Akhter v Khan (Rev 4)

The petitioner Nasreen Akhter issued a petition for divorce from the respondent Mohammed Shabaz Khan on 4 November 2016. The husband defended the divorce on the basis that the parties had not entered a marriage valid according to English law. In her reply, the wife averred that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage. In the alternative, she averred that the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973.

There are thus two central questions which I have to answer:

I shall refer to the petitioner in this judgment as the wife. I shall refer to the respondent as the husband. I do this because both the wife and the husband considered themselves to be married to each other and held themselves out to the world at large as husband and wife. That was because they had undertaken a religious marriage according to their faith which they themselves and the Islamic world considered made them husband and wife. The wife says (but it is denied by the husband) that they intended to undertake a civil ceremony. Whilst the parties lived in Dubai between 2005 and 2011 they were considered by the authorities there to be validly married. Although the husband now adopts the position that they were not married, and has apparently instructed his counsel to refer to the ceremony that the parties undertook in 1998 as a blessing, I consider that for the purposes of this judgment and notwithstanding that the issues that I have to determine go to their legal status in English law that I should refer to them as husband and wife.

Although the case before me is of most immediate concern to the applicant and the respondent and no doubt their children and extended families it does give rise to some questions which are of public interest also. The fact that some of the issues which are present in this case have been the subject of ‘The Independent Review into the application of Sharia Law in England and Wales’ which was commissioned by Theresa May when she was the Home Secretary illustrates the potential wider public interests of itself.

What this case is not about though is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.

The complication arises in part from the fact that in a series of cases since about 2001, judges have interpreted the provisions of the Marriage Act 1949 and the Matrimonial Causes Act 1973 such that as the law currently stands a marriage can not only be valid and void but also what has become termed a non-marriage.

If the marriage is valid (either because it has been shown or is presumed to have been conducted in the UK and complied with the necessary laws here or it had been shown or is presumed to have been conducted abroad and complied with the necessary laws there) the husband and wife gain all the benefits that come with the legal status of husband and wife. These may range from tax benefits, entitlement to pensions, inheritance advantages, forensic advantages in evidential terms in court through to the more prosaic of family discounts on tickets. If contrary to the parties’ hopes and, the marriage fails, they may separate and if necessary apply to court for judicial separation or divorce and for financial orders to deal with housing and maintenance and splitting of other assets. In the alternative if the parties have failed to comply with the necessary laws, the marriage may be annulled as being void or voidable. Whilst the marriage subsists they may have the same benefits as a married couple and if the court annuls the marriage the parties will be able to divide their assets or deal with maintenance.

However, in a ‘non-marriage’ case there is no such remedy available. Whatever the circumstances of the non-marriage the consequences are the same. Of course, no one would suggest that actors acting out a marriage for a film should under any circumstances be considered married. Likewise two individuals making promises to each other in secret. Again a couple who have lived together and had children but who have never as between themselves or held themselves out as married would rightly be treated as cohabitees without any of the remedies available to those who have married. But at the other end of the spectrum are cases where the application of the term ‘non-marriage’ seems inapt and indeed pejorative. The parties may have undergone a public marriage ceremony conducted by an official, witnessed by others, in which they confirmed there was no impediment to them marrying, that they consented and that they committed themselves to each other which they, their family and communities accepted led to them being married. They may have lived a married life and been accepted as married by their communities and the state. They may have had children. To all intents and purposes, they have been married. To characterise all of that as a non-marriage in law feels instinctively uncomfortable in 2018 and might rightly be regarded as insulting by many (although not all) of the participants. If it is a non-marriage which fails they may find they have no recourse to civil law and the remedies that provides. The parties cannot divorce because they do not have a marriage that is valid under English law but nor can they have the marriage annulled because they do not have a marriage that is void under English law. And so the parties – and usually of course the party who loses out is the wife – cannot ask a court to deal with issues of property, maintenance, pension sharing, variation of trusts.

As I have said the application of the term non-marriage to cases such as that before me feels instinctively inappropriate. For most purposes the relationship will have been accepted as a marriage by the parties, the community, and very probably various emanations of the state (schools, hospitals, possibly benefits or tax authorities). That it has come to be called a non-marriage in a sense illustrates the conundrum in this case. The use of any other word to describe the marriage for instance invalid, unlawful, non-compliant, void tends to lead to the conclusion that it was not valid and so might be thought capable of annulment.

So the main issue in this case is whether this marriage – which lasted for 18 years (longer than the average ‘marriage’) and which produced 4 children and where all accepted them as husband and wife in fact is to be treated in English law as not a marriage at all? Not even one which can be declared void for failing to comply with the formalities of marriage? I am identifying this as the main issue because as will become clear in the course of this judgment the question of whether the situation of the parties over the course of the period 1998 -2016 was such that a valid marriage could be presumed occupied the court far less than the nullity issue.

Although there are some factual issues in the case they are of relatively limited ambit albeit of considerable importance. I heard oral evidence from the wife, her sister and from the husband.

Whilst the basic two questions which the court is required to answer can be simply stated, hidden within them are a multitude of legal issues. The case was initially listed for three days on the 5 February 2018. For that hearing Mr Le Grice QC had filed a 13 page skeleton and Ms Rhone-Adrien a 7 page skeleton and they had compiled a bundle of 38 authorities running to some 615 pages. It became clear in the course of that hearing that the issues raised were of wider public interest, in particular whether the application of the Human Rights Act 1998 required the court to adopt a different interpretation of section 11 of the Matrimonial Causes Act 1973 or to apply it differently. As a result, I invited the Attorney General to intervene to make submissions on those issues. The Attorney General accepted the invitation to intervene and instructed Mr Nagpal whose written submissions ran to some 36 pages. Mr Le Grice QC’s further submissions ran only to a further three pages and Ms Paula Rhone-Adrien’s to 13 but these led to a further 17 page supplemental submission on behalf of the Attorney General. A further 33 authorities totalling some 956 pages were provided for the resumed hearing which was listed for two days on the 12^th and 13^th of July 2018. Having heard submissions from all the parties I adjourned my decision to consider my judgment.

