Status and marriage
To be divorced you must be married. To secure a variety of rights marriage may need to be proved. So what constitutes marriage; and what the lesser cohabitant status. The formal – and less formal – family cohabitation of couples consists of:
- Married and civil partnered couples
- Couples who cohabit without and formal link or ceremony (cohabitants or ‘cohabs’)
- Couples who were married, but whose marriage is avoided (void or voidable) under Matrimonial Causes Act 1973 (MCA 1973) ss 11 and 12 (eg because one party is a bigamist, or a marriage is not consummated)
- Couples who cohabit after what may be called a ‘non-qualifying ceremony’ of ‘marriage’ (see Akhter (below) at  and : formerly known – inaccurately said the Court of Appeal – as a ‘non-marriage’), many of whom may regard themselves as married under their own custom or faith
It is the last group (ie (4)) with which HM Attorney General v Akhter & anor  EWCA Civ 122 (14 February 2020) was concerned. It was an appeal from Akhter v Khan & Attorney-General  EWFC 54,  Fam 247 (31 July 2018), Williams J. The Court of Appeal allowed the Attorney-General’s appeal; though by the time it reached the court the couple in the case had settled (on what terms, the report does not say).
Judgement was by the court (Sir Thomas Etherton MR, King and Moylan LJJ). The issues raised, said the judges were two ():
- Whether there were ceremonies like marriage (in UK law), but which do not create a marriage but which is in a form which can then be avoided under MCA 1973 s 11; and
- If so, whether there was between these parties a ‘non-qualifying ceremony’; or was there such a marriage sufficient for the court to declare void, as Williams J had done?
The answer to these questions is no; but since this turns on what is a ceremony of marriage the important prior question: is what did the court say about formation of marriage since this question must logically precede the question of whether there is any marriage to dissolve or avoid (annul).
The background to this case will be summarised in this post, and the marriage question be considered in a later post.
Marital status: private and public law rights
Marriage creates status, from which flow a variety of administrative and private law rights and obligations; or as the court put it:
 [The importance of marital status] as a matter of law derives from the significant legal rights and obligations it creates. It engages both the private interests of the parties to the marriage and the interests of the state. It is clearly in the private interests of the parties that they can prove that they are legally married and that they are, therefore, entitled to the rights consequent on their being married. It is also in the interests of the state that the creation of the status is both clearly defined and protected. The protection of the status of marriage includes such issues as forced marriages and “sham” marriages.
The couple had an Islamic ceremony. They knew this was, on its own, of no legal effect, said the court. It was to have been followed by a civil ceremony compliant with English law, but this did not happen. Williams J found sufficient of a marriage for him to conclude that it came within scope for him to anull under MCA 1973 s 11(a)(iii). This would give the wife, Nasreen Akhter, rights to financial relief under MCA 1973. However, as the Court of Appeal pointed out: a void marriage is a contradiction in terms: ‘ … It has no legal effect on the status of the parties. A decree of nullity could, therefore, be said to be only declaratory because it does not make the marriage void.’
Williams J had held that the marriage was void; for he said, by MCA 1973 s 11(a)(iii) ‘the parties have intermarried in disregard of certain requirements as to the formation of marriage…’ because their marriage was not valid ‘under the provisions of the Marriage Acts 1949 to 1986’.
The Court of Appeal went back to the Marriage Acts (recalling the analysis set out by Moylan J (ahtw) in A v A (Attorney General intervening)  EWHC 2219 (Fam),  Fam 51 sub nom MA v JA and the Attorney-General)  2 FLR 68). They traced what the ceremony in law which defines marriage, and then asked where marriage law left the parties on the facts in this case.
Nasreen Akhter is not married to Mr Khan. This has consequences not only in matrimonial law, but also in some areas as inheritance law and administrative law (benefits etc). But first it is necessary to define what is and is not marriage. As far as the present divorce reform bill is concerned, nullity remains as in Matrimonial Causes Act 1973; though it remains to be seen whether rules will provide that a spouse against whom irretrievable breakdown (cl 1 of bill) is alleged wishes to assert nullity as a basis for ending the marriage; or that marital status is in issue under Family Law Act 1986 s 55 (as now).
As the law stands people in Nasreen Akhter’s position will be firmly in category (2) above, with all the shortage of rights (almost none outside Inheritance (Provision for Family and Dependants) Act 1975 on her cohabitant’s death and under trust law) which that implies. The next step here is to write a modern summary of marriage law derived from this case and the statutory sources.
16 February 2020