Context
TheFacts
Mrs. Ahkter and Mr. Khan had taken part in an Islamic marriage ceremony at a London restaurant in 1998. It was common ground that the ceremony did not meet the requirements of theJudgments
Family court
In ''NA v MSK''In this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying and has thus left her in the situation where she does not have a marriage which is valid under English law the husband himself has infringed her right to marry.'What brought a ceremony within the scope of the
Court of Appeal
The Court of Appeal (with Sir Terence Etherton MR, King LJ and Moylan LJ) allowed the appeal. A court could grant a decree of nullity on the ground that a marriage was void was to be determined by the provisions of"As referred to above, however, we agree with observations that have been made about the unsatisfactory nature of the expression “non-marriage”. We consider that the focus should be on the ceremony and would propose that they should be called a “non-qualifying ceremony” to signify that they are outside the scope of both the 1949 and the 1973 Acts."The right to marry under Article 12 was not engaged; even if it was, the facts did not give rise to any breach (considering ''Owens v Owens'
"This_court_is_bound_by_''Owens''_..._It_being_“irrefutable”_that_there_is_no_absolute_right_to_be_divorced_under_Article_12,_the_question_is_whether_Article_12_applies_to_nullity._In_our_judgment_it_does_not._Logic_alone_would_dictate_this_to_be_the_case_but,_in_any_event,_casting_back_to_the_ECtHR’s_words_in_Johnston,_if_Article_12_cannot_cover_‘the_dissolution_of_a_marriage”,_it_cannot_cover_a_situation_where_a_marriage_is_declared_null_and_void_''ab_initio''._In_our_judgment,_counsel_at_first_instance_were_right_in_their_joint_view_that_Article_12_has_no_place_in_this_case."_Also,_even_though_Article_8_of_the_European_Convention_on_Human_Rights.html" ;"title="017
"This_court_is_bound_by_''Owens''_..._It_being_“irrefutable”_that_there_is_no_absolute_right_to_be_divorced_under_Article_12,_the_question_is_whether_Article_12_applies_to_nullity._In_our_judgment_it_does_not._Logic_alone_would_dictate_this_to_be_the_case_but,_in_any_event,_casting_back_to_the_ECtHR’s_words_in_Johnston,_if_Article_12_cannot_cover_‘the_dissolution_of_a_marriage”,_it_cannot_cover_a_situation_where_a_marriage_is_declared_null_and_void_''ab_initio''._In_our_judgment,_counsel_at_first_instance_were_right_in_their_joint_view_that_Article_12_has_no_place_in_this_case."_Also,_even_though_Article_8_of_the_European_Convention_on_Human_Rights">Article_8_was_engaged,_the_state's_failure_to_recognize_the_marriage_did_not_breach_the_right._The_right_or_grant_of_a_degree_of_nullity_does_not_itself_engage_Article_8,_which_means_that_there_is_no_right_to_divorce._The_court_considered_Williams_J's_reasoning_to_contradict_the_Law_Reform_(Miscellaneous_Provision)_Act_1970,_s1,_which_abolished_any_legal_effect_of_a_promise_to_marry_as_no_agreement_to_marry_can_take_effect_as_a_contract._It_concludes:_
"In_addition,_the_question_of_whether_a_marriage_is_void_must,_in_our_view,_depend_on_the_facts_as_they_were_at_the_date_of_the_alleged_marriage._A_marriage_either_is_or_is_not_void_and_either_is_or_is_not_within_the_scope_of_the_1949_Act_at_the_date_of_its_alleged_solemnisation._The_determination_of_whether_a_marriage_is_void_or_not_cannot,_in_our_view,_be_wholly_(or_in_part)_dependent_on_future_events,_such_as_the_intention_to_undertake_another_ceremony_or_whether_there_are_children._There_is_no_basis,_under_Article_8_or_by_virtue_of_the_impact_of_Article_3_of_the_Convention_on_the_Rights_of_the_Child.html" ;"title="017
EWCA Civ 182">017">[2017 :
EWCA Civ 182"This court is bound by ''Owens'' ... It being “irrefutable” that there is no absolute right to be divorced under Article 12, the question is whether Article 12 applies to nullity. In our judgment it does not. Logic alone would dictate this to be the case but, in any event, casting back to the ECtHR’s words in Johnston, if Article 12 cannot cover ‘the dissolution of a marriage”, it cannot cover a situation where a marriage is declared null and void ''ab initio''. In our judgment, counsel at first instance were right in their joint view that Article 12 has no place in this case."Also, even though Article 8 of the European Convention on Human Rights">Article 8 was engaged, the state's failure to recognize the marriage did not breach the right. The right or grant of a degree of nullity does not itself engage Article 8, which means that there is no right to divorce. The court considered Williams J's reasoning to contradict the Law Reform (Miscellaneous Provision) Act 1970, s1, which abolished any legal effect of a promise to marry as no agreement to marry can take effect as a contract. It concludes:"In addition, the question of whether a marriage is void must, in our view, depend on the facts as they were at the date of the alleged marriage. A marriage either is or is not void and either is or is not within the scope of the 1949 Act at the date of its alleged solemnisation. The determination of whether a marriage is void or not cannot, in our view, be wholly (or in part) dependent on future events, such as the intention to undertake another ceremony or whether there are children. There is no basis, under Article 8 or by virtue of the impact of Article 3 of the Convention on the Rights of the Child">United Nations Convention on the Rights of the Child 1990 (“UNCRC”), by which the legal effect of the same ceremony could be converted including from a non-marriage to a void marriage."Considering the above, theNikah In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islam ...was a non-qualifying ceremony: the fact that the parties had intended to undertake a civil ceremony at a later date could not bring theNikah In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islam ...ceremony within the scope of the 1949 Act. Therefore, Mrs. Ahkter was not entitled to a decree of nullity.[2020] EWCA Civ 122 [123]-[128] The ceremony was not performed in a registered building and no notice had been given to the superintendent registrar. Also, no certificates had been issued and no registrar or authorised person was present. Finally, the parties were aware that theNikah In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islam ...had no legal effect and failed to take a subsequent ceremony to make their marriage valid.
Reactions
The case had generated much media attention and was criticized for failing to protect Muslim women who have no rights when it comes to divorce.Southall Black Sisters Southall Black Sisters (SBS) is a non-profit organisation based in Southall, West London, England. This women's group was established in August 1979 in the aftermath of the death of anti-fascist activist Blair Peach, who had taken part in a de ...warned that the judgment would "outsource" justice on family matters to unaccountable and fundamentalist-inspired community-based systems of religious arbitration; it considered the matter not about recognising religious marriages; it is about the state guaranteeing equality to all before the law.The Guardian ''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...had supported Williams J's original judgment, considering that it allowed women in marriages to gain rights without "violating anyone's religious conscience". Tristan Cummings at Merton College, Oxford similarly criticized the Court of Appeal's judgment for over-relying on technical correctness rather than the "long-standing and ongoing hardships faced by religious minorities in a family law system historically constructed around Anglican family norms". Siddique Patel, on the other hand, considered the Court of Appeal to be more in line with the law and public policy grounds; however, he has called for reform in the law of unregistered faith marriages. TheLaw Commission A law commission, law reform commission, or law revision commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal chang ...has published a Consultation Paper on proposals for reform to "modernise and improve" wedding law.
References
{{reflist Family law in the United Kingdom Court of Appeal (England and Wales) cases