When is a marriage not a marriage?

In the recent case of MA v WK, Mr Justice Cusworth in the Family Court considered whether or not Nikkah ceremonies conducted in England and Wales, but not compliant with the formalities of the Marriage Act 1949, could become valid marriages following subsequent registration in Pakistan. The applications were brought in connection with section 55(1) of the Family Law Act 1986, seeking declarations as to marital status.

The facts

Three linked applications were made, each involving a Nikkah ceremony in England. It was accepted that the ceremonies were “non-qualifying”.

In two of the cases (but not the third), the marriages were registered in Pakistan. The key issue was whether the recognition of the marriage ceremonies in Pakistan meant that the marriages were capable of recognition as valid foreign marriages in England.

Mr Justice Cusworth refused the decisions sought and held that the registrations abroad could not turn non-qualifying ceremonies in England into valid marriages.

Key points to note

1. The law of the place of the celebration (“lex loci celebrationis”) is well established as determining the formal validity of a marriage. As the marriage ceremonies took place in England, they had to comply with the Marriage Act 1949. Foreign registration cannot convert them into legally recognised marriages.
2. The applicants argued that registration should be considered the effective part of the marriage for the purpose of identifying the place of marriage. That, if accepted, would have the effect of converting the English non-qualifying ceremonies into valid foreign marriages capable of recognition in England and Wales. However, that would “require the English court to recognise a recognition of something which England law would otherwise deem is not entitled to recognition” (i.e. the English courts could not recognise a foreign recognition of something that English law treats as a non-marriage).
3. The doctrine of presumption of marriage could not apply as there was positive evidence that the statutory formalities had not been complied with.

Practical consequences

The decision reinforces the Court of Appeal’s approach in Akhter v Khan that religious ceremonies in England and Wales that do not comply with statutory formalities remain non-qualifying ceremonies. It confirms that foreign registration cannot retrospectively validate such ceremonies.

Essentially, couples who wish their marriage to be recognised in England and Wales must comply with the Marriage Act 1949 at the time of the ceremony. However, the judgment will be relevant in those cases involving unregistered religious marriages and cross-border attempts to secure recognition through foreign registration.

For further information on family law and validity of marriages, please contact Family & Matrimonial Partner and Mediator Emma Harte.