Inevitably given the very lengthy written submissions, oral submissions and the authorities I cannot rehearse in this judgment all of the erudite, wide-ranging submissions that were made to me. I hope the parties will forgive me for what inevitably is a brief summary of the arguments that were put before me. I will explore the arguments in somewhat more detail later in this judgment but it seems to me that the essential issues identified by the parties are as follows

In the wife’s skeleton two possible presumptions of marriage are identified which might lead the court to presume that a valid marriage in English law took place.

The wife submits as follows:

On behalf of the husband, Ms Rhone-Adrien emphasised the following points

The submissions on behalf of the Attorney General have ranged far and wide on the Nullity point. The essential issues identified by Mr Nagpal can I think be summarised as follows.

I have had available to me the evidence contained within the court bundle and the supplemental documents which have been provided since.

I heard evidence from the wife, the husband, and from the wife’s sister. I have also read the witness statements of Ramiz Ibrahim and Rehmat Ali although they were not called to give evidence. I shall give them the weight which I consider appropriate. The critical witnesses in this were of course the husband and the wife and I shall return to my assessment of their credibility and the consequences at the conclusion of my review of the evidence contained within the chronology set out below. In the course of the chronology where I draw conclusions, they can be incorporated into my overall assessment of the evidence at the conclusion of this section.

In determining disputes of fact between the parties I approach it applying the civil standard; i.e. is it more probable than not that an event occurred or occurred as described by the wife or the husband. I give myself a Lucas direction.

Seeing the parties give oral evidence was of considerable assistance to me in understanding what had happened in the past. The written statements, whilst they covered some of the territory, did not bring to life the personalities of the husband and wife in the way that their oral evidence did. Nor did the written statements cover some of the important details relating to the parties’ marriage and subsequent events. Although demeanour in the witness box can only form a part of the evaluation of a witness, it supplementing the evaluation is of the consistency of their account internally and with other evidence (contemporaneous or otherwise) and other matters relevant to credibility, in this case their oral evidence (their demeanour, how they answered questions, what it revealed about the dynamic between the two of them and their personalities) has been an important component in my evaluation of the evidence.

The Wife is intelligent, measured careful. She was spontaneous in many respects – recalling in considerable detail the pre-wedding preparations, the night before, the ceremony itself and her dowry. She is more diligent and anxious to be accurate. She has a greater regard for the importance of frankness and honesty – her approach is detailed and methodical. She is the sort who likes things to be by the book. Hence her detailed will drafting, her love of the law and her request for Islamic jurisprudence books as a dowry. The husband’s case that she has made up the discussions over the civil ceremony at the time of the wedding, and that she has made up every subsequent reference to it do not seem consistent with the general nature nor with her general demeanour in giving evidence. In general her evidence appeared more consistent with known fact and contemporary documents and appeared more connected to lived experiences than fabricated.

This desire for order I conclude would have extended to wanting a civil marriage and Walima. Although a traditional Muslim and naïve in some respects she was not fundamentalist. I think she was quite meek. The husband in contrast would be dominant. Although intelligent and University educated there is still a strong streak of traditionalism in the wife’s attitude to roles in marriage.

I am satisfied that she asked for a civil registration on various occasions. I doubt she would press her case particularly hard given her nature and his but I am satisfied it was discussed both shortly after the Nikah ceremony and for instance in 2001 when they changed their daughter’s name. Later it may have just been in passing. His evidence about the Walima being discussed several years after the marriage supports her account that these shortcomings were still live in her mind and as he brushed off the Walima with ‘it’s too late now; so I conclude he would have done with the civil registration.

Husband is more casual in his approach generally, although capable of being very careful not to say manipulative and evasive when faced with questions or material, he can clearly identify as being hostile to his interest. Bluff, genial, a bit of a charmer. Capable of being dishonest when sees it is adverse to his interests to tell the truth and is untroubled by this. He was obviously dishonest in relation to the second marriage issue. I need to give myself a Lucas direction in respect of his evidence. I accept that the fact that he lied about the second wife issue does not mean that he is lying about everything else or even anything else. However his general approach to matters of formalities, or the need for accuracy was far less evident than the wife’s. He was casual in relation to the accuracy of documents, in particular the Nikah certificate which he took responsibility for obtaining. It was submitted to the Dubai authorities even though he knew that it was inaccurate.

He does not like to commit – preferring more general answers than specifics. I think he prefers to keep his options open, wanting freedom of action to do as he thinks fit at the time rather than tying himself down. I thought his general personality suggested that he was motivated by looking for an edge or an advantage for him. What was in it for him? He is clearly a risk taker. Unless he sees a clear advantage to him he does not like to make commitments. For instance, although I think he was more religious than the wife, he did not give his allegiance to the Sheikh whereas she did. I don’t think this illustrates she being more devout than he but rather she is more easily persuaded whereas he is reluctant to commit. Thus I can well understand that he may have not wanted a civil ceremony because there was nothing in it for him; he having secured his bride by the Nikah ceremony alone and having acquired all the advantages of a wife I conclude that seeing no advantage to him of going through with a civil ceremony that he fobbed the wife off taking advantage of her rather meek and undemanding nature and the disadvantage that she was at having moved to live with him become his wife spiritually and physically, I doubt that at that stage the husband had an eye to possible second marriage in future or even that he was specifically seeking to protect himself financially. Although he is highly money motivated (collected £1.8m debts to get business back on feet) and I think quite self-centred I think it most probable that he simply could see no advantage for him in fulfilling the expectation that a civil ceremony would be undertaken. He is strong-willed and determined – I do not think things just slip with him – decisions are taken for a purpose and in this case it was ultimately his decision.

