For a marriage to be valid in English law, a civil registry marriage has to be performed. This gives married couples rights which non-married couples generally do not have. In addition, upon divorce, married couples can make applications to the court for financial claims for themselves and their children. A number of those opting for a religious ceremony choose not to complement it with a civil ceremony, leaving them in a vulnerable position legally on separation.
However, under the notion of a void marriage, where the marriage is not valid because one of the essential elements for a valid marriage is missing (for example a fault in the ceremony or one of the parties not having legal capacity to marry), the court can grant a decree of nullity and make consequential financial orders. This is different to when the court finds that there is an invalid non-marriage, resulting in no financial remedies.
Participation in some kind of recognisable marriage is essential for obtaining a decree of nullity and it is not sufficient for the couple to have simply been living together and conducting their finances as if they were married. There is no such thing as a ‘common law marriage.’
The recent case of Akhter v Khan and Another  EWFC 54, in which the parties had undergone a Nikah ceremony only, involved looking at whether the marriage was a void marriage within section 11 of the Matrimonial Causes Act 1973 (MCA 1973) susceptible to a decree of nullity, and the same financial remedies available to married couples on divorce.
The judge was not claiming (as some media outlets reported) that English law applies to Islamic marriages. Mr Justice Williams was clear in his judgement:
"what this case is not about…is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question: namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.”
Ms Akhter had petitioned for divorce on 4 November 2016 but Mr Khan defended it arguing that they had not entered into a valid marriage under English law but only a “blessing” under Sharia law as they had only had a Nikah in England, before an Imam, 18 years beforehand. Although it was clear that the Nikah ceremony did not constitute a valid marriage under English law, the judge did hold that the marriage was void under Section 11(a)(iii) of the MCA 1973 because it was “entered into in disregard of certain requirements as to the formation of marriage” and concluded that “in every sense save for the issue of legal validity this was a marriage and a long one at that”, the parties having been married for almost 20 years and sharing four children together. The judge also considered Article 8 ECHR (the right to respect for private and family life) and the effect any decision would have on the parties’ four children (in particular any resulting financial remedies available).
The judge was satisfied that Ms Akhter had frequently asked Mr Khan to undergo a civil ceremony, both shortly after the Nikah ceremony, and at other points including in 2001 when they changed their daughter’s name, but Mr Khan had put this off, delayed it or just refused. The judge held that the parties intended to “embark on a process of marriage” which was to include the civil ceremony and the failure to complete the “marriage process” was entirely down to Mr Khan’s refusal after the Nikah to arrange the civil marriage ceremony. The fact that Mr Khan had sought to rely on the Nikah to persuade the authorities in Dubai to accept it as a valid marriage for the purpose of living and working there only worked in Ms Akhter’s favour.
Had Mr Justice Williams not found in Ms Akhter’s favour that her marriage was void, she would have joined the three million cohabiting couples who are unable to bring the same financial claims as married couples. Instead, she would have been left in the potentially vulnerable position of only being able to rely on complex principles of property and trust law or making financial claims on behalf of her four children under Schedule 1 Children Act 1989.
The outcome of this case does not mean that every Nikah ceremony performed in England and Wales will be treated as a void marriage if it is not followed up by a civil ceremony. Of course, every case must be looked at on its own facts.
Some of the issues presented in the case have been the subject of ‘the independent review into the application of Sharia law in England and Wales’ commissioned by Theresa May when she was Home Secretary and published in February 2018. It calls for a regime of public education about the legal status of Sharia law. It highlighted that Muslims in the UK should undergo a civil marriage as well as a religious ceremony to ensure they are protected under the law. The panel called for legislative changes that would mean civil marriages are conducted before or at the same time as the Islamic ceremony, bringing Islamic marriages in line with Christian and Jewish marriages in the eyes of the law. To implement the proposals, amendments would need to be made to the Marriage Act 1949 and the MCA 1973, making it a legal requirement for Muslim couples to register their marriages. It remains to be seen what steps the Government will take following the review.
What is clear is that a growing number of Muslims are entering into Nikah contracts in England without undergoing a civil marriage (100,000 Muslim women according to the review). Sadly, many Muslims believe their Nikah contract is registered under English law only to discover upon divorce that they are merely cohabitees. Given the very limited avenues that can be explored by cohabitees, it is vital that if couples want to take advantage of the financial and legal security that marriages offer, they undergo a ceremony which follows the valid procedures.
In the case of Ms Akhter and Mr Khan, it was only fair that the judge found that their marriage of 18 years (as the judge pointed out, longer than the average marriage), producing four children and where everyone accepted them as husband and wife, was void allowing financial claims to be made.
The financial vulnerability for the increasing number of cohabiting couples in the UK remains an area of law for reform, the need for which can only be strongly encouraged in an ever evolving society where cohabiting couples are now the fastest growing family type.