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Vardags Family Law Essay competition 2023/24 | Josiah Wamwere-Njoroge

Josiah Wamwere-Njoroge - Kenya School of Law




This essay analyzes the complex legal implications surrounding unregistered Muslim marriages in England. It explores relevant case law and judicial reasoning in categorizing these unions as non-marriages. The essay concludes that while such marriages are in a state of legal limbo, their transitional status signals cultural integration.


  1. Cases that were initially considered purely religious sometimes end up being brought before civil courts. When faced with such cases, civil courts must delicately navigate the intricate balance between legal and religious principles. This challenge is particularly prominent in dealing with the sensitive issue of religious marriages that lack civil effects, a circumstance that is currently under scrutiny within the Muslim community. Similar to any other citizen, a Muslim woman may enter into marriage and later dissolve the union, concluding a chapter in her life by parting ways with her spouse. However, the specific characteristics of Muslim marriages often lack procedural details. Additionally, many Muslim immigrants are unfamiliar with customs and traditions in their adopted countries. This lack of familiarity has resulted in a more significant challenge for religious marriages within the Islamic practitioner community. These marriages face issues of non- recognition by civil law, a challenge more pronounced than in other religious communities.
  2. Research in this field reveals concerning statistics, indicating that a significant percentage of Muslim marriages conducted in England lack recognition under English civil law, ranging from 27% to 52%. An investigative report by True Vision Aire and Channel 4 for the year 2016-2017 presents even more alarming findings. The report concludes that 60% of the 903 Muslim women interviewed during the investigation had not entered into legally valid marriages according to English law. If these figures hold true, the situation is undoubtedly problematic.
  3. In England and Wales, as in other jurisdictions, it is often the woman, particularly one of Muslim faith in the case at hand, who seeks advice when her marriage approaches its conclusion. The Islamic law procedure of repudiation, known as talâq, places her at a distinct disadvantage. If she seeks assistance from a Sharia council, the recommended decision might be a source of disappointment or satisfaction. In the latter case, she may choose to follow the advice provided and seek civil justice to obtain financial support for herself and/or her children, as religious authorities typically do not address this matter. It is generally during this process that she realizes she may never obtain any legal document attesting to the civil termination of her marriage.
  4. In such cases, it is essential to ascertain whether a marriage lacking civil recognition will be deemed void, voidable, or non-existent. The recent Court of Appeal judgment in Akhter v Khan5 illustrates a preference for the latter option by the courts. While some argue for modifying the perceived inflexible stance of the courts, others suggest maintaining the current approach, invoking the concept of liminality.
  5. A marriage lacking civil validity carries severe consequences as it cannot be subject to divorce or annulment. Recent English judicial decisions, after some fluctuations, have provided clarity on the distinctions between a void or voidable marriage, following the precedent set by the De Reneville v De Reneville case. Alternatively, in cases of marriages lacking civil validity, a non-marriage categorization is generally applied. Without delving extensively into the void and voidable concepts, it is essential to recall certain elements to better differentiate them from the non-marriage categorization.

A. Void Marriages

  1. In cases where the parties knowingly and willfully neglect the formalities set out in the Marriage Act 1949 and the Matrimonial Causes Act 1973, the marriage is deemed void. However, it is noteworthy that financial remedy claims can still be pursued in such instances. However, if the failure to comply with the formalities is innocent, it becomes the courts responsibility to assess the extent to which the ceremony deviated from the intended and prescribed form. This highlights the delicate balance the legal system must strike in discerning between intentional non-compliance and unintentional oversight in
     the realm of marriage formalities. In the context of void marriages, they are considered never to have existed in the eyes of the law. These types of marriages usually have fundamental defects related to prohibited relationships, the age of the parties, non- compliance with formalities, or the non-free status of either of the parties. These defects must be present from the beginning of the marriage. As a result, the parties cannot be considered united by the bonds of marriage, even if there was a ceremony resembling one. In this scenario, it is not mandatory to request and obtain a decree of nullity to annul the so-called marriage, although one may choose to do so as a declaratory measure to eliminate any doubt about the status of the parties.