Unfortunately, from the wife’s point of view she being of a trusting and compliant nature had allowed matters to go too far to then be able to insist that a civil ceremony was undertaken. I accept that it had been her genuine expectation that the Nikah ceremony would have been followed in a very short space of time by a Walima and by a civil ceremony arranged by the husband. I accept her evidence that she viewed the Nikah as only a part (albeit a significant part) of a broader process which she expected would include the civil ceremony as a less important but integral component of the whole. I accept her evidence that she and the husband had discussed the expectation that there would be a Walima and a civil ceremony in the weeks leading up to the wedding. I also accept that her father spoke to the husband about it as of course did the Imam. I cannot accept the husband’s evidence that the issue simply never arose between him and the wife. I therefore conclude that he either intended prior to the Nikah ceremony to organise the Walima and the civil ceremony but subsequently saw no advantage to him in seeing them through or that he led the wife to believe that he would undertake them but never truly intended to go through with it.

Either way at the point when the Nikah ceremony was undertaken it was the parties’ intention and the expectation of the close family that it was the first stage in a process that would have included the civil ceremony and the Walima. I’m also satisfied that the question of the civil ceremony was returned to at various stages over the 18 years that passed subsequently in particular when M’s birth was registered and concluding when the wife was drafting the husband’s will at the time they were contemplating the purchase of 216 Uxbridge Road.

Thus in every sense save for the issue of legal validity this was a marriage and a long one at that. It commenced with an agreement between the parties that they wished to marry each other and an understanding between them that they would undertake a Nikah, a civil ceremony and a Walima. Both parties were lawfully able to marry each other. Both gave their consent (I leave aside the question of whether the wife’s consent was obtained by misrepresentation of the husband’s intentions in relation to the Walima and civil ceremony). The ceremony was undertaken in front of the important members of their family and community. It was witnessed. It was conducted by an official in the religion which bound their consciences. Because of the husband’s actions the process which both had intended was not completed by the Walima and the civil ceremony. The wife committed herself emotionally religiously and physically to the marriage within a matter of days. This was followed by 18 years during which they considered themselves husband and wife. Every other person in their family and community considered them to be husband and wife. State authorities such as hospitals and schools (and I presume tax and benefits authorities), in England probably treated them as husband and wife. The state authorities of the United Arab Emirates treated them as husband-and-wife. The marriage produced four children. The trust was shattered by the husband’s proposal to take a second wife and thereafter the marriage limped to a conclusion in 2016.

With that history in mind I turn now to the legal framework and the issues that have been raised by the parties.

The presumption of marriage has a long history. The cases I have been referred to range from Piers v Piers (1849) 11 House of Lords cases (Clarks) 9 ER 1118 through to Hyatleh v Mofdy [2017] EWCA Civ 70. The article ‘The Presumptions In Favour of Marriage’ by Prof Probert Cambridge Law Journal 77 (2) provides a fascinating analysis of the presumptions.

Two forms of the presumption exist. Rayden and Jackson on Relationship Breakdown, Finances and Children, 19^th edition, identifies them as follows.

Lord Justice McFarlane commenced his analysis of the presumptions in the Hyatleh case from these definitions. If the presumption arises and is not rebutted its effect is that the court presumes a valid marriage existed. That would permit the marriage to be dissolved by divorce.

This begs the question of when a presumption may be rebutted. It appears from the Hyatleh judgment that the authorities may recognise a distinction in the degree of proof required to rebut the presumption, according to whether the presumption goes to the question of actual ceremony rather than formalities. In Mahadervan v Mahadervan [1964] P 233 the Divisional Court held

In Chief Adjudication Officer v Bath [2000] 1 FLR 8 the Court of Appeal said

At paragraphs 34, 35 and 36 of Hyatleh Lord Justice McFarlane said

It is a curious feature of the presumption of marriage cases that if the presumption is rebutted the net result may be that the parties move directly from the possibility of a valid marriage immediately into the category of what has come to be known as ‘non-marriage’ without any possibility of the marriage being a void or voidable marriage. Prof Probert’s review makes clear the very different situations in which the presumption has been deployed over the 227 years it was born and the difficulty in defining a consistent approach. One detects a theme of fairness as between the parties to the litigation; whether the parties to the marriage, their children or one of the parties and a third party including the state.

