Monday, 3 September 2018

Nullity Decree in Ground Breaking Nikah Case

No marriage ceremony recognised by the law of England and Wales means no divorce or nullity decree here. And no divorce or nullity decree means that, when the relationship breaks down and the parties separate, neither can ask the court to make the same kinds of orders for maintenance, transfer of property, payment of lump sums of money and sharing of pensions as it can make when there is a divorce of nullity decree. Tough!

But in a recent watershed decision of the High Court, * the 'wife' who had gone through just an Islamic religious Nikah ceremony without the usual civil marriage ceremony to follow it, was granted a nullity decree. This will now enable her to seek financial orders against the 'husband' which would otherwise have been denied to her. 

Both parties had undertaken the religious ceremony in Dubai and after it they considered themselves to be married to each other and held themselves out to the world at large as husband and wife. They  were treated as validly married in the United Arab Emirates while there and were together for 18 years during which time they had four children. The failure to go through with a civil ceremony, held the judge, was entirely due to the ‘husband’s’ refusal to arrange it and the ‘wife’ had frequently sought to persuade the ‘husband’ to do so.

Nullity is provided for by section 11 of the Matrimonial Causes Act 1973 where certain requirements of the Marriage Act 1949 have not been complied with. The ceremony in question must be of a kind contemplated by section 11. Was it in this case? The judge ruled that the court has to consider this on a case by case basis and  should be able to take a holistic view of a process rather than a single ceremony. Among the particularly relevant factors were whether the ceremony purported to be a lawful marriage; whether it bore all or enough of the hallmarks of marriage; whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and whether the failure to complete all the legal formalities was a joint decision or due the the failure of one party to complete them. 

The judge concluded that the ceremony was a marriage within section 11 and entered into in disregard of certain requirements as to the formation of marriage (see s11(a)(iii) of the Matrimonial Causes Act 1973) which made it void. The wife was entitled to a nullity decree.

The decision is likely to lead to many other parties to religious only marriage ceremonies applying for a nullity decree. Not every one of them will succeed but many probably will.

Plenty more on divorce, nullity and other aspects of family law in my book Breaking Law.

*  A v K and another [2018] EWFC 54