibility issue in his favour. This could have resulted in a decision that the mother had falsely invented the ceremony, presumably for financial gain, or that as “a result of her unusual personality traits and emotional fragility, had somehow incorporated it into some sort of disassociated dream world where, for her, wishes come to be reality”.
The judge first concluded that there was an Islamic wedding ceremony on 11th January 2007. The next issue to consider was what effect did this have under English law, if any at all, i.e. was it a void marriage or no marriage at all.
The judge heard expert evidence that in most Muslim countries it is rare to find a customary marriage without it being recorded in writing. Furthermore, the judge said he would find it hard to accept that the wife would have expected this secret marriage to be recognised in Egypt. The mother’s Egyptian solicitor had also advised the mother against having this marriage in secret. The mother had lived in this country for 5 years and therefore the judge took the view that she should have been aware that certain formalities would have to be complied with. She had not provided any evidence to show what steps had taken to ascertain the formalities of marriage required in this country or in an Islamic country. The Judge concluded that her evidence of her belief that the ceremony was valid under Islamic law and English law was self-serving.
Having an imam, two witnesses and an intention for the marriage to be valid was not sufficient to show what the parties had done to comply with the Marriage Acts. In these circumstances, this was not a void marriage but a ‘non-marriage’, and accordingly the nullity petition was dismissed.