Applications to Recognise Nikkah Ceremonies as Marriages Refused

A marriage is generally recognised in English law if it is valid under the law of the country in which it takes place, a legal principle known as lex loci celebrationis (the law of the place of the celebration). That principle was central to a recent Family Court decision in respect of applications by three women who had taken part in Islamic marriage ceremonies for declarations that they were married.

The women had each celebrated a Nikkah ceremony in England. The ceremonies did not comply with the Marriage Act 1949 and the women accepted that they amounted to 'non-qualifying ceremonies' under the laws of England and Wales. They applied for declarations of marital status under Section 55(1) of the Family Law Act 1986. Each application was resisted by the other party to the ceremony.

Two of the women claimed that their marriages had been registered in Pakistan shortly after the ceremony. The third woman, whose purported husband had since remarried, said she did not know if he had registered their marriage. The Court disposed of her application on the basis that there was no evidence of any registration.

The other two women argued that the registration should be considered the effective part of the marriage for the purpose of identifying the lex loci celebrationis. The Attorney General submitted that the place of solemnisation of a marriage was where the ceremony had actually taken place. The Court considered a number of previous cases on the subject and concluded that there was no authority to support the proposition that registration was the point at which a marriage was solemnised.

The women argued that while the parties may not have complied with the laws of England and Wales, they had complied fully with the laws of Pakistan and because the marriages were valid there, they were valid foreign marriages in England and Wales. However, the Court found that, the parties having gone through non-qualifying ceremonies in England, registration abroad could not convert them into valid foreign marriages. It was therefore necessary for the Court to decline to make the declarations sought.

The women requested the Court to consider whether there should be another hearing to determine whether the ceremonies could nonetheless be rendered valid by the doctrine of presumption of marriage. However, the Court agreed with the Attorney General that the presumption of marriage could not operate where there was clear evidence of a failure to comply with the legal requirements. Whether or not the parties had intended to marry, and whether or not they were aware that necessary requirements had not been fulfilled, the Court could not presume that a qualifying marriage ceremony had taken place when the parties themselves acknowledged that it had not.