Whether and how a religious marriage is recognised in law has profound consequences for couples and their children. This is the question at the heart of the Court of Appeal decision in Attorney General v Akhter and Khan [2020]. Here, the judges were faced with determining the status of a religious ceremony, conducted in a restaurant over 20 years ago – and in doing so, what family law rights the ‘wife’ has against her ‘husband’. In Akhter v Khan [2018] EWFC 54 the High Court argued for a novel solution to this question, through the law on null marriages. Widely praised for its pragmatism, the judge was able to avoid recognising their religious marriage as such, whilst still providing remedial protection to the ‘wife’ under Section 11 of the Matrimonial Causes Act 1973. The Court of Appeal has now reversed this decision and re-asserted the orthodox rules on recognising religious marriages.

To understand the significance of this case, we must tackle the confusing and bewilderingly complex nomenclature of valid, invalid/null and ‘non-marriages’ in English law. In simple terms, a valid marriage is one that comes ‘under’ the Marriage Act 1949 and satisfies all the formalities. A void marriage also comes ‘under’ the 1949 Act but fails to satisfy all the necessary formalities, and is ‘null’ or void under s11 of the Matrimonial Causes Act 1973. A marriage is considered to be void where the parties reasonably believe they have done everything necessary under the Marriage Act but actually have not. For void marriages, the parties are entitled to the same family law remedies that divorcing couples in valid marriages have under Part II of the 1973 Act.

In addition to valid and void marriages, there is a third category – non-qualifying ceremonies. These refer to ‘marriages’ that do not fall under the sorts of ceremonies envisaged by the 1949 Act at all. Parties in non-qualifying ceremonies are not entitled to any of the legal protections of void or valid marriages – they are treated as ‘legal strangers’. As legal strangers, they can only rely on limited remedies in contract or trust. They may have to turn to non-state, non-binding religious tribunals instead.

In Akhter and Khan, the couple entered a religious marriage (Nikah) at a London restaurant in 1998. They lived together, had children and held themselves out to be husband and wife for 18 years. The husband now contests this, claiming it to have been a religious blessing – with no legal effect. The facts of the case do not fit the quintessential void or null marriage category because the parties intended to conclude an additional civil marriage. They could thus not be said to have believed their marriage to be in compliance with the formalities in the Marriage Act. Even so, the High Court recognised this as a form of ‘void’ marriage. The High Court held that the right to family life and the ‘horizontal effect’ of the right to marriage under the ECHRapplied. Accordingly, when determining marital status, the court held that it had to take account of the right to family life – and the best interests of any children. Based on this, religious marriages such as that between Akhter and Khan could, ­even though they knew their ceremony was not legally binding, fall under the category of void marriage.

The Court of Appeal disagreed. It held that marital status must be certain, easily determined and tested at the time of the ceremony, without taking account of subsequent events. The right to marriage is not engaged at all because this case relates to what happens when people get divorced. Moreover, the court held that the right to marriage does not have horizontal effect as the wife was never prevented from leaving or entering into a valid marriage by her partner. This conclusion, it seems, is based on a highly artificial notion of freedom – one that entirely ignores the precarious lived reality of minority women in religious marriages, who may face a number of pressures from inside and outside their community to remain in a religious marriage. Although the right to family life is engaged, the Court of Appeal held that it is not violated because the barriers for entering a valid marriage are not high.

The precedent set by the case is that individuals who enter religious marriages knowing that they do not satisfy the formalities will be held to be in non-qualifying ceremonies. The only risk-free option is a registered marriage conducted in a legally acceptable venue as suggested by the Court, the Independent Review on Sharia Councils and feminist groups like the Southall Black Sisters. Information, education and getting religious marriages registered are the best ways to avoid injustice.  In the meantime, some women may still fall outside the cracks of the marriage regime.