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The human right to a sham marriage


CORDELIA: Nothing.

LEAR: How? Nothing will come of nothing. Speak again.

Lear was right . . . at least he was until the human rights lawyers got going. Now we’re not so sure. Last week the Family Court, in a judgment getting dangerously close to a state acceptance of a Shari’a Nikah, or religious marriage, in Britain, magically created substance out of nothingness, solidity out of ether, by invoking the European Convention on Human Rights and another treaty you had probably never heard of: the 1990 UN Convention on the Rights of the Child.

At the risk of a bit of legal technicality, let me explain. If you marry validly according to English law then, if it doesn’t work out, the court can sort things out and apportion property, etc, on divorce. If you go through something that looks like a valid ceremony of marriage but omits some essential legal feature, it’s true you don’t have a marriage, but the result is not dissimilar. You can still get much the same remedies if a void marriage breaks up, on the basis that you probably assumed, however misguidedly, that all was in order and it would be unfair to leave you out in the cold.

But what if you go through a ceremony which you know perfectly well has nothing whatever to do with a legal marriage and you don’t even try to pretend it does? Fancy some Druidic nuptials, or a Jedi union on a Cornish beach? That’s fine: there’s no law against such childish fun. The law simply ignores it. It’s not even a void marriage: it is – well – nothing: a performance of no significance except for the star-struck participants. If you later ask a court for a declaration of nullity, the court will rightly say that there is nothing to nullify; it is not in the business of pronouncing on, or (more importantly) giving relief on the breakdown of, a ‘marriage’ which neither participant ever intended to have any secular legal consequences in the first place.

Until, that is, last week’s debacle. Except for the Islamic element it was exactly like the case of the Jedi union. Twenty years ago Mr Khan ‘married’ Miss Akhter in a Nikah ceremony in Southall. Both knew perfectly well that the performance had no secular legal effect whatever; indeed Mr Khan promised a subsequent civil ceremony to regularise things, though in the event, even after children arrived, he couldn’t be bothered to carry it through. Later Miss Akhter, exasperated by his conduct, sought a declaration of nullity and a share of his assets from the Family Court. Mr Khan said, quite understandably, that whatever the Islamic theological position might be there was no marriage, putative or otherwise, for the ordinary law to concern itself with.

The court was having none of it. True, neither party had ever intended the Southall ceremony to have any effect whatever under English law. Still, it had to be treated as a putative marriage gone wrong, and Miss Akhter given the same kind of remedy she would have had on a secular divorce. Why? As far as one can make sense of the judgment, what mattered was that Mr Khan had broken his promise to Miss Akhter of a civil ceremony; the Nikah had had some apparent solemnity; and it would be insulting for the law to ignore a religious matter such as this or call it a nullity. It followed that to avoid infringing her human rights, notably the Art.8 right to family life and the Art.12 right to marry according to the relevant applicable law (!), she had to be treated as someone who had misguidedly tried, but failed, to contract a legal marriage. And if this was not enough, the UN Convention on the Rights of the Child, a treaty signed by the UK but never formally incorporated into our law, demanded that the rights of her children be a primary consideration; since giving some sort of effect to her marriage would increase the amounts available to those children, this gave yet another reason to do so.

I suspect every TCW reader will, quite rightly, sympathise with Miss Akhter: she had been abominably treated. But this development is still worrying.

For one thing, there is every justification for the state having the final say in what marriages it will and will not take notice of, and making it clear that it will ignore ceremonies, however seriously taken by the parties, that deliberately ignore its requirements. No group ought to be allowed an end-run round this simply because of its own spiritual views. Furthermore, even though what happened here – requiring financial relief to be available on breakdown – does not actually require the recognition of Nikah as a valid marriage, it is getting uncomfortably close to it.

For another, this actually encourages the kind of religious apartheid that appears when particular groups engage in purely spiritual ceremonies and eschew the facilities of the law of the land. If human rights law now tells us that ceremonies of this sort must have at least some of the characteristics of a valid marriage, including relief on breakdown, the message is clear: ‘Why bother with secular marriage when the secular authorities have to give us a remedy anyway?’

Perhaps most worrying is that a vital question of state policy – how we deal with those who prefer to opt out of English family law in favour of Shari’a – is now be regarded as something to be taken out of the hands of elected governments. Yet that is exactly what happens when we invoke the European Convention on Human Rights and the UN Convention on the Rights of the Child. We are saying that the answer reached by the Family Court is not only correct, but so obviously correct that any state which disagrees deserves to be regarded as outside the pale. In areas as finely balanced as this, we cannot afford such peremptory certainties. If this means denouncing these two conventions, so be it. TCW has already repeatedly taken aim at the European Convention on Human Rights: it should now expand its attention to other treaties thoughtlessly entered into by the UK. The Rights of the Child Convention would be a good start.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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