Nikah-only marriage: a Scottish remedy?

Ironically, it was on St Valentine’s Day that the Court of Appeal gave its judgment in Attorney General v Akhter [2020] EWCA Civ 122. Setting aside the decision of Wliiliams J in the Family Division (NA v MSK [2018] EWFC 54), it concluded that a Nikah-only marriage – a Muslim marriage ceremony unaccompanied by a civil ceremony – created a “non-marriage”, rather than one which was void. The distinction is important because in the latter case the petitioner could have sought financial remedy orders under the Matrimonial Causes Act 1973. In short, a woman who participated in a religiously-significant marriage ceremony, then lived with her partner as his wife for some 18 years and had four children with him, was left without redress under English law.

A Channel 4 programme, The Truth About Muslim Marriages (21 November 2017), estimated that there are thousands of Nikah-only marriages in the UK, and the public interest in the case was reflected in the fact that, while the couple had by then reached a settlement, the Attorney General pursued the appeal, and interveners were granted leave.

Should such a case arise in Scotland, are there remedies? While the focus here is on couples whose relationship breaks down, it is worth remembering that a Nikah-only marriage may also present challenges in respect of succession.

Attorney General v Akhter

The relevant facts are set out fully at [2018] EWFC 54, paras 18-29. Briefly, on 13 December 1998, Nasreen Akhter and Mohammad Shabaz Khan went through an Islamic marriage ceremony, a Nikah, in London in front of “important members of their family and community”. Williams J was “satisfied that the parties had agreed that the Nikah ceremony would be followed by a civil marriage ceremony”, and that “they understood that, without such a ceremony, they would not be legally recognised as being married”. However, no civil ceremony took place. They lived together in England until 2005, then in the United Arab Emirates (where the Nikah certificate was accepted as proof of marriage), before returning to England in 2011, and had four children together. They separated in 2016.

When Akhter began divorce proceedings, Khan responded that the couple were not legally married. Akhter replied that she was entitled to a decree of nullity under the 1973 Act, s 11(a)(iii), due to failure to comply with the required formalities. The issue, then, was whether there was a void marriage or, as Khan claimed, no marriage at all. As we have seen, the distinction is significant because, where a court grants a decree of nullity, it can also make financial remedy orders akin to those available on divorce.

While it recognised that there were wider concerns about the regulatory framework for marriage, discussed by the Law Commission for England & Wales in Getting Married, A Scoping Paper (2015), the Court of Appeal confined itself to addressing two issues:

• whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of s 11 of the 1973 Act; and
• if there are, whether the 1998 ceremony was such a ceremony, currently described as a non-marriage.

Both courts were alert to the sensitivity of using the term “non-marriage”, with Williams J observing that it felt “instinctively uncomfortable” and “might rightly be regarded as insulting” ([2018] EWFC 54, para 8). The Court of Appeal agreed, indicating that a preferable expression would be “non-qualifying ceremony” ([2020] EWCA Civ 122, paras 7 and 66).

After an extensive exploration of the relevant English legislation and case law, the Court of Appeal concluded that there can be “ceremonies which do not create a marriage, or even a void marriage, within the scope of the [legislation]… and which do not, therefore, entitle the parties to a decree of nullity” (para 65). Unlike Williams J, it did not accept that the European Convention on Human Rights, articles 8 or 12, or article 1 of its First Protocol, required a different view (para 120). Again, in contrast to the reliance Williams J placed on the United Nations Convention on the Rights of the Child, article 3, it took the view that “the interests of children can play no part” in determining whether a ceremony is a non-qualifying ceremony or a void marriage (para 119). Thus, there was “no ceremony in respect of which a decree of nullity could be granted” (para 128).

A similar outcome in Scotland?

Suppose a Nikah-only ceremony in Scotland is followed by cohabitation here. Such a ceremony would not be sufficient to establish a marriage under the Marriage (Scotland) Act 1977. While it would not fall foul of any of the grounds rendering a marriage void under s 5(4) or s 20A, there would be no compliance with the required preliminaries to a regular marriage in ss 3-6 (lodging of notice, issuing of marriage schedule, etc). Nor could the ceremony benefit from the “saving” provision, s 23A, since no marriage would have been registered.

The crucial question is whether a Scottish court would classify the result as a void marriage or as one that did not exist in law. As in England, the distinction is important because the Family Law (Scotland) Act 1985, s 17, permits the court, when granting declarator of nullity, all the same powers in respect of financial provision as it has when granting decree of divorce.

Professor Clive (Husband and Wife (4th ed, 1997), para 07.001) countenances the possibility of a “non-existent marriage”, but the example he cites (the parties being respectively male and female) relates to a matter that was, at the time, fundamental to the concept of marriage in Scots law. In any event, he prefers the distinction between cases where there has been “some semblance of marriage (usually a marriage ceremony and an entry in the register of marriages)”, resulting in something to declare invalid, and cases where there is “not even a semblance of marriage… there is nothing to be declared invalid”.

How a Scottish court would classify a Nikah-only marriage is unknown, but it might take a different view to the Court of Appeal and conclude there was something to be declared void. It might be persuaded, as was the Family Division, that the ECHR requires it to take that path ([2018] EWFC 54, paras 93-95). It might conclude that according primacy or paramountcy to the best interests of the children involved is further reason to do so, a point that might become all the more persuasive once the United Nations Convention on the Rights of the Chid is incorporated into Scots law.

