Her Majesty’s Attorney General v Akther & Khan  EWCA Civ 122
Sir Terence Etherton MR, King and Moylan LJJ handed down judgment in Her Majesty’s Attorney General v Akther & Khan  EWCA Civ 122 on 14 February 2020, an appeal brought by the Attorney-General against a decision of Williams J of 31 July 2018. The appeal deals with the topical issue of the legal status of religious marriage ceremonies, and in particular the relevance of the European Convention on Human Rights to that issue. As the Court noted in its judgment, the Law Commission has identified a need for law reform in this area, including because of “the perceived rise in religious-only marriages, that is marriages conducted in accordance with the rites of a particular religion but without legal status”.
At the heart of the appeal is a three-part distinction drawn in the law of England and Wales between valid, void and non-marriages. The formal requirements by which a valid marriage can be “solemnized” are set out in the Marriage Act 1949 (“the 1949 Act”). The available routes to a valid marriage under the 1949 Act (for opposite-sex couples) are as follows:
- A religious route into marriage where Anglican preliminaries are followed by an Anglican ceremony.
- A civil route into marriage where civil preliminaries are followed by a civil ceremony either in a register office or on approved premises.
- A mixed route into marriage where civil preliminaries precede one of four types of religious ceremony. The ceremony can be (a) ‘according to the usages of the Jews’; (b) ‘according to the usages of the Society of Friends’ (i.e. Quakers); (c) ‘such form and ceremony’ as the parties wish, in a place of religious worship registered for the solemnization of marriage (being a ‘registered building’); or (d) ‘according to the rites of the Church of England’.
Where a valid marriage comes to an end, a party to it may apply for financial remedy orders under the Matrimonial Causes Act 1973 (“the 1973 Act”). Where a marriage purports to be of the kind contemplated under the 1949 Act but fails to comply with some requirement, a party to it may obtain a decree of nullity under s.11 of the 1973 Act; it is then considered a “void” marriage having no legal effect; however, importantly, a party to that void marriage is also, akin to a party to a valid marriage, able to apply for financial remedy orders under the 1973 Act.
Non-marriages, however, do not purport to be of the kind contemplated under the 1949 Act and are entirely unrecognised in law. Further, parties to a non-marriage have no rights to apply for financial remedy orders under the 1973 Act. A marriage ceremony conducted in accordance with Islamic law (commonly referred to as a ‘Nikah’, a transliteration of the Arabic term used in the Quran) is considered to fall into this third category, because the parties to it do not purport to celebrate a marriage falling within the 1949 Act.
The respondents to the appeal were Ms Akther and Mr Khan, who were parties to an Islamic ceremony of marriage conducted by an Imam that took place at a restaurant in London in December 1998. At the time of the ceremony, Ms Akther worked as a trainee solicitor, while Mr Khan worked as a car salesman. The respondents were aware of the fact that a Nikah ceremony was ineffective to marry them under English law, and so intended that the Nikah ceremony would be followed by a civil marriage ceremony compliant with English law.
That subsequent civil ceremony did not, however, take place. This was despite the fact that Ms Akther expressed concern that her rights were not protected, and raised the issue with Mr Khan on a number of occasions. The respondents lived in England and for a number of years in Dubai, and had four children. The marriage came to an end and the respondents separated in 2016. Ms Akther issued a petition for divorce on 4 November 2016, relying on the December 1998 ceremony and seeking, in the alternative (inter alia), a decree of nullity under the 1973 Act.
At first instance, Williams J granted Ms Akther a decree of nullity. Williams J considered that the traditional approach to non-marriages had to be supplemented by human rights considerations. In particular, Williams J considered that the court’s approach “should be somewhat more flexible in particular to reflect the Article 8 rights of the parties and the children”; the judge also considered that Article 12 was applicable, finding that “a horizontal effect together with general principles of fairness or equitable principles support the proposition that if the parties had agreed to or it was their joint understanding that they would engage in a process which would ultimately lead to a legally valid marriage means that should be taken into account in determining whether [what] took place falls within or without the parameters of section 11”; the judge also that where the parties intended to effect a legal marriage, Article 8 supported an approach to interpretation “and application which [results in] the finding of a decree of a void marriage rather than a wholly invalid marriage”.
Applying that more flexible approach, Williams J concluded that Ms Akther was entitled to a decree of nullity. This conclusion was based on a number of factors, including that the respondents had been “embarking on a process which was intended to include a civil ceremony”; that the “nature of the ceremony … bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry”; and included “the best interests of children as a primary consideration”.
The Court of Appeal overturned the decision of Williams J. In relation to the human rights issues, the Court, relying on the ECtHR case of Johnston v Ireland (1986) 9 EHRR 203 and on its earlier judgment in Owens v Owens  EWCA Civ 182 confirmed that it was “irrefutable” that there was no right under the ECHR to be divorced nor, if domestic law permits divorce, a right to a “favourable outcome”, and thus Article 12 was not engaged. Further, the Court noted that, even had Article 12 been engaged, this was not a situation where there subsisted any private law rights between the parties that might allow for a horizontal application of the ECHR. The Court noted, in particular, that agreements to marry do not give rise to legal rights, and that no action lies for their breach, per s. 1 of the Law Reform (Miscellaneous Provisions) Act 1970. The Court applied a similar analysis in relation to Williams J’s reliance on Article 8, emphasising that the question of whether a marriage is void must depend on the facts as they were at the date of the alleged marriage.