We Thought We Got Married? But We Can’t Divorce?

The Law of England is of course always changing, in order to reflect the fact that day to day life changes.

That does not mean that the Law can be considered to be whatever you want it to be. At least, not for the time being. I think there is still a consensus among the British that certainty in the Law is a good thing.

In the area of Marriage laws, in England and Wales, if you want to get married, there are certainties – rules. Rules as to your ages, your relationship to each other (you cannot marry your brother, etc.) whether you are actually unmarried (bigamy is a crime) etc.

If you are going to persuade the British state that you got married in England, you need to have a marriage certificate.

[I have blogged earlier about the chap who had never been to Ghana but found out that a ceremony there which he did not attend resulted in him being legally married in the eyes of the English Courts. -Link Here- – bit of an unusual one that was. This Blog is not about that!]

So eyebrows were certainly raised in 2018 by the judgment in the case of Akhter and Khan when Mr Justice Williams decided that a couple who had never married were in fact parties to a “void” marriage.

When Muslim believers attend a Mosque to marry each other in a Muslim country such as say Pakistan, the religious ceremony of marriage called the “Nikah” is effective to create their marriage. If that couple travels to live in England, the English Courts will accept that they are married. Because, it was a ceremony conducted in Pakistan where it resulted in a marriage recognised in Pakistan. And so when they come to England, they are of course still married and England accepts that.

But if it takes place in England, the Nikah alone does not create a marriage recognised in England. Because the rules in England are not the rules of Pakistan. This is well understood among Muslims in England and indeed many mosques here will not celebrate a Nikah unless a civil marriage has already taken place.

And in the case above, the wife was well aware that English law requires an English ceremony sufficient to result in an English marriage certificate and her evidence made it clear that she had joined in the Nikah on the clear understanding that it would be followed within a very short time by an English civil marriage.

So it is unlikely that the wife was truly expecting her application for an English divorce to be allowed by the Judge and the whole of the English legal profession was extremely surprised when it was. The Judge said in effect:- yes you aren’t married, but you can have a divorce – and also therefore the benefit of all of the English divorce laws as to the division of marital assets, and maintenance and child maintenance rights etc.

Here is a link to the case report –link here-

Once again – “you aren’t married but you can have a divorce”.

Really?

The Judge was trying to persuade himself that the Nikah alone resulted not in a “Non-Marriage” like everyone thought, but in a class of marriage called a “Void” marriage.

An example of a void marriage might be the marriage of Mr Rochester to Jane Eyre at the first attempt if it had ever happened, and happened in the present century.

Jane did not know that Rochester was already married to mad Bertha locked in the attic. She understood that her proposed marriage was real, would have assumed she was properly married if the ceremony had completed. If she later found out the marriage was void, she could get therefore divorced.

Contrast this with a “non-marriage” – say, one of the marriages in Four Weddings and a Funeral. Dur, These are film actors pretending. They cannot get a divorce.

But if our Judge thought a Nikah created a void marriage, I’m pretty sure no-one else did.

His decision comes as further example of the maxim that “Hard cases make bad law”. The wife’s situation here was no doubt a hard case.

Most unfair of her “husband” to take her through a ceremony which was morally and religiously binding upon her and upon her conscience – doing so in full knowledge that it had no legal significance in the Country where it took place unless it was followed by an English civil marriage which he had only pretended he would agree to. In the full knowledge therefore that he could walk away from her whenever he chose, free from sanctions of the English divorce courts.

If the refusal of the husband to proceed with the English Civil marriage had caused the wife to walk away from the relationship almost immediately, I do not think the Judge would have found it possible to find the marriage to be a void one or any kind of one.

But she did not seek to walk away immediately, in fact by the time of the case the “marriage” had lasted for eighteen years and there are four children.

But in trying to help the wife with her “hard case”, the Judge’s decision can now be seen to have resulted in “Bad Law”.

Because a marriage either is, or isn’t a marriage. It complies with the rules, or it doesn’t. It cannot be a sort of “wait and see” sort of thing, whereby a “non-marriage” morphs into a “void marriage” after what – a year? Two? Eighteen? A child? Four? It really cannot be that we don’t know whether we are married when we leave the ceremony, it depends what we do next?

So here is the outcome, hottish off the press – the decision of Mr Justice Williams has been overturned – Link Here –

The judgment has restored certainty. But it has of course returned participants in a Nikah to their previous very difficult position.

As her Counsel said – “in this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying he has thus left her in the situation where she does not have a marriage which is valid under English law …… Once she had embarked on the process going through the Nikah ceremony and consummating the marriage, the reality for this wife and I suppose many others in her situation is that [just walking away from the “marriage”] was not a realistic option for her. Thus if this marriage is not a valid marriage according to English law nor a void marriage she is left without the remedies which arise from divorce or nullity.”

Any answer I could suggest of course comes too late for this lady, mere hindsight. But my suggestion is that the English Civil ceremony should come first before the Nikah, or better still should be combined. Many mosques are approved venues for marriage and the Nikah and the English marriage can take place together. (It took me all of ten seconds to find the North Finchley Mosque webpage – link here-).

Of course the preservation of divorce rights is a bit of a pessimistic priority for getting married. Here is an optimistic song –Let’s get married, you can have a cat, just as long as it barks-

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