On behalf of the wife, Mr Le Grice QC did not advance a case for the application of the presumption in relation to the 1998 Nikah ceremony. What he principally focused on was the application of the presumption based rather on a presumed ceremony having taken place in the UAE. If such a ceremony took place it must have been by proxy on behalf of the wife because she had no knowledge of any such ceremony. In Al-Saedy v Muswai [2010] EWHC 3293 (Fam); [2011] 2 FLR 287 Bodey J reviewed the relevant principles and various authorities at paragraphs 60 to 71. The thrust of Bodey J’s reasoning was that if the parties’ reputation as husband and wife derived from a particular ceremony and that ceremony were demonstrated not to be a valid marriage, then the presumption could not be relied on to establish that the parties were validly married. This is because the presumption cannot convert that which has shown to be invalid to be valid. He did, however, acknowledge that a petitioner might still exceptionally be able to rely on the presumption in support of some other marriage ceremony, of which she was unaware, provided“that she is able to point to some evidential foundation for that possibility”. As Bodey J explained, logically a petitioner must be unaware of such a ceremony, otherwise she would have given evidence of it. An example of such an evidential foundation would be where one party has signed a form of proxy. The underlying principled reason for the requirement of an evidential foundation was articulated by Bodey J in the final sentence of paragraph 71:

An example of such an evidential foundation would be where one party has signed a form of proxy. This was the case in A-M v A-M(Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, where the presumption was successfully invoked and Hughes J (as he then was) concluded that the husband had not rebutted the presumption that he might have married the wife by proxy without her knowledge. In that case there was an evidential foundation arising out of the fact that the husband had been actively seeking to regularise the position as a matter of English law and to that end had been advised that the parties needed to divorce and re-marry abroad to create a marriage which would be recognised as valid in England. To that end the wife had signed a power of attorney which enabled her to be divorced and was accustomed to signing documents at the husband’s behest without appreciating what those documents were. The evidence established if the wife signed a power of attorney, the husband could marry her in an Islamic country without her knowledge and had been seeking to pursue a foreign marriage. Mr Le Grice QC places particular emphasis on this decision (see paragraph 19 of his skeleton argument). It is submitted that it should be presumed that there was a valid marriage by proxy while they were living in the UAE or shortly before the wife joined Mr Khan. In support of this it is submitted that the fact that the husband was looking to prove marriage at that time by seeking evidence of the earlier Nikah brings the presumption into effect which itself supplies the evidence that there was a marriage unless contradicted by clear and weighty evidence that the presumption does not prove a marriage. Mr Le Grice QC’s reliance on this case though has to be viewed in the context of its facts which clearly provided an evidential basis where the presumption might operate.

The cases all establish that if the known ceremony is shown on the evidence not to create a valid English marriage that the presumption cannot apply. The evidence of both the husband and the wife in this case establishes well beyond the balance of probabilities that the Nikah ceremony did not create a valid English marriage. It is clear, convincing and positive. For the ‘ceremony followed by cohabitation’ presumption to apply on the basis of an assumed rather than actual ceremony I accept that there must be some evidential foundation of at least the possibility of a ceremony having been undertaken unknown to the wife. If there were to be no requirement for any evidential foundation it would in effect create a presumption indistinguishable from ‘cohabitation and reputation’ presumption. I do not think the cohabitation and reputation presumption can be brought to bear where a known ceremony is demonstrated on the evidence not to have created a valid marriage. As Prof Probert makes clear in her article the presumption based on cohabitation and reputation arose from problems created by an evidential void or deficiency. It is difficult to see why as a matter of policy or justice it should be wheeled into action where the evidence is clear and complete. The evidence in this case does not in my view provide any foundation for the possibility of a further ceremony in the UAE conducted without W’s knowledge. First of all the parties obtained a copy of their Nikah certificate in order to satisfy the UAE authorities that they were entitled to live together as husband and wife. Secondly there was no reason at all for the parties to need a further ceremony given that the UAE authorities had accepted the validity of their marriage for the purposes of residence in the UAE. The wife does not suggest that the husband had expressed any desire to marry again in the UAE so as to create a valid marriage for English law purposes. Indeed her evidence is that he had declined to undertake a civil ceremony for just that purpose. Nor does the wife suggest that she had at any stage signed a power of attorney or any other document which might have enabled the husband to arrange a ceremony by proxy. Nor is there any suggestion that the parties were Islamically divorced which might have been a necessary precondition for a further marriage ceremony in UAE. Thus the direct evidence of the parties discloses no evidential foundation for a presumed second ceremony on which the presumption can operate. There is therefore no burden on the husband to adduce clear, positive or convincing evidence to rebut it.

I therefore conclude that the presumption of marriage does not operate on the facts of this case so as to presume a valid marriage under English law.

So if this marriage is not a valid marriage under English law and where the parties cannot be divorced, what is it? Is it a void marriage susceptible a decree of nullity? As Mr Nagpal puts it ‘the ultimate question for the Court is whether the requirements of section 11(a)(iii) are satisfied or not?’

The provisions relating to nullity are contained in the Marriage Act 1949 (as amended) and the Matrimonial Causes Act 1973.

The Marriage Act 1949 also of course sets out the statutory provisions for the creation of a valid marriage in English law. Part 1 deals with ‘Restrictions on Marriage’, part two with ‘Marriage according to Rites of Church of England’ and part three with ‘Marriage under Superintendent Registrar’s certificate’.

One thing which is agreed between the parties is that there are some events which may superficially bear some of the features of a marriage ceremony but which are plainly not. Thus the event undertaken by actors in the wedding scenes of ‘four weddings and a funeral’ can properly be described as a non-marriage; likewise children playing. Beyond that though the parties very much part company. The Attorney General, drawing on Bodey J’s judgment in Hudson v Leigh (below), describes the phrase ‘non-marriage’ as a convenient shorthand for describing something which is neither a valid or a void marriage. Whilst it may have developed as a convenient shorthand it is an unfortunate one if applied to facts such as those before me.

