Akhter v Khan: Caution Advised. We are yet to see the best of all possible worlds.
Posted on 10th August 2018 at 16:18
In their 1759 satirical assault on the naïve optimism of the philosophy of enlightenment, Candide, ou l’Optimisme, Voltaire pits optimism directly against misfortune. If this is the best of all possible worlds, they ask, what then are the others?
One must be careful not to assume that because something exists, it is the best possible thing that could exist. Things can be well, but not the best. Things can be otherwise than as they are, they are not the best they could possibly be, yet.
Yet is the operative word.
So it is with the recent case of Akhter v Khan, which immediately garnered headlines such as “English law applies to Islamic marriage, judge rules in divorce case”. That prospect, expressed only by the headlines, was greeted with widespread support. The space between something happening and that something being the best possible something is wide and deep.
The judgment in the recent case of Akhter v Khan is careful to point out that it is not saying that English law applies to Islamic marriages. The sort of optimism that could cause one to view this decision as being the best of all possible decisions will lead to disillusionment. Of immediate note, amongst several things which caveat this decision, is that there remain higher courts to which this matter may yet ascend.
Mr Justice Williams, giving their judgment, was clear “What this case is not about…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.”
The difference, while appearing on the face of it to be semantic only, is important and in fact the making of such a distinction is where the optimism that perhaps could be associated with this decision stems. Again, such optimism should be cautious where it exists at all.
The petitioner, Nasreen Akhter (the Wife), issued a petition for divorce from the respondent, Mohammed Shabaz Khan (the Husband), on 4 November 2016 on the basis of a marriage she averred took place in 1998. The Husband defended the divorce on the basis that the parties had not entered a marriage valid according to English law. The Wife, replying, averred that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage – the parties having considered themselves married to each other, held themselves out to the world at large as husband and wife, had undertaken a religious ceremony according to their faith and which they themselves and the Islamic world at large considered made them husband and wife. The parties, between 2005 and 2011, lived in Dubai where the authorities considered their marriage to be valid. In the alternative, the Wife averred that the marriage was a void marriage within section 11(a) (iii) of the Matrimonial Causes Act 1973.
Void, Valid or Non?
If a marriage is valid (either by being conducted in the UK and in compliance with the necessary laws here, or shown or presumed to have been conducted abroad and complied with the necessary laws there) the husband and wife gain all benefits that come with the legal status of husband and wife. 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 however, 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.
If there is a non-marriage, if it is possible to “be” something which is not, there is no such remedy available. People who live together, have children, but do not purport to be married would rightly be treated as cohabitees and not have any of the remedies associated with a state they never suggested, believed or acted as if, they had entered.
The marriage of Mrs Akhter and Mr Khan was declared to be not a valid one and void under a (admittedly) “flexible” reading of section 11 of the Matrimonial Causes Act 1973. What follows misses a discussion of the submission of Mr Valentine Le Grice QC (for the Wife) the reading of which is recommended.Mr Justice Williams, found an application of the idea of a non-marriage to circumstances, as in Akhter v Khan, where the parties had lived as if they were, held themselves out to be, been accepted by their communities as being and for all intents and purpose were, married as being inapt and “instinctively uncomfortable”. On the basis that the marriage was entered into in disregard of certain requirements to the formation of marriage, the parties were found to have entered into a void marriage.
Mr Justice Williams was clear in their verdict, with perhaps the exception that the disdain for the idea of a non-marriage can be applied generally, the verdict does not give a catch all approach for wide application. Subsequent decisions, should they arise must be dealt with on a case by case basis.The optimistic headlines are as misleading as the notion that all being created for an end, all is necessarily for the best end. For now the option is available (as, arguably, it already was) for a court, depending on the factual matrix of the case being decided, to come to the conclusion that a void marriage exists and that the parties should then be able to divide their assets or deal with maintenance. Those lower courts have their guidance, it is yet to be seen what the Supreme Court may when, as seems likely, it decides whether to uphold.
Christopher Carney - Solicitor
This article is provided for information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.
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