Sharia Series; validity of marriage, a focus on Tousi v Gaydukova [2023]

The Office of National Statistics recorded that in 2019, there were 219,850 legally valid marriages in England and Wales. The number of ‘weddings’ however will be much greater with a Muslim population of 3,868,133 in the UK. According to a survey for Channel 4 in 2017, 6 in 10 women in the UK who had a traditional Islamic wedding ceremony did not also have a legally recognised marriage.

Many Muslims will marry in ceremonies which are religious only and do not comply with the regulations required to be registered as a lawfully recognised marriage in the courts of England and Wales. This type of marriage is often referred to as a ‘non-marriage’ and was considered by both the Family Court in 2018 and later by the Court of Appeal in 2020.

Akhter v Khan [2020] EWCA Civ 122

Mr Khan and Mrs Akhter wed in an Islamic ceremony only at a London restaurant in 1998. The parties had intended to follow the marriage with a civil ceremony and to undertake the process required for their marriage to be recognised under English law, however this never happened. In England, a marriage ceremony can either be valid, void or a ‘non-marriage’. When the wife petitioned for a divorce, the court held that the ceremony was not valid, nor was it a ‘non-marriage’ and therefore in in the first instance, Williams J held that the marriage was void. This entitled the Wife to a decree of nullity, (i.e. confirmation that they were no longer married).

This was a huge win for Mrs Akhter, as a grant of nullity gave rise to her ability to make claims for financially remedy as if they had a valid marriage in the jurisdiction. However, Mr Khan appealed to the Court of Appeal and his appeal was allowed. It was held that the marriage had ultimately failed to comply with the formalities required for even a void marriage.

You may wonder why I’m writing an article about a case from 2020? Well, in February 2023 the question of ‘non-marriages’ has arisen again.

Tousi v Gaydukova (Revi) [2023] EWHC 404 (Fam)

The circumstances in this case differ from that of Akhter and Khan, however the core of the issue is the same as it concerns the validity of a marriage.

Background

This case concerns a husband of Iranian nationality and a wife of Ukrainian nationality. The parties married at the Iranian Embassy, Ukraine in December 1997. It is important to note that the marriage was not registered with the Ukrainian State authorities, despite the wife attempting to register it on three occasions, the husband did not cooperate.

The parties moved to the UK in 2001 and the Home Office granted entry clearance to the wife as a validly married spouse of the husband. Fast forward to 2010 and the parties were granted a Housing Association tenancy in their joint names for a property in Notting Hill.

Legal proceedings begin

The catalyst to legal proceedings was the separation of the parties in December 2019. The wife applied for a non-molestation and occupation order in April 2020. The wife moved into a two bedroom flat with their youngest daughter provided by the Local Authority. Meanwhile, the non molestation order was granted however the occupation order was refused. The judge observed that the wife could apply for a transfer of the tenancy.

Divorce

The wife applied for a divorce in January 2021, however her application was refused without a marriage certificate and Judge Rogers suggested she applied for a declaration of status under s55 of the Family Law Act 1986, i.e. for a declaration from the court confirming that the marriage was a valid marriage . The wife withdrew her petition and later in the year, in June 2021, moved into a different 2 bedroom flat with her younger daughter.

Transfer of tenancy 

The wife applied for a transfer of the tenancy into her sole name. This application was made under s53 and Schedule 7 of the Family Law Act 1996 (the 1996 act) which applies to  those who are married or have been through a form of marriage capable of being subject to a nullity order (remember the initial decision in Akhter v Khan?) This provision allows the transfer of a tenancy between spouses to be made after a conditional divorce or nullity order is ordered.

Of course, in this case neither had been pronounced by the court and the provisions within Schedule 7 referred specifically to a ‘spouse’, however the 1996 act  also extended the provisions regarding transfer of tenancy orders to cohabitants.

A key difference here is that cohabitants can apply for an order at any time and it can be granted to take place at any time. Married parties can only apply once they have a conditional order/ nullity order and the transfer cannot take place before the final order is granted.

Judgement of Recorder Allen KC

The matter initially went before Recorder Allen KC in February 2022 and a transfer was granted on 25 March 2022 to be in place after 14 days. The husband pointed out that the parties were spouses for the purpose of Schedule 7 and therefore the court did not have jurisdiction to make the transfer order before the decree nisi (now a conditional order) was granted.

The order was stayed by consent and the husband issued an appeal notice on 3 May 2022. The first ground of appeal, which was granted, was that the Recorder should not have made the transfer of tenancy order without first determining whether the parties were legally married.

Appeal before Mostyn J

The Husband’s case was that the ceremony in the Ukraine was a genuine attempt to enter into a valid marriage (a similar argument to that of the wife in Akhter v Khan.) He also argued that in the Ukraine, a marriage in a diplomatic mission is capable of giving rise to a valid marriage if both spouses are citizens of the state of the mission.

The Wife’s case was that the marriage was a “non-marriage” which cannot give rise to a nullity order and therefore the order of tenancy was correctly made.

Judgment

During his Judgment Williams J explored the following:

• The history of the formation of marriage;
• The taxonomy of validity;
• The history of a void marriage;
• Nullity and public policy;
• The case of Akhter; and overseas ceremonies.

In his summary, Mostyn J noted that the ceremony which took place at the Iranian embassy was not a valid marriage, as there was a requirement for both parties to be of Iranian nationality. The parties therefore needed to register their marriage which they did not do. Under Ukranian law, the marriage was also incapable of later ratification and there would therefore be no matrimonial relief offered to the parties. The appeal of the husband was therefore dismissed as Mostyn J held that the parties are not to be treated as spouses for the purpose of Schedule 7 and the power to transfer the tenancy was executed correctly.

So what does this mean going forward? 

In the judgment of both of the cases discussed in this article, a marriage did not broadly comply with the requirements in Part III of the Marriage Act 1949 and therefore was held to be a ‘non-marriage’.

In his postscript, Mostyn J addressed these cases, notably referring to Islamic marriages and said:

“In my opinion the situation is a disreputable mess and urgently needs to be definitively clarified both substantively and procedurally.This can only be achieved…by the Supreme Court.”

We await a case to be brought before the Supreme Court to clarify the law on these matters. In the meantime, we have a review from the Law Commission which addresses these ‘non marriages’ and how the law can be changed to mitigate further cases like these being brought before the court for clarification.

I address Mehr and wedding gold in my October 2023 article in this series on Sharia matters in English and Welsh family law.