This weblog word is kindly offered by Dr. Muhammad Zubair Abbasi (Lecturer, College of Regulation, Royal Holloway, College of London; zubair.abbasi@rhul.ac.uk). It follows the creator’s earlier publish on this subject, which was printed earlier on this weblog.
In MA v WK [2025] EWFC 499, three ladies had undergone Islamic marriage (nikah) ceremonies in England. Every argued that subsequent registration of her marriage in Pakistan had transformed it into a sound overseas marriage entitled to recognition in England and Wales. The Household Court docket rejected this argument as a result of the lex loci celebrationis is fastened on the place and second of the ceremony; no later act of registration in one other jurisdiction can alter it.
The extra vital query is why the argument was made in any respect. Every applicant had already accepted that her ceremony was a non-marriage or non-qualifying ceremony (NQC) below English matrimonial regulation. Every had subsequently been excluded, by the rule established in Lawyer Normal v Akhter & Others [2020] EWCA Civ 122 from the monetary treatments that the Matrimonial Causes Act 1973 would in any other case have offered. The argument from Pakistani registration was, in substance, a determined try to search out by non-public worldwide regulation a route that home regulation had closed. It was all the time going to fail however the truth that it was tried is itself instructive. When the regulation systematically denies recognition to a type of marriage {that a} important a part of the inhabitants regards as legitimate, litigants will search for no matter route stays open. MA v WK is a report of 1 such try, and it’s unlikely to be the final so long as the prevailing authorized framework stays unreformed.
There have been three feminine candidates, every of whom had celebrated a nikah-only in England and sought to depend on subsequent registration in Pakistan. The primary, MA, had celebrated a nikah with WK in Oxfordshire on 1 April 2013. She produced a Pakistan Marriage Registration Certificates recording each the wedding date and entry date as 1 April 2013, with a problem date of 26 August 2024. The second, TM, had celebrated a nikah with MM at a mosque in England on 19 January 1992. She produced a Pakistan Marriage Registration Certificates, however the entry date was 2 October 2025 — thirty-three years after the ceremony and after MM had already remarried in Pakistan in 2017. The third, AM, had celebrated a nikah with RK in England in 2005. No proof of registration was produced.
The formal validity of a wedding is ruled by the lex loci celebrationis, as restated by Moylan LJ in Tousi v Gaydukova [2024] EWCA Civ 203. All three ceremonies happened in England; all three candidates accepted that none had complied with the Marriage Act 1949. Every was subsequently a non-qualifying ceremony (NQC). The query was whether or not subsequent registration in Pakistan might convert them into legitimate overseas marriages able to recognition