However, were a Scottish court to conclude that declarator of nullity was not competent, someone in Akhter’s position has other avenues by which to secure redress. (A settlement might be facilitated by a Sharia council, but discussion of that avenue is beyond the scope of this article (see Khalda Wali, “Divorce in Scots law and Sharia law”, Journal, March 2016, online edition).)

Cohabitation with habit and repute

Marriage by cohabitation with habit and repute became a flimsy shadow of its former self, following what is described, in the headnote to s 3 of the Family Law (Scotland) Act 2006, as its “abolition”. Whether it was truly abolished is open to debate, since a vestige of it remains, providing a cure for defective foreign marriages where one of the parties dies domiciled in Scotland, the surviving partner is also domiciled here and the parties believed that they were married to each other up until the death of the deceased (s 3(3) and (4)).

For our present purpose, it is important to note that the culling of the concept was of prospective effect only. Section 3(2) provides that the abolition has no effect “where the cohabitation with habit and repute –

(a) ended before the commencement of this section [4 May 2006];
(b) began before, but ended after, commencement; or
(c) began before, and continues after, commencement”.

The couple in Akhter lived together from 1998 until 2016, putting their relationship within s 3(2)(b); but would a couple who acted in much the same way in Scotland meet the familiar requirements for marriage by cohabitation with habit and repute? There seems no doubt that they had the capacity to marry. No fixed duration is specified, much depending on “the nature and the quality of the cohabitation and repute during the period in question” (Kamperman v MacIver 1994 SLT 763, 764). Only cohabitation in Scotland counts (Dysart Peerage Case (1881) LR 6 App Cas 489), but, while time spent in the UAE would not count, the couple lived together for some seven years before leaving the UK, which is probably long enough (Shaw v Henderson 1982 SLT 211 (11 months enough); Mullen v Mullen 1991 SLT 205 (six months enough)). If so, the court could avoid getting into the thorny matter of whether the cohabitation between 2011 and 2016, after the return to the UK and after the 2006 Act came into force, should be considered at all on the basis that the cohabitation itself was continuous.

There are two possible obstacles. First, the parties were aware that the lack of a civil ceremony put the legal recognition of their marriage in jeopardy; Akhter had repeatedly tried to persuade Khan to have such a ceremony. Did their knowledge of the true legal state of affairs cast doubt on their own perception of their relationship, undermining its character as a marriage? The courts have not taken a consistent view (contrast Mackenzie v Scott 1980 SLT (Notes) 9, where declarator was refused, with Shaw v Henderson, above, and Dewar v Dewar 1995 SLT 467, where it was granted).

Secondly, it will be remembered that “although repute need not be universal it must be general, substantially unvarying and consistent and not divided” (Low v Gorman 1970 SLT 356, 359). Again, what the courts have regarded as sufficient has varied. While Akhter and Khan were regarded by friends and family as “married”, in the religious sense, some at least were aware that no civil ceremony had taken place. The imam had alerted Akhter’s father to the need for “a civil ceremony so that the marriage would be legally recognised”; and certain relatives had had both Nikah and civil ceremonies. If a court found insufficient repute that the couple were married, what other remedies might be available?

Non-marital cohabitation

The prospective nature of s 3 of the 2006 Act would be no help, of course, where a couple began to cohabit following a Nikah-only ceremony that took place after 4 May 2006. Like a person who failed to establish a marriage by cohabitation with habit and repute, such a Scottish pursuer could turn to the remedies available to non-marital cohabitants. In this respect, they would, again, be better placed than their counterparts in England & Wales. Despite the tenacity of Lord Marks of Henley-on-Thames, who introduced yet another Cohabitation Rights Bill at Westminster on 6 February 2020, the economically weaker, non-marital cohabitant south of the border is poorly served by the law.

In Scotland, a person who qualifies as a cohabitant in terms of s 25 of the 2006 Act, and raises the action no later than one year after the cohabitation ceased (s 28(8)), may make the claims specified in s 28. It is familiar territory that the remedies available are significantly less than the package available to a parting spouse or civil partner, but at least they offer an avenue by which to secure a measure of redress. The Scottish Law Commission is currently reviewing the law, and its newly published Discussion Paper on Cohabitation, which will be further analysed, asks whether separating cohabitants should come under a similar legal regime to divorcing couples. 

Other remedies

To borrow the terminology of cable television infomercials, “but that is not all”. Thanks to the recent Inner House decision in Pert v McCaffrey [2020] CSIH 5, the existence of a remedy under the 2006 Act is no bar to pursuing equitable remedies, like unjustified enrichment, assuming, of course, that the facts support such a claim.

A single ceremony?

While the opportunities in Scotland to secure redress, following a Nikah-only marriage, are greater than those in England & Wales, each has its limitations. Thus, if couples like Akhter and Khan want the legal protection afforded to spouses, it is important that they conclude a marriage that is valid under Scots law. They can still have a Nikah ceremony, but should have a civil ceremony as well. However, the Marriage (Scotland) Act 1977 provides for options that offer the potential for both elements of the marriage to be combined in one ceremony. A religious or belief body may apply for recognition as a prescribed body for the purpose of solemnising marriages or, not being such a body, may nominate individual members to do so (s 8). If these options are not being utilised by specific groups, it would be worth exploring why that is so and whether the methods of authorisation could be adapted to make them more attractive.