The interpretation of section 11 of the Matrimonial Causes Act 1973 and the interplay between that section and section 25 or 49 of the Marriage Act 1949 has been considered several times by this court and also by the Court of Appeal albeit in the latter case in a different context. Those authorities are:

Mr Le Grice QC relies on the description of marriage summarised at page 85 of the second edition of Jackson’s The Formation and Annulment of Marriage where it is said

This description derives from 18^th and 19^th century authority, including from the Ecclesiastical Courts which Mr Le Grice QC says requires an analysis of section 26 of the Senior Courts Act 1981, its predecessors and the jurisprudence of the Ecclesiastical Court. His essential point is that those cases illustrate a less rigid approach to the grant of decrees of nullity and the Ecclesiastical Court did not recognise a category of ‘non-marriage’. Mr Le Grice QC referred to Kassim v Kassim [1962] P 224 and Corbett v Corbett (otherwise Ashley) [1971] P 110 as examples of Ormrod J drawing on the Ecclesiastical Court jurisdiction and confirming the absence of any concept of non-marriage. In Corbett submissions were made that a purported marriage between two individuals of the same sex was not a marriage at all and thus not susceptible to a decree of nullity. Ormrod J rejected that submission and at 109G said

“...the Ecclesiastical Court did in fact grant declaratory sentences in cases of “meretricious marriages: Elliott v Gurr (1812) 2 Phillim 16. There is, in my judgment, no discretion to withhold a decree in the exercise of this jurisdiction”

I have been unable to establish from the judgment what statutory jurisdiction existed in relation to nullity at that point in time. I infer from the report that the situation was not covered by the relevant statute at the time. Section 11(c) of the Matrimonial Causes Act 1973 (which Parliament enacted notwithstanding the Law commission’s recommendation that marriage between two people of the same sex should be excluded from the nullity provisions) was not in force at the time. That supports the contention that the court at that point in time retained a power to grant a decree of nullity outside the statutory scheme then in place. However given that the statutory scheme is now different I’m not sure that it assists me in determining how section 11 of the Matrimonial Causes Act 1973 should now be interpreted.

In any event as Mr Nagpal notes Mr Jackson distinguished between (i) a void marriage; (ii) a non-existent marriage; and (iii) mere cohabitation.

“A marriage void, for example, for affinity, will be held not to have been “solemnised”, but a void marriage is still a marriage in the sense that it has to be distinguished from the non-existent marriage or mere cohabitation of man and woman”.

Section 26 of the Senior Courts Act 1981 provides

On behalf of the wife Mr Le Grice QC argues that in interpreting section 11 of the Matrimonial Causes Act 1973 the court must proceed and act and give relief on principles and rules which are as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts acted prior to 1857. It is on that basis that he argues that cases such as Pertreis v Tondear (1790) 1 Hagg Con 136 should be considered by this court (and should have been considered by the courts previously) in interpreting the true meaning and application of section 11. Mr Nagpal points out that section XXII of the Matrimonial Causes Act 1857 expressly required the court to act in that way. He notes that its successor, the Supreme Court of judicature (Consolidation) Act 1925 also contained in section 32 a requirement that the matrimonial jurisdiction be exercised as nearly as may be in the same manner as by the Ecclesiastical Court. However he points out that there is no equivalent in the Senior Courts Act 1981. Although I have not been taken to any Law commission, green or white paper or Hansard report on the circumstances in which the requirement came to be removed from the Senior Courts Act 1981 I think it reasonable to conclude that the omission of express reference was deliberate. That is hardly a surprise given the intervention of 134 years in which it might reasonably be thought that the principles and rules of the Ecclesiastical Courts had become embedded in the High Court family division in so far as they remained relevant. I therefore do not consider that there is any statutory requirement to act in conformity with the approach of the Ecclesiastical Court prior to 1857. In any event given the changes to the statutory framework in relation to nullity it would be difficult to directly transpose to the 21^st century the approach that the court took in 1790 in applying Lord Hardwicke’s 1753 Clandestine Marriages Act. The attorney general points out it seems clear that the Ecclesiastical Court regarded themselves as applying the universal law of Christian marriage; Garthwaite v Garthwaite [1964] P 356. Cases such as Hyde v Hyde and Woodmansee [1866] 1 LR P&D 130 and Risk v Risk (otherwise Yerburgh) [1951] P 51 illustrate the court when it was under an express obligation to act in conformity with the practice of the Ecclesiastical Court refusing relief when the marriage was outside the Christian tradition. It could be argued in the 21^st century it would be potentially discriminatory in the exercise of a general inherent jurisdiction to refuse relief simply because of the form of religion or because of a component feature of that religion. Mr Le Grice QC however accepted that there is no residual inherent power in the High Court to grant a decree of nullity save under statute. Thus it may not be open to the court to update the court’s approach using some sort of ‘filling in’ aspect of the inherent jurisdiction; A v Liverpool City Council[1982] AC 363;Re X and Y[2016] EWHC 2271 (Fam)at [31]–[50].

It is beyond argument that the concept of a form of marriage which was neither valid according to English law nor void has been accepted by the courts in the 11 cases identified above spanning a period of some 50 years. The term ‘non-marriage’ seems to appear first more recently in the case of Gandhi -v- Patel (above).

In MA v JA and the Attorney General [2012] EWHC 2219 (Fam); [2013] Fam 51 Moylan J (as he then was) conducted a comprehensive review of the law in relation to presumptions of marriage, void and invalid marriages. Within that evaluation he considered all of the cases identified above and by the parties in their skeleton arguments save for Al Gamal, his own case of Asaad v Kurter [2014] 2 FLR 833 and the very recent authority of AB v HT and others [2018] EWCOP 2. I do not intend to reiterate all that he set out from paragraphs 67 through 281 of that judgment but will restrict myself to what I consider to be the key aspects.

