LANDMARK RULING ON ISLAMIC MARRIAGE OVERTURNED BY COURT OF APPEAL, BLM ACTING FOR INTERVENER, RESPONDS

 

  • Court of Appeal finds in favour of Attorney General in Akhter v Khan [2020] EWCA Civ 122, and will not uphold judgment of Akhter v Khan [2018] EWFC 54
  • BLM acted as intervener in case on behalf of Ms. H
  • Decision calls into question protections and financial remedies afforded to Muslim women and men seeking marriage dissolution

FRIDAY 14 FEBRUARY – The Court of Appeal has today shared its judgment on Akhter v Khan [2020] EWCA Civ 122. It has decided not to uphold a judgment handed down in 2018 by the High Court, where the landmark ruling of Akhter v Khan [2018] EWFC 54 found that Islamic marriage (nikah) fell within the scope of English marriage law. The Court of Appeal has instead ruled in favour of the Attorney General, who appealed the original decision of Mr Justice Williams.

Ms. Akhter wished to divorce her husband, but was aware that as they had celebrated a nikah and not undergone a civil ceremony in England or Wales (due to her husband’s repeated refusals), she would not be able to divorce through English courts. Instead she would have to seek an Islamic divorce through Sharia councils, which do not offer the same levels of financial outcomes for women, often leaving them with limited protection following dissolution. She took the case to the High Court.

The original judgment in the Akhter v Khan case represented a significant departure from current law, with the judge ruling that English law could apply to Islamic marriage. Whilst it was previously understood that a nikah did not comply with English law requirements for a marriage, the case of Akhter v Khan held that the nikah, originally granted in 1998, could be considered void, allowing Ms. Akhter to nullify the ceremony and pursue financial remedy, as though both parties had been legally married in England and Wales.

Today’s decision to not uphold the original judgment is especially significant for Ms. H, a woman who found herself in similar circumstances as Ms. Akhter. Ms. H entered into a nikah that both herself and her husband understood they did not create a lawful marriage under English law. When Ms. H came to end the partnership, she was informed she would not be able to divorce under English law as she had not had a valid or void marriage in the first place.

Given the similarities to Ms. Akhter’s circumstances, Ms. H was granted permission to join the appeal to argue that the decision of Mr Justice Williams should be upheld. Law firm BLM acted as an intervener on Ms. H’s behalf on a pro-bono basis, instructing specialist family law barristers 4PB.

Daniel Jones, partner at BLM and Head of Family Law in England and Wales, acted as intervener on behalf of Ms. H:

“Today’s judgment from the Court of Appeal is hugely disappointing for Ms. H, and the many individuals – particularly Muslim women – who find themselves in similar circumstances. The Attorney General’s intervention has fuelled a situation where those seeking to dissolve a nikah are not afforded the same protections as those seeking divorce under English law.

“BLM felt compelled to challenge this case so that our client, Ms H would have some sort of financial claim after seven years of marriage. This judgment is a real blow for all concerned.

“The decision to uphold the appeal on behalf of the government will leave Muslim women in the UK in ‘legal limbo’, compelled to turn to Sharia councils to pursue Islamic divorce. This often involves lengthy delays and does not afford women the same financial protections as would be granted if their ceremonies were recognised as a marriage under English law. It only seeks to inflict further stress for those undergoing an already incredibly tough and painful process.

“This matter is of fundamental importance to Muslim women across the UK. Whilst it has been a privilege to be involved in a potentially law changing matter, that could have had wide reaching positive consequences for so many people, it is clear that the law in its current state is wholly unsatisfactory. We had hoped that today’s judgment would have gone a long way in recognising this. Instead, it has again left Muslim women without the same financial protections afforded under marriage in England and Wales, leaving many women at great financial risk in unhappy relationships.”

The case was heard by Sir Terence Etherton, master of the rolls, Lady Justice King and Lord Justice Moylan.

 

ENDS

 

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