Does an Islamic Nikah Give a Right to Apply for a Financial Remedy Order under the Matrimonial Causes Act 1973?
In the recent Court of Appeal decision in HM Attorney General v (1) Nasreen Akhter (2) Mohammad Shabaz Khan  EWCA Civ 122, the Court was asked to clarify when an Islamic ceremony of marriage (a Nikah), will be validly solemnised for the purpose of the Marriage Act 1949 which sets out the routes into marriage for opposite-sex couples in England and Wales.
If a Nikah meets the formality requirements of the law of England and Wales, then this creates a variety of rights and obligations, including the right to apply for financial remedy orders under the Matrimonial Causes Act 1973. However, if a non-qualifying ceremony has taken place, there is no right to apply for a financial remedy order. Under the Marriage Act 1949 there is in effect three routes into marriage:
- A religious route into marriage where Anglican preliminaries are followed by an Anglican ceremony.
- A civil route into marriage where civil ceremonies are followed by a civil ceremony either in a register office or on approved premises; and
- A mixed route into marriage where civil ceremonies 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” (Quakers); or
c. “such form and ceremony” as the parties wish, in a place of religious worship registered for the solemnisation of marriage (being a “registered building”); or
d. “according to the rites of the Church of England”.
The question was whether on the facts of this particular case, where there had been a Nikah in a restaurant and the couple had intended to follow this up with a civil marriage ceremony but never did, had route 3c described above (and more fully set out under s.44 Marriage Act 1949) been met? The Court found that the formality requirements had not been met: the parties were fully aware at the time of the marriage that without a civil marriage ceremony, they would not be legally recognised as being married and this had been reinforced by the Imam.
The second question then had to be answered was whether on the facts, had there been a void marriage under either s.25 or s.49 Marriage Act 1949? If so, a void marriage did give rise to the right to apply for a decree of nullity under s.11(a)(iii) Matrimonial Causes Act 1973 and then to apply for a financial remedy order. If not, the result was that there had been a ceremony of marriage, but which had not been sufficient to create a marriage or void marriage under the law of England and Wales.
As the parties had not attempted to meet the requirements of marriage under route 3c (as they had intended to follow up the Nikah with a civil marriage ceremony), they could not meet the test for a void marriage. The Court considered whether the Human Rights Act 1998 made any difference to their findings. They found that it did not since a finding that parties never married could not lead to a determination that the right to marry had been infringed. Finally, the Court decided that the mere intention of parties cannot change the legal effect of a ceremony of marriage and Article 8 ECHR does not provide a different approach to interpretation contrary to the finding of the judge below. The failure of the state to recognise the Nikah as a legal marriage does not breach Article 8 ECHR and the refusal to grant a decree of nullity did not of itself engage Article 8 ECHR.
Have you had a Nikah ceremony and need advice understanding your rights under English law and your options? Contact our Family Team and we will be happy to assist.
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