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Attorney General v Akhter [2020] EWCA Civ 122 – Marriage did not take place despite promises made by husband

Posted on 14 September 2020

At first instance in this widely-publicised case, Williams J held that, despite the parties having known that the ceremony they went through wasn't a valid marriage, the circumstances of the relationship, including the parties having described themselves as married and the respondent's assurances to the petitioner that they would undergo a civil ceremony meant that, applying the European Convention on Human Rights, there was a void marriage. Holding the marriage to be "void", rather than not a marriage at all (a "non-marriage") opened the door to financial claims by the petitioner at the end of the relationship.

The Court of Appeal allowed the respondent's appeal. It noted that the Law Commission is currently tasked with recommending reform to the process of obtaining a marriage in this jurisdiction.

The Court set out the history of the statutory regulation of marriage, commencing with the Clandestine Marriages Act 1753, which had been intended to put an end to clandestine and irregular marriages. The problem with these marriages had been that it was difficult to establish whether someone was married or not. Marriage is a legal transition in which the state has an interest, given that the rights and obligations created by marriage engages the interests of the state. There was therefore a statutory regulation of the prescribed formalities required to effect a valid marriage, which created certainty. It should be clear when a marriage has come into being.

The Appeal Court considered that whether a decree of nullity can be granted on the basis that a marriage is void is to be determined by the provisions of s.11 of the Matrimonial Causes Act 1973 and, through s.11(a)(iii), by the provisions of the Marriage Act 1949. They did not consider it open to them to decide that the concept of non-marriage should be confined to situations where there was "clearly no intention for any form of marital relationship to be created." Even if the Court did have such power, to hold that the concept of non-marriage should be so confined would be to effectively return to the situation prior to the 1753 Act.

The Court declined to set out which acts of non-compliance might or might not render a ceremony a "non-marriage" (or, as the Court preferred, a "non-qualifying ceremony"). At first instance, Williams J had found that the respondent had led the petitioner to believe that he would undergo a civil ceremony, leading to a form of "fairness" argument in respect of whether there was a void marriage. The Court of Appeal noted:

"No one can be forced to marry; indeed to force someone to marry is a criminal offence. Further, a person can change their mind and break their promise to do so right up to the last minute before the proposed marriage ceremony (or, even, during the ceremony). From a legal perspective, it does not matter how badly that refusal may reflect on the person who changes their mind, or indeed how deeply hurtful it is to their intended spouse. That this is the case is reflected in the fact that agreements to marry do not give rise to legal rights, and that no action lies for their breach".

The Court of Appeal did not agree that one could look at a "continuum" to determine whether there had or had not been a valid marriage. It either was, or was not void at the time of the ceremony and could not depend on future events, such as the intention to undertake another ceremony.

Claire Yorke says: "The first instance decision in this case had created a degree of further uncertainty regarding when a ceremony (and potential subsequent conduct) would give rise to a void marriage or a non-qualifying marriage. The Court of Appeal has clarified that the focus must be on the ceremony itself and whether it constituted a legally binding marriage. No matter how upsetting or hurtful one party's refusal to marry may be, a marriage cannot be imposed where it seems "fair" to do so if it does not otherwise qualify."

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