The relevant provisions of the Human Rights Act 1998 are

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Subsection (1) does not apply to an act if—

In this section ‘public authority’ includes—

The courts must strive for an interpretation (read and give effect) of legislation, (whether enacted before or after the Human Rights Act 1998 came into effect) that is consistent with the rights protected under the Convention: R v A (No 2) [2002] UKHL 25, [2001] 3 All ER 1, per Lord Steyn at [44]; Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, [2004] 2 All ER 557.

In Re K, Re H [2015] EWCA Civ 543 stated that

Separately the court must not act in a way which is incompatible with a Convention right.

Convention case law, which demands real and effective remedies, has repeatedly held that in order to secure Convention rights, there may be positive obligations upon the state to take positive steps to ensure the rights of individuals. Marckx v Belgium(Application 6833/74) (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECtHR where at para 31 the ECtHR emphasised that there may be positive obligations inherent in an effective ‘respect’ for family life under Article 8. They include an obligation on states to provide the substantive and procedural means by which the rights can be effective. The case law emphasises that the ECHR is to be interpreted in a purposive manner, consistent with the aims of the ECHR itself. Convention rights are intended to be of real value. Case law is to be interpreted in a manner that ensures that rights are ‘practical and effective’ not ‘theoretical and illusory: Bellet v France, 4 December 1995, Series A no 333-B § 38; Re W[2016] EWCA Civ 1140.

The ECHR is ‘a living instrument which must be interpreted in the light of present day conditions’. Case law develops in an ‘evolutive’ manner which means that cases are determined on their individual facts. The Convention case law aims to balance the rights of individuals with the needs of society as a whole. The ECtHR has stated the principle that ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights’. Although primarily addressing the rights of the individual vis-a-vis the state the Convention may have horizontal effect between individuals and the state may be under a positive obligation is to promote Convention rights on a horizontal level.

Some rights such as Article 8 are qualified rights and its exercise may be curtailed if in accordance with the law and necessary in a democratic society. Allied to the concept of striking a balance between the state and the individual is the question of necessity and proportionality. In R v DPP, ex p Kebeline, per Lord Hope of Craighead [1999] 3 WLR 972 at 993, the House of Lords emphasised that the questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality and that difficult choices may have to be made by the executive or legislature between the rights of the individual and the needs of society and that in some circumstances the courts will recognise that there is an area of judgment within which the judiciary will defer to the legislature.

The Court of Appeal has emphasised in Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) (Stonewall Equality Limited and another intervening) [2017] EWCA Civ 2164; [2018] 4 WLR 60 that the court must act compatibly with Convention rights and that one of those rights is to enjoy Convention rights without discrimination. This makes clear that Article 14 is not freestanding but only applies in relation to the other rights.

Mr Le Grice QC says the rights engaged in this case include

In addition to those rights I invited the parties to consider to what extent the rights of the minor children might be engaged given that a consequence of the decision I reach will have a knock-on effect on the children through the availability or not to the wife of a financial remedy where the first consideration would be the welfare of the children.

The United Nations Convention on the Rights of the Child 1990 was ratified by the UK on 16 December 1991 and it came into effect on 15 January 1992. It was entered into using the ‘Royal Prerogative’ to enter into a foreign treaty. It has not been incorporated by statute into domestic law and does not, as such, form part of the law of England and Wales, but decisions of the Supreme Court of the UK make clear that the rights set out in the UNCRC are binding and must be complied with in domestic decision making: ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4, [2011] 2 AC 166, per Baroness Hale at 23; HH v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor Intervening)[2012] UKSC 25, [2013] 1 AC 338, [2012] 4 All ER 539, paras 33 and 155, where the Supreme Court said that in looking at ECHR rights they had to be considered through the prism of UNCRC, Article 3.1.

Article 3 UNCRC provides

The Supreme Court has endorsed in Cameron Mathieson v Secretary of State for Work and Pensions[2015] UKSC 47 astatement by the Committee on the Rights of the Child that has identified Article 3.1 as one of the guiding principles of the Convention for interpreting and implementing all the rights of the child. ‘General Comment No 14’ adopted by the United Nations Committee on the Rights of the Child on 29 May 2013 states at para 6 that ‘best interests’ in this context is a ‘threefold concept’: (a) a substantive right, (b) a fundamental, interpretative legal principle, and (c) a rule of procedure.

In ZH (Tanzania) v Secretary of State for the Home Departmentat para 26, the UK Supreme Court explored and explained the distinction between decisions directly affecting the child's upbringing where welfare was the paramount consideration, and decisions which affect the child more indirectly where welfare is a primary consideration, and what ‘a primary consideration’ meant. Baroness Hale said:

It seems to me that the decision that I reach in this case is properly described as an action concerning children both because a direct consequence will be the availability or non-availability of a financial remedy of quite a different character to that which is available under the Children Act 1989. I also consider that it is an action concerning the children because it involves a determination of whether the relationship of their mother and father is to be described and categorised as a non-marriage or a void marriage. A marriage which is ended by a decree of nullity for non-compliance with the formalities of legal marriage is in my view a matter which concerns the children.

In addition, Mr Le Grice QC has also relied on ‘The United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1979)’ which entered into force as an international treaty on 3 September 1981 and was ratified by the UK on seventh of April 1986.

Mr Le Grice QC says that in accordance with The Vienna Convention on the Law of Treaties 1969, which came into force on 27 January 1980 that the UK must implement treaties in good faith and, insofar as they may conflict with internal laws, treaties should take precedence:

In relation to Article 6 ECHR Mr Le Grice QC’s central contention is that the existence of a law of non-marriage and the resulting inability to make a financial claim is indirectly discriminatory in respect both of women and in particular Muslim women; both being disproportionately affected given the likelihood that men will usually hold the majority of financial assets and Muslim women are more likely to be held to be in a non-marriage given the current state of the law.

