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.