When couples separate, problems can occur if a marriage took place abroad or does not satisfy the requirements for a marriage under English Law. However, a Family Judge has recently ruled that a marriage between a couple who underwent an Islamic ceremony and was not legally registered was within the Matrimonial Causes Act 1973.
In the case of Akhtar v Khan and Others the judge concluded that the marriage was a void marriage so that the wife was entitled to a decree of nullity. This meant that the wife could make a financial claim against the husband.
A marriage has to meet certain legal requirements to be a legal marriage under English Law. A petitioner seeking a divorce must firstly prove that they are married which is why their marriage certificate is sent to the court the divorce petition.
If a marriage, or what was thought to be a marriage, does not satisfy all of those criteria there was no marriage and so cannot be a divorce. This leaves the couple without the protection of the law when it comes to dealing with finances just like when a cohabiting couple separates
In certain circumstances however a marriage can be “void” or “voidable” which allows a party to seek a decree of nullity instead of a divorce.
A marriage is void if it is between two people who are related, one of the parties is under sixteen, one of the parties was already married or, as in the Akhtar case, the parties married “in disregard of certain requirements as to the formation of marriage”.
To show that a marriage is voidable, a party needs to prove one of a number of facts including that they did not consent to the marriage or that the marriage was not consummated.
In either case, a party can apply for a decree of nullity. The effect of a decree of nullity is different depending on whether the marriage was void or voidable. In respect of a void marriage it is as though the marriage never took place. A voidable marriage is cancelled by the decree although it is deemed to have existed up until that point.
The main benefit however is that the parties to a decree of nullity then have access to the law providing financial remedies to a divorcing couple. Either party to the application can apply for ancillary relief just as a divorcing couple can.
Despite, in the case of a void marriage, the marriage not having existed, this can provide a better outcome than where a couple were simply cohabiting and there are no remedies available.