Mr Nagpal says this argument is unsustainable for the simple reason that the essence of Article 6 is that it guarantees procedural rights; it cannot be used to create a substantive right where none exists in domestic law. Mr Le Grice QC says if there is no difference in status terms between a void marriage and a ‘non-marriage’ it is a procedural issue. He refers to what Lord Bingham stated in Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163.

Ultimately, I agree with the position of the Attorney General although not without some reservation. The origins of the discrimination (if it exists) lies in the territory of status. This is dealt with in Article 12 of the ECHR which affords individuals a right to marry in accordance with national law. It is not asserted that there is discrimination in relation to the right to marry and it is accepted that the right to marry does not carry with it a right to divorce still less a right to nullity or a right not to be characterised as being in a non-marriage. The ability to mount a financial remedy claim ultimately derives from this categorisation. The substantive law of financial remedy is therefore accessible without discrimination but is dependent upon status. It seems to me therefore that Mr Le Grice QC’s argument is in reality an argument that Article 12 has a discriminatory effect but given that Article 12 does not confer a right to divorce or nullity if it is discriminatory it is not the content of a substantive right. Given there is no direct or indirect discrimination against a Muslim woman in bringing a financial remedy claim if she has obtained a decree of nullity, I conclude that there is no breach of the wife’s Article 6 and Article 14 rights in this regard.

In relation to Article 8 Mr Le Grice QC argues that the right to respect for private and family life incorporates a right to respect for their status as a married couple. He submits that describing their relationship as a non-marriage is an infringement of their right to respect for private and family life which is not dependent upon their marriage status: Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471. He also submits that categorising their relationship as a non-marriage and thus excluding them from the ambit of nullity also amounts to a breach of article 8. He refers to the decision of the South African Constitutional Court in Daniels v Campbell No and others (2004) CCT 40/031 where Sachs J commenting on the definition of surviving spouse of a Nikah marriage said

“such exclusion as was effected in the past did not flow from the courts giving the word “spouse” its ordinary meaning. Rather, it emanated from a linguistically strained use of the word flowing from a culturally and racially hegemonic appropriation of it. Such interpretationowed more to the artifice of prejudice than to the dictates of the English language.’

The Attorney General responds by arguing that in terms of status there is no difference between a void marriage and a non-marriage. As a matter of law the parties are not and never were married. He also argues that the wife has not demonstrated that the state has not complied with a positive obligation to ensure respect for family life or that there has been interference with the right to respect for family life. He refers to the decision of the European Court of human rights in Serife Yigit v Turkey(3976/05); (2011) 53 EHRR 25 (in circumstances where the applicant’s Islamic ceremony was not recognised as valid in Turkey) where the grand chamber said:

Save in one respect I agree with the Attorney General submissions. It does not seem to me that there is a distinction in Article 8 terms between those who cohabit choosing not to marry and those who knowingly undertake a religious only ceremony and opt not to undertake the additional formalities necessary to affect a valid legal marriage. However I do consider that in respect of those who sought to effect or intended to effect a legal marriage that article 8 supports an approach to interpretation and application which the finding of a decree of a void marriage rather than a wholly invalid marriage. I agree with the sentiments of Sachs J.

Furthermore in terms of the obligation upon the court as a public authority it seems to me that it would be more appropriate to apply a term to the situation which is not as negative or potentially insulting as non-marriage is. As the expression has originated from the courts that is an act of a public authority which it seems to me either does, or risks, infringing the Article 8 rights of couples to respect for their private and family life. Those who have religiously married and have lived for many years, raised families and been treated by the family community and state authorities as married should not have the term non-marriage applied to them. In the course of this hearing the expressions valid marriage, void marriage, voidable marriage have been used to describe the legal statuses provided for in the Marriage Act 1949 and the Matrimonial Causes Act 1973. Whilst there may be a risk of confusion between void voidable and invalid it seems to me preferable to use the expression invalid marriage to describe a situation which is none of the other three. In my view the expression non-marriage should be reserved only to those situations such as acting or children playing where there has never been any intention to genuinely create a marriage.

The Supreme Court has said that Article 8 ECHR should be viewed through the prism of Article 3 UNCRC. Thus the best interests of children as a primary consideration are a component of Article 8. The determination of whether this is a void or an invalid marriage is an action concerning the children. I therefore consider that in the interpretation of section 11 or in its application the court should where it is appropriate be able to take into account the best interests of children. Whether this is seen as an aspect of the substantive right or an interpretive principle it seems to me does not matter as long as the court is able to take it into consideration. Given that it is a primary consideration their interests can of course be outweighed by other considerations including policy considerations. In a case where both parties had knowingly and voluntarily contracted a religious only marriage it might well be that respecting their autonomy and historic decision-making would outweigh the interests of the children.

