Attorney General v Akhter [2020]

1. Facts:

• The case involved a couple who underwent an Islamic marriage ceremony in 1998, fully aware that a civil marriage was necessary to create a legally valid marriage in the UK.

• Despite planning to complete the required civil marriage, the couple did not follow through with it. They subsequently moved to Dubai, where they obtained a marriage certificate.

• After returning to England, Akhter (A) petitioned for divorce from Mohammed Khan (M). M argued that there was no legal marriage to dissolve, as the Islamic ceremony was not legally valid in the UK.

• A’s argument was that either the presumption of marriage should validate the marriage, or it should be considered a void marriage.

2. Outcome:

• Justice Williams’ Decision:

• Justice Williams acknowledged that the couple had been together for 18 years, longer than the average marriage, and had four children together.

• The court considered the Leigh criteria, which include the following factors:

1. The couple understood that they needed both a civil ceremony and a Walima (Islamic feast) to complete the marriage.

2. Both parties consented to the marriage.

3. The ceremony was conducted in the presence of important family members and the community, who considered them married.

4. State authorities and the UAE recognised them as married for tax and benefits purposes.

• Despite these factors, the High Court concluded that the marriage was not legally valid. The ceremony did not fulfil the legal requirements necessary for recognition under English law, leading to the question of whether it was a void marriage or a non-marriage.

• Court of Appeal (CoA) Decision:

• The CoA allowed the appeal, finding that the focus should be on the ceremony itself rather than a continuum of factors.

• The Court concluded that there was no attempt to comply with the legal requirements for a valid marriage. Therefore, the ceremony was classified as a non-qualifying ceremony, not a void marriage.

• This meant that the wife could not obtain financial orders related to divorce.

3. Impact and Analysis:

• Non-Qualifying Ceremony vs. Void Marriage: The case highlighted the distinction between a non-qualifying ceremony and a void marriage. The CoA determined that because there was no attempt to meet the legal requirements, the ceremony was a non-qualifying ceremony, rather than a void marriage.

• Legal Recognition of Marriages: The ruling emphasised that to be considered a valid marriage, there must be compliance with statutory requirements. The focus on the ceremony itself underscores the importance of following legal procedures to ensure marital status is recognised.

• Human Rights Considerations:

• Article 8 ECHR: The argument that the marriage should be recognised as void under Article 8, which protects the right to private and family life, was not upheld. The court did not find that recognising the marriage as void was necessary to meet ECHR standards.

• Article 12 ECHR: The right to marry was considered, but the court found that the husband's actions in leading the wife to believe that a civil ceremony would occur did not affect the legal status of the marriage.

• Article 3 of the UN Convention on the Rights of the Child: The court acknowledged the importance of the children’s best interests but did not change the outcome based on this argument alone.

• Article 14 ECHR: Although the prohibition of discrimination was cited, it could not be used as a standalone right to influence the court’s decision.

• Impact on Financial Orders: The classification of the marriage as a non-qualifying ceremony meant that the wife could not make financial claims as part of the divorce proceedings, illustrating the significant legal and practical implications of a marriage’s legal status.

• Shift in Terminology: The case reflects a shift from considering marriages as “non-marriages” to “non-qualifying marriages,” which has implications for how such cases are approached in family law and the legal recognition of marital status.