HM Attorney General v Akhter & Ors

A ceremony creates a void marriage under Matrimonial Causes Act 1973, section 11(a)(iii), only if it crosses the threshold for marriage under the Marriage Act 1949. A ceremony falling wholly outside that Act is a non-qualifying ceremony and creates neither a valid nor a void marriage.

Status is determined from the ceremony and circumstances existing when it was performed. An intention to undertake a compliant ceremony later, subsequent cohabitation or the birth of children cannot alter its legal effect. Articles 8 and 12 of the Convention and the best interests of children do not justify a more flexible construction. A religious ceremony which the parties knew lacked legal effect, and which omitted the statutory preliminaries, authorised venue and authorised official, was non-qualifying.

The parties underwent an Islamic Nikah at a London restaurant. They knew that it had no legal effect and intended to undertake a compliant civil ceremony later, but never did so. After separation, the petitioner alternatively sought nullity under section 11(a)(iii) of the Matrimonial Causes Act 1973.

Williams J held in [2018] EWFC 54 that the Nikah was a void marriage. He adopted a holistic and flexible approach which considered the intended civil ceremony, Articles 8 and 12 of the Convention and the interests of the parties’ children.

The Attorney General appealed. The questions were whether some ceremonies fall outside the statutory category of even a void marriage and, if so, whether this Nikah was such a non-qualifying ceremony.

1. Appeal allowed. The order pronouncing a decree nisi of nullity was set aside. The Nikah was a non-qualifying ceremony in respect of which no decree could be granted under section 11 of the Matrimonial Causes Act 1973.

2. The statutory scheme contains a threshold. Sections 25 and 49 of the Marriage Act 1949 address marriages contracted respectively “according to” Anglican rites and “under” Part III. Those words require more than the performance in England of an event described as a marriage. A ceremony falling wholly outside the prescribed routes creates neither a valid nor a void marriage. The preferable description is a non-qualifying ceremony.

3. Section 11(a)(iii) of the 1973 Act refers to failures which the 1949 Act stipulates make a marriage void. There is no residual inherent jurisdiction to grant nullity. The court declined to formulate an exhaustive boundary between void marriages and non-qualifying ceremonies, because the cumulative effect of non-compliance remains fact-sensitive and certainty is best secured by observing the statutory formalities.

4. The Convention did not justify the judge’s flexible construction. Article 12 concerns formation rather than dissolution or nullity, and agreements to marry create no enforceable rights. Article 8 does not oblige the state to recognise a religious marriage or confer a right to nullity. The parties’ family life was protected, but their informed use of a religious ceremony without the required civil formalities did not breach Article 8.

5. The interests of children could not transform the legal character of their parents’ ceremony. Proceedings determining the adult parties’ marital status were not an action concerning children for Article 3 of the UNCRC. The availability of different financial provision regimes and any tangential reputational effect did not alter that conclusion.

6. The ceremony’s legal effect had to be determined when it occurred. It took place outside a registered building, without notice, certificates, a registrar or an authorised person. The parties knew another ceremony was required. Their intention to marry later, subsequent events and a holistic “process” could not supply omitted statutory steps or change the ceremony’s status.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 122, allowed the Attorney General’s appeal and set aside the decree nisi of nullity.

2. Family Court: Williams J held in [2018] EWFC 54 that the Islamic ceremony was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973 and pronounced a decree nisi of nullity.