Article 12 has not been expressly relied upon by Mr Le Grice QC as he accepts that the domestic law can properly impose formalities as to marriage. In this the attorney general agrees. Article 12 primarily addresses the rights of individuals to marry without appearance from the state. This however it seems to me there may be circumstances where Article 12 also has relevance in terms of its horizontal effect. In this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying and has thus left her in the situation where she does not have a marriage which is valid under English law the husband himself has infringed her right to marry. Once she had embarked on the process going through the Nikah ceremony and consummating the marriage, notwithstanding Ms Rhone-Adrien’s assertion that she could have left the marriage at any stage, the reality for this wife and I suppose many others in her situation is that this was not a realistic option for her. Thus if this marriage is not a valid marriage according to English law nor a void marriage she is left without the remedies which arise from divorce or nullity. It seems to me this must be a relevant consideration in the evaluation of whether on these facts this should be treated as a void marriage. Although usually deployed in the context of property rights, the equitable maxim that equity treats as done that which ought to be done and that equity focuses on intent not form (see Snell’s Equity 33^rd edition 5-015) seems to me capable of informing how the court might approach the interpretation of section 11 or its application. Whilst the equitable maxim cannot it seems be used to create something which is only capable of legal creation by fulfilling statutory conditions (i.e. a legal interest in land cannot be created unless section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 are met) it can create equitable rights. In this case it could not create a valid marriage but seems to me this approach supports the conclusion that in determining whether on the facts of this case whether what happened created a void marriage I can treat the joint intention of the parties to undertake a civil ceremony which was not then seen through by the husband’s as supporting the conclusion that this was a void marriage

Mr Le Grice QC submits that the non-marriage authorities infringe the wife’s Article 1 Protocol 1 right to peaceful enjoyment of her possessions. He submits that over the course of the marriage the wife has acquired a share in the matrimonial acquest. He submits that this is a right to property and that the categorisation of her marriage as a non-marriage prevents her from securing her right to this property because it denies her a financial remedy application. It allows her only her possessions in her name. Mr Le Grice QC founds this on a number of financial remedy authorities including

He argues that if this were a marriage having endured for some 18 years the birth of four children and the accumulation of capital there is no doubt that the wife would have a sharing claim with equal division being the starting point. The same would apply if she obtained a decree of nullity. I assume for the purposes of this that that assertion is correct. From a point of logic it seems curious that a spouse can acquire a share in matrimonial property when in void marriage situations there has never been a valid marriage to generate rights arising out of marriage. That suggests that it is not the existence of a valid marriage that is the source of the rights but is based on the partnership of two individuals living together as husband-and-wife.

The Attorney General submits that effectively the wife is putting the cart before the horse. He submits that even if a wife’s claim to a share does amount to property rights for the purposes of A1 P1 that the gateway to those property rights is a determination that she is entitled to either a decree of divorce or a decree of nullity.

The Attorney General also takes issue with the assertion that unascertained rights in the matrimonial acquest can even engage the A1 P1 rights. The issue has been considered (albeit the attorney general submits not definitively) by the Court of Appeal in Ram v Ram [2004] EWCA Civ 1452; [2005] 2 FLR 63 and Gray v Work [2017] EWCA Civ 260; [2018] Fam. 35 and that neither case conclusively supports the proposition contended for by Mr Le Grice QC. The attorney general submits that the starting point in relation to property rights is separation of property and that marriage does not alter property rights.Miller v Miller; McFarlane v McFarlane[2006] 2 UKHL 618; [2006] 2 AC 618 at paragraph 123 by the Supreme Court in Granatino v Radmacher (formerly Granatino) [2010] UKSC 42; [2011] 1 AC 534 at paragraphs 107, 164, 184.

I prefer the Attorney General’s arguments on this point. Cohabitees, however long they have lived together and however many children they have do not acquire any rights of property merely by cohabiting. They may do so independently on the principles applicable to implied, constructive or resulting trusts. Those would give true rights in property. The unascertained right to a share of the matrimonial property seems to me dependent upon establishing that there is either a valid or a void marriage and thus there is no potential property right infringed until that is established. I therefore do not consider that the A1 P1 argument assists either in respect of an assertion that a determination of non-marriage infringes rights or that the court should interpret section 11 so as to act compatibly with A1 P1 rights.

I don’t consider that Article 16 of CEDAW adds anything to Article 14 ECHR. At its simplest level the law in relation to invalid marriages applies equally to men and women and I do not consider that anything in Article 16 further assists in interpreting section 11 over and above the arguments I have outlined above.

Does the State’s interest in certainty of marriage which thus points to a narrow interpretation of section 11 of the Matrimonial Causes Act 1973 and more restricted application to each case outweigh the State’s interest in marriage as an institution which confers various benefits on the participants and the interests of individuals and children in at least identifying such situations as void marriages? Whilst I appreciate Mr Nagpal’s point on behalf of the Attorney General that a void marriage indicates it was void from its inception (i.e. was never a marriage at all) and thus is indistinguishable from a non-marriage in terms of legal status there is plainly a difference in ordinary perception but also in the remedies which flow from the different status.

It seems to me that the net effect of my conclusions on the fundamental rights arguments points in favour of an interpretation of section 11 which allows more flexibility. I do not consider that this extension is inconsistent with the wording of the section itself or carries the existing interpretation much further.

The starting point in relation to the interpretation and application of section 11 of the Matrimonial Causes Act 1973 must therefore be the net result of the series of cases considered by Moylan J (as he then was) in MA v JA (above).

However I think that approach must also be supplemented as a result of my conclusions in relation to some of the human rights arguments outlined above. That requires consideration of

Incorporating those considerations into the starting point leads me to conclude that the approach should be somewhat more flexible in particular to reflect the Article 8 rights of the parties and the children.

Applying that approach to the facts as I have determined them leads to the following conclusions.

On the basis of my slightly more flexible interpretation of section 11 of the Matrimonial Causes Act 1973 informed by fundamental rights arguments and taking into account the factors outlined above I therefore conclude that this marriage falls within the scope of section 11 and was a marriage entered into in disregard of certain requirements as to the formation of marriage.

It is therefore a void marriage and the wife is entitled to a decree of nullity.