In 1998, Mr Khan and Ms Akhter collectively entered into a union under Islamic law, known as a nikah. They had always intended to formalise their union under English law by way of a civil registry ceremony, but then never did.
Ms Akhter petitioned for divorce in 2016 and was informed by Mr Khan that they were not legally married and therefore could not make the relevant application for a divorce. Ms Akhter’s legal representative relied on the presumption of marriage and in the alternative sought a decree of nullity, which at first instance was granted. The Judge allowed the decree on the basis of adopting a ‘holistic approach’ to other processes of union of two people.
However, the Appeal Court set out that the ceremony did not constitute a marriage under the provisions of the Marriages Act 1949.
In light of the decision, there will be many who believe that their religious ceremony, whether it is a nikah or any other religious equivalent, is legally binding within England and Wales and on that basis will not have put in place any provision for their “spouse” in the event of their death.
They may have been relying on the supposition that their “wife/husband” will take under the rules of intestacy, whereby one’s spouse is entitled to the first £250,000 from the estate. But as we can now see, the Appeal Court has confirmed the legal position quite clearly, which is that such rituals are not valid marriages in the eyes of English Courts. Therefore, if such unions do not constitute a marriage then the rules of intestacy cannot follow for a surviving “spouse”.
If there are children of the “marriage”, they would receive from the estate and in situations where there is animosity between a parent and child/children, would they ensure that the surviving parent is provided for? In short the answer is that no one can predict the outcome of this and each case will depend on the relationship or lack thereof between the parties.
So could the ruling in Her Majesty’s Attorney General v Akhter and Khan lead to a spike in claims under the Inheritance Act?
In my view, I believe so. The older generations of such communities may not have formalised their unions on the basis that it may not have been seen as necessary due to their personal/religious beliefs and the times. Now those individuals are the ones that are beginning to die and this is where the disputes will arise.
The Inheritance (Provision for Family and Dependants) Act 1975 will allow a person in such circumstances to make a claim for reasonable financial provision from the estate even though they are not married in accordance with English law.
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