Judgement forces backward step on women

Decision leaves minority women exposed to deception by abusive husbands.

In what can only be described as a sad and distressing judgement, the Court of Appeal has ruled that women who are unable to register their marriage in accordance with the law are not entitled to financial remedies on the break-up of their marriage.

In November last year Southall Black Sisters (SBS) intervened in an important case – Akhter v Khan – which has far-reaching implications for minority women’s marital rights.

In July 2018, Mr Justice Williams, a family court judge, decided that Nasreen Akhter was entitled to a decree of nullity of marriage, following the break-up of her 18 year-long marriage.

She had had a nikkah ceremony resulting in a Muslim marriage contract between herself and her husband, Mohammed Khan. She had insisted on also having a civil marriage and had believed one would take place. It never happened: he had refused to fulfil his promise. When the marriage broke down, he said that he owed his wife nothing because their relationship constituted a ‘non-marriage’.

In court, Mr Justice Williams concluded that in the interests of fairness and justice, the marriage should be recognised as ‘void’.

He suggested that the law should “take a holistic view of the marriage process, rather than focus on a single ceremony” and asked “whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them”.

He then granted Ms Akhter a decree of nullity which would allow her to claim financial remedies, such as maintenance, to which she may be entitled to following the break- up of her marriage.

However, the Attorney-General at the time, Geoffrey Cox, on behalf of the government, intervened in the case and argued that Mr Justice Williams was wrong to apply human rights arguments to this case and wrong to recognise the marriage as ‘void’.

The Attorney General’s appeal was successful.

As part of the One Law for All campaign, Southall Black Sisters sought to inform the Court of Appeal that many minority women, especially Muslim women, are deceived or coerced by abusive husbands into only having a religious marriage, which means women have no financial rights when the marriage breaks down.

But the Court of Appeal, when handing down its written judgment on this case, concluded that the marriage system should not be changed because ‘it would gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community’.

Southall Black Sisters are concerned that this concept of the regulation of marriage in the ‘modern community’ does not recognise the experiences of many minority women who are subject to abuse and coercion and who often have little or no control over the marriage process.

The Court found that ‘it is not difficult for parties who want to be legally married to achieve that status’.

But this disregards the accounts of many minority women, who have great difficulty in obtaining that status in the context of domestic abuse, patriarchal family dynamics and considerable power imbalances.

The judgment also says that the state does not have a human right obligation to recognise religious marriage.

Although Southall Black Sisters agree about that, this case had provided an opportunity for the Court to address the cultural and religious barriers that prevent minority women from opting into the formal marriage system and to provide access to legal remedies where there is such manifest unfairness in the process of marriage.

This case has profoundly discriminatory consequences for minority women, especially Muslim women: Christian women in a similar situation are able to have their marriages declared ‘void’, and thus have access to financial remedies from the courts, but women who have married in other religious systems may not.

And by rejecting Mr Justice William’s decision, the Court of Appeal has gone backwards.  In the “interests of the state” it has endorsed a conservative, discriminatory and fossilised system of marriage registration at the expense of the human rights of minority women to access equality and justice.

It also leaves minority women exposed to deception by abusive husbands who want to avoid their rights and obligations in marriage and after a break-up.

The full judgment of Mr Justice Williams at the High Court regarding Akhter v Khan [2018] EWFC 54 can be found here.

The Court of Appeal judgment can be found here.