Akhter v Khan

The case of Akhter v Khan illustrates the difficult position many people find themselves in if they are only religiously married, rather than legally married, and subsequently split up with their partner.

The case concerned a couple who had undergone an Islamic wedding ceremony, a Nikah, in a restaurant (rather than a mosque registered for marriage) in 1998. The wife then petitioned for divorce in 2016, but the husband asserted that the parties had not entered into a legally valid marriage under English and Welsh law.

It was then accepted that the ceremony did not create a legally recognised valid marriage, but the wife argued that the presumption of marriage validated the marriage, or failing that, the marriage was void.

The couple had lived as husband and wife since their Nikah, having also lived in Dubai between 2005-2011, where they were recognised by local authorities as being married. The wife said that they had intended to have a civil wedding ceremony, which the husband disputed.

Ultimately, the Court of Appeal held that the couple’s Nikah was a ‘non-marriage’ under English and Welsh law. This meant that the wife was not entitled to a decree of nullity nor recourse to financial remedies.

This case highlights the risks of entering into a religious marriage which is not legally recognised.

If you are considering or going through a divorce and are concerned that your religious marriage is not legally recognised, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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the 2018 judgment

The 2018 judgment, Akhter v Khan (Rev 4) [2018] EWFC 54, was heard by Mr Justice Williams in the family division of the high court. He held that there should be a flexible interpretation of s.11 of the Matrimonial Causes Act and found that the couple had a ’void marriage’, which entitled the wife to a decree of nullity (now a nullity of marriage order) under the Act, as well as the ability to apply for financial remedies.

Williams J came to this decision on the basis that the marriage had been “entered into in disregard of certain requirements as to the formation of marriage” but that “in every sense save for the issue of legal validity this was a marriage and a long one at that”. He placed weight on the wife’s expectation that the parties would have a civil ceremony after their Nikah and determined that the husband had either intended to arrange a civil ceremony and then subsequently changed his mind, or had never intended to do so, but had led the wife to believe otherwise. He determined that either way, the parties had agreed or had an understanding that they would have a civil ceremony, which the husband then refused to uphold.

In coming to this decision, Williams J also considered the right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR), the right to marry under Article 12 of the ECHR and the impact of the judgment on the couple’s children, citing Article 3 on the UN Convention on the Rights of the Child (UNCRC):

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

The decision was welcomed by many women’s rights activists, but concern was also expressed by people who felt that the judgment created uncertainty in the law.

The 2020 judgment

The Attorney General subsequently appealed the decision, and it was overturned by the Court of Appeal in HM Attorney General v Akhter & Ors [2020] EWCA Civ 122. The court ruled that the couple’s nikah was a non-marriage or ‘non-qualifying ceremony’ rather than a void marriage. As such, the wife was not entitled to a nullity of marriage order nor any financial remedies.

The court’s reasoning was that ultimately, the couple’s ceremony did not create a void marriage because it was a non-qualifying ceremony, which both parties knew had no legal effect. It held that the effect of a ceremony must be determined at the date it is performed and cannot be changed by the intentions of the parties.

Regarding Williams J’s justifications in relation to the ECHR and UNCRC, the Court of Appeal determined that neither of the provisions cited were engaged in the case (in particular, the right or otherwise to the grant of a decree of nullity does not in itself engage Article 8). A finding that a couple never married is not an infringement on their right to marry under Article 12. Furthermore, a person is not obligated to marry someone just because they said they would – an engagement may be called off right up until the last minute before a wedding ceremony.

In relation to the best interests of the children, the court held that the case could not be described as an action concerning them and rejected “that the best interests of a child can turn what was neither a void nor valid marriage, into a void or valid marriage”.

The impact of akhter v khan

Akhter v Khan garnered significant media attention, shining a light on the precarious position of those whose religious marriages are not legally recognised in England and Wales.

The lack of public awareness on the legal position of religious marriages has caused widespread concern, particularly amongst women’s rights groups who highlight that it is often women who are the financially weaker party in a relationship, and subsequently are most vulnerable when in religious-only marriages.

Muslims are the second largest religious group in the UK, according to the Office for National Statistics. However, Islamic marriages are not legally recognised in England and Wales, unless certain legal criteria are met. Failure to meet these requirements will result in the marriage being considered a ‘non-marriage’, as in Akhter. 

Given the issues posed by being in a religious only marriage, there have been calls for wedding law reform, to simplify the law and provide universal rules for all weddings, with the Law Commission proposing a system regulating marriage through the regulation of marriage officiants, rather than approved buildings.

Further resources

• Islamic marriage and divorce in England and Wales - House of Commons Library
• Appeal Court rules Islamic marriages invalid in UK - BBC News
• Landmark court ruling finds Muslim couple’s Sharia marriage not valid | UK News | Sky News
• PRESS RELEASE: Akhter v Khan | Southall Black Sisters