Bloomsbury Family Law Briefing: March Teaser

Lancashire County Council v E & F [2020] EWHC 182 (Fam) (4 February 2020), Lieven J – Refusal to set aside Jehovah’s Witness elders witness summonses in relation to care proceedings. Claims to confidentiality did not extend to them.

Re C (Lay Advocates) [2019] EWHC 3738 (Fam) (13 December 2019), Keehan J – Order that HM Courts and Tribunal Service pay the fees of lay advocates to assist vulnerable parents in care proceedings.

Ainsworth v Stewarts Law [2020] EWCA Civ 178 (19 February 2020) – ‘Points of dispute’ in relation to any detailed assessment (CPR 1998, r 47.9(1)) should be briefly and clearly set out in accordance with CPR 1998, r PD47 para 8.2.

HM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020) – A nikah wedding, without more, was a non-qualifying ceremony and could not be brought within the terms of MCA 1973 by being declared void (section 11(a)(iii)). (See article below.)

Haskell v Haskell [2020] EWFC 9 (13 February 2020), Mostyn J – Payment of full lump sum for W delayed for two years. With Duxbury sum and interim periodical payments included the total was £5.181 million; and periodical payments for three children at £2,000 per child pm.

R v Kirby [2019] EWCA Crim 321 (21 February 2019) It an order is alleged to be unlawful then the proper course was to apply back to the court which made the order to set aside, not to apply by judicial review.

‘Non-qualifying ceremony’, outside Marriage Acts

HM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020) (on appeal from Akhter v Khan & Attorney-General [2018] EWFC 54, [2019] Fam 247 (31 July 2018), Williams J) shows up the difficulties faced many ‘wives’ who have been married in a way which is regarded as outside the provisions of UK Marriage Acts. The decision consigns another group of racially diverse couples to the lottery – relative to Matrimonial Causes Act 1973 (MCA 1973) principles – of cohabitation law on relationship breakdown.

In AG v Akhter the Court of Appeal rejected the term ‘non marriage’ commonly used (eg by Williams J). From now on the appropriate description was ‘non-qualifying ceremony’. Such a union cannot therefore be annulled under MCA 1973, ss 11 and 12; and therefore no financial provision claimed under MCA 1973, Pt 2 (eg MCA 1973, s 11(a)(iii) as in Akhter v Khan). To secure the variety of rights due to a married person (especially under the 1973 Act), a marriage needs to be proved. Marriage and cohabitation outside marriage includes:

  • Married and civil partnered couples
  • Couples who cohabit without and formal link or ceremony (cohabitants)
  • Couples who were married, but whose marriage is avoided (void or voidable) MCA 1973 (eg because one party is a bigamist, or a marriage is not consummated)
  • Couples who cohabit after a ‘non-qualifying ceremony’, many of whom may regard themselves as married under their own custom or faith.

AG v Akhter was concerned with the last group. But were there ceremonies like marriage (in UK law) which do not create a marriage but which are in a form which can then be annulled under MCA 1973, s 11; and if so was there a ‘non-qualifying ceremony’ which the court could declare void?

The answer to each of these questions is no, says the Court of Appeal. The question turns on what is a ceremony of marriage:

[28] [The importance of marital status] as a matter of law derives from the significant legal rights and obligations it creates. It engages both the private interests of the parties to the marriage and the interests of the state. It is clearly in the private interests of the parties that they can prove that they are legally married and that they are, therefore, entitled to the rights consequent on their being married. It is also in the interests of the state that the creation of the status is both clearly defined and protected. The protection of the status of marriage includes such issues as forced marriages and "sham" marriages.

The couple had an Islamic ceremony. They knew this was, on its own, of no legal effect. [46] … A decree of nullity could, therefore, be said to be only declaratory because it does not make the marriage void.’ As the law stands, people in Nasreen Akhter’s position will be firmly in the cohabitation category (2) above, with all the shortage of rights (almost none outside the 1975 Inheritance Act) which that implies.

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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