B. Voidable Marriages

  1.       A voidable marriage refers to a marriage that is considered valid unless a court issues a decree of nullity. Unlike void marriages, which are deemed invalid ab initio, voidable marriages are initially valid but can be annulled by a court if certain conditions are met. Section 12 of the Matrimonial Causes Act 1973 outlines the circumstances under which a marriage may be deemed voidable. Grounds for annulment may include non- consummation of the marriage (due to incapacity or lack of consent from one of the spouses); lack of consent to the marriage (due to fraud, mistake, or an issue related to the mental faculties of one of the parties); concealed venereal disease at the time of the marriage; pregnancy of the wife by another man at the time of the marriage, or problems related to gender recognition.
  2.       In these situations, either party to the marriage may seek an annulment by applying to the court for a decree of nullity. The court will then consider the evidence and, if satisfied, issue the decree, thereby declaring the marriage voidable. It is important to note that once a marriage is annulled, it is treated as if it never existed.

C. Non-Marriage

  1.       In addition to void and voidable marriages, there exists a distinct category known as a non-marriage. The notion of non-marriage, a term not explicitly defined in statutory law but rather developed by the courts, provides a framework for the judicial discretion to declare certain marriage ceremonies as devoid of any legal existence. This type of marriage is neither void nor voidable; its formation is so fundamentally flawed that it is deemed to have never existed. This court-established concept allows for the recognition of situations where a marriage ceremony is so far removed from the traditional meaning of marriage that it is deemed not to exist at all. Consequently, no decree of nullity or decree absolute will be issued by the courts in such cases. This absence of legal recognition implies that no petitions for alimony, housing division, child custody, or other related matters can be submitted, let alone approved. Instances where non-marriages may be recognized include marriages enacted on stage, television, or film, as well as playful ceremonies between children.

1.Importance of Facts

  1.       To classify a marriage as void, voidable, or non-marriage, the factual circumstances play a crucial role, with judges relying on all pertinent information to guide their determination. Some factors, such as pregnancy or a blood relationship, are self-evident. The complexity arises when a religious element is introduced into a ceremony without the requisite civil formalities. Judges must scrutinize the true intention of the parties to assess their genuine commitment. Additionally, the celebrants stance is taken into account: Did they believe they were witnessing a valid marriage with legal consequences? Was the marriage conducted in a registered designated building or place of worship? Was the celebrant authorized to officiate? These issues came out quite clearly in the Akhter v Khan case.
  1. The Akhter v Khan judgment

(a)The Facts

  1.       In the Akhter v Khan case, a significant ruling by the Court of Appeal addressing a unique non-marriage scenario, we are taken back to 1998 when a couple celebrated their marriage in London through a nikah, a traditional Muslim marriage ceremony. What sets this case apart is that the imam overseeing the ceremony wasnt recognized as an authorized person, and the venue, a restaurant, lacked proper registration. Despite their awareness that their union lacked legal recognition in England, the couple mutually agreed that a civil marriage would follow. Over the subsequent years, the family grew with the birth of four children, and they even temporarily moved to Dubai. The wife consistently brought up the matter of a civil marriage, but the husband persistently dismissed it. It wasnt until November 2016, amidst escalating domestic violence, that the wife initiated divorce proceedings. The classification of this marriage as a non- marriage—a status initially rejected but later upheld on appeal—adds a layer of complexity to the legal narrative.

(b)Court of Appeal Decision

  1.       The appellate courts unanimous decision to overturn the trial courts ruling was based on several key arguments. Firstly, the Court of Appeal rejected the trial judges flexible approach, which involved interpreting Article 11 of the Matrimonial Causes Act 1973 in light of the European Convention on Human Rights (ECHR). The Court of Appeal acknowledged the fundamental nature of Articles 8 (right to respect for private and family life) and 12 (right to marry and found a family) of the ECHR, as well as Article 1 of Protocol No. 1 of the Convention (right to respect for property). However, the court clarified that Article 8 should not be interpreted as obligating the State to recognize a religious marriage.
  2.       Secondly, the Court reaffirmed a well-established precedent: when a religious ceremony does not meet the criteria for being qualifying, indicating non-compliance with English law requirements, the legal status is categorized as non-qualifying rather than void marriage. In emphasizing these criteria for non-Anglican, non-Jewish, or non- Quaker marriages, the judges highlighted the need for a registered building, the publication of bans with the registrar, the issuance of a certificate, and the presence of the registrar or an authorized person.
  3.       Above all, the judges clarified that the parties were fully aware of the implications of their actions and were not ignorant of the fact that a subsequent civil ceremony would be necessary to validate their marriage. The presence of children does not alter the situation.

