Since the judgement in the case of Akhtar v Khan we have been inundated with calls asking the same question, is nikah valid? Is it recognised? Is it legal? Well, leave the samosas in the fridge and don’t fry the jalebi until you’ve read this article. The short answer is No. The Akhtar case only answered the question ‘Is nikah void or invalid’. It did not and does not answer the question of legality or recognition.
In order for a valid marriage to exist certain requirements need to be fulfilled. If these are not complied with the marriage can either be void, voidable or invalid. In this case the couple had a lavish ceremony in a restaurant in London in front of 150 guests. For all intents and purposes it looked like a marriage was being conducted. However, and this is the important part, the marriage was never registered. For a marriage that takes place in this country to be legally recognised it must be registered. Previously, this omission has led the Courts to declare that a nikah was a ‘non marriage’. That it simply did not exist as a legal marriage. In this case however the Judge ruled that the marriage was ‘void’. The Judge commented that the parties “Entered into it with disregard of certain requirements as to the formation of marriage. It is therefore a void marriage and the wife is entitled to a decree of nullity.” This means that although it looked like a marriage it did not comply with the requirements of a legal marriage.
Before we all get excited about the future prospects of nikah being recognised or given some legal standing we have to remember that this was a unique case and the judgement is a reflection of this. The couple moved to and lived in Dubai. In order to do this they presented their nikah certificate to satisfy the authorities in Dubai that they were married and further, state authorities in England had treated them as husband and wife. They were therefore treated as though they were married and the authorities in Dubai accepted the marriage certificate. Under English law however, they are simply not married. They did not satisfy the criteria. Hence the Judge stated that this was not a case of a non-marriage but a case of a void marriage.
All this leads us back to the question of whether this means that the nikah is now recognised per se? Again the answer is still no. This was a unique case upon which hundreds of thousands of pounds were spent and which went to the High Court. No doubt this decision will now go to the Court of Appeal, Supreme Court and eventually European Court (if Brexit hasn’t happened by then!). The Judge has stated that each case will be judged on its own merits and circumstances. The only way to make sure that you have full rights under the Matrimonial Causes Act 1973 is to have your marriage registered in this country.
So the Court has not accepted sharia law nor has it recognised the nikah as legal. This has not opened the floodgates for all nikah marriages to be recognised. What it has done is opened the door for marriages that do not comply with the requirements of English law to be potentially made void and still have the right to apply for the division of the assets. It is a step in the right direction but let’s not order the ‘ladoos’ just yet.
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