Court of Appeal judges have ruled a marriage is only legally valid if a “qualifying ceremony” takes place.
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.
The court considered the case of solicitor Nasreen Akhter and Mohammed Shabaz Khan, who had a Nikah in a London restaurant in 1998.
The couple were aware the ceremony had “no legal effect” and had planned to follow up the ceremony with a civil marriage under English law.
But the pair, who had four children together, never had a civil ceremony. 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 claimed 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.
However, the Court of Appeal overturned his ruling finding found that “no marriage ceremony took place in respect of which a decree of nullity could be granted.”
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.”