3.Reception of the judicial decision

  1.       As of the present, the judicial discussion may be concluded, yet it continues to provoke responses, particularly from advocates of secularism (a), those urging Supreme Court intervention (b), and those who view it as a potential source of discrimination (c).Position of the National Secular Society (NSS)
  2.       Supporters of the separation between Church and State, notably the NSS, argue that the recent Court of Appeal ruling highlights the urgent requirement for a thorough overhaul of English couples rights. The NSS advocates for the adoption of a model wherein matrimonial affairs are solely overseen by the civil registrar, and the notion of registered buildings is discarded.
  3. Intervention by the Supreme Court
  1.       Some contend that a comprehensive revision of English couples rights through parliamentary channels may be unnecessary. However, there is a growing call for the Supreme Court to weigh in on the matter. Currently, due to the implications of the leave to appeal system, the highest court has not had recent opportunities to delve into such issues. Consequently, the Court of Appeal more frequently takes on the responsibility of ruling on these matters, showcasing a tendency to favor the concept of non-marriage, particularly in cases of contentious religious marriages.

4.Potential source of discrimination

  1.       Some critics contend that the decisions of the Court of Appeal may carry discriminatory implications., Some authors highlight that marriages resembling the one discussed in the judgment—those not registered civilly and officiated by an unauthorized person—have historically been categorized as void marriages, not as non-marriages.24 These includes cases such as: Gereis v Yagoub [1997] 1 FLR 854 (Coptic Orthodox church marriage), Ghandi v Patel [2002] 1 FLR 603 (Hindu custom marriage) and MA v JA and the Attorney-General [2012] EWHC 2219 (Muslim marriage). However, an important counterpoint to underscore here is that these previous cases did not all involve Muslim marriages. Therefore, the argument of interreligious discrimination is not very convincing.
  2.       In summary, the crucial factors for English judges in determining the categorization of a marriage as valid, void, or non-existent/non-marriage involve assessing the original intentions of the parties and the officiant. The focus is on discerning whether the law was knowingly violated. Additionally, the form of the ceremony is a key consideration, requiring adherence to a recognized form capable of producing a valid marriage under English law. The judges prioritize the ability to distinguish between couples genuinely and innocently believing in their marriage and those deliberately violating the law. In the former case, the marriage is categorized as valid, voidable or void. In the latter, it is deemed a non-marriage. This reasoning aligns with the principles of pure Common Law and Equity. Presenting a case before the Supreme Court based on interreligious discrimination is unlikely to alter its stance on non or void marriages.

D.        The Concept Of Liminality

  1.       Regardless of the reasons put forward - whether it be for greater equality among religions, better protection of vulnerable individuals, particularly women or simplification of procedures - many are convinced that a comprehensive overhaul of English family law, especially the concept of non-marriage, has become necessary, even urgent. This term is frequently linked to unregistered Muslim marriages, leading to diverse repercussions. Taking a more anthropological than legal standpoint, the question arises as to whether revamping the law is the sole, or even the most effective, solution.
  1.       Certainly, as asserted by Prof. Rajnaara Akhtar, European societies, particularly amid recent immigration, are undergoing a transitional phase. Drawing upon the concept of liminality, which was introduced by anthropologist Arnold van Gennep, one can perceive the aforementioned situation not as indicative of isolation or communal withdrawal, but rather as a manifestation of integration. The concept should be grasped as a transitional process from one set of cultural norms to another. It extends beyond being simply one of the phases of rites of passage. Gennep notes that it is just but one of the phases of rites of passage situated between two others, namely: preliminal rites (or rites of separation) and postliminal rites (or rites of incorporation).
  2.       Separation, transition, incorporation: three phases, three evolutions, three concepts. The separation phase should be understood as the detachment from a pre-existing position or place in society X; transition as the evolution to a new world, different from the one before, an inherently ambiguous period, and incorporation witnesses the birth of a new person, transformed, occupying a new place in a new society.
  3.       As concluded by Professor Akhtar, the British Muslim community is currently undergoing a substantial cultural transition, challenging the perception of isolation. The intensified cultural shock faced by members of this community, surpassing that of previous generations of immigrants from other European states (without undermining its significance), suggests that these communities require additional time for complete integration.


  1.       In the interim, as we await full integration, a unique coexistence of social norms prevails, allowing specific family relationships to develop parallel to English family law, all quite intentionally. This leads to the phenomenon of unregistered marriages, where emphasis is placed on rituals, sidelining legal rights, ultimately resulting in a situation of celebrating rites and conceding rights. Following this line of thought, there seems to be no imperative to alter the existing state model, as integration is anticipated to happen eventually, reinstating a shared rhythm based on established norms. Nonetheless, the liminal phase may persist in a perpetual state of flux, as emphasized by Prof. Akhtar. The question of whether English family law should undergo reform thus remains an open discussion to this day!

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1 Vishal Vora, The Problem of Unregistered Muslim Marriage: Questions and Solutions, Family Law 46 (2016) 95.

2 Rajnaara Akhtar, Modern Traditions in Muslim Marriage Practices, Exploring English NarrativesOxford Journal of Legal Studies 7 (2018) 428.

3 Vora (n 1).

4 ibid.

5 Akhter v Khan - Her Majestys Attorney General (Appellant) v Nasreen Akhter and Mohammed Shabaz Khan (Respondents) and Fatima Mohammed Hussain and Southall Black Sisters (Interveners) [2020] EWCA Civ 122.

6 Vora (n 1).

7 De Reneville v De Reneville [1948] 1 All ER 56, CA 60.

8 Marriage Act 1949, Section 43.

9 Matrimonial Causes Act 1973, Sections 23 and 24.

10 Matrimonial Causes Act 1973, Section 11.

11 Matrimonial Causes Act 1973, Section 12.

12 Rebecca Probert, The Evolving Concept of Non-marriage (2013) 25 (3) Child and Family Law Quarterly 314, 318.

13 Stephen Gilmore and Lisa Glennon, Hayes and Williams Family Law (Oxford University Press, 2020) 11.

14 Akhter v Khan (n 5).

15 Akhter v Khan [2018] EWFC 54.

16 Akhter v Khan (n 5), § 102.

17 ibid, § 123.

18 ibid, § 123.

19 ibid, § 123.

21 Shabana Saleem, Miranda Fisher, and Vishal Vora, Islamic Marriages: Given the independent review into the application of Sharia Law in England and Wales, what is the way forward? Family Law (2018) 552.

22 ibid, 556.

23 Valentine Le Grice, A Critique of Non-Marriage, (2013) 43 Family Law 1278.

24 Barton, C. and Probert, R., The Status of a Religious-only Marriage: Valid, Void or Non? Akhter v Khan (2018) Family Law 48, 1540–1547, 1543.

25 R v Bham [1966] 1 QB 159.

26 Hudson v Leigh [2009] EWHC 1306.

27 Vishal Vora, The Continuing Muslim Marriage Conundrum: The Law of England and Wales on Religious Marriage and Non-Marriage in the United Kingdom (2020) Journal of Muslim Minority Affairs 40 (1) 148-162.

28 Akhtar (n 2) 431.

29 Szakolczai, A., Liminality and Experience: Structuring Transitory Situations and Transformative Events (2009) International Political Anthropology 2 (1) 141–172.

30 ibid.

31 Arnold van Gennep, The Rites of Passage. (Routledge & Kegan Paul, 1977) 21.

32 Akhtar (n 2) 431.

33 ibid.

34 Rajnaara Akhtar, Unregistered Muslim Marriages: An Emerging Culture of Celebrating Rites and Conceding Rights, in J. Miles, P. Mody & R. Probert (eds.), Marriage Rites and Rights (Oxford: Hart Publishing, 2015) 167.

35 Akhtar (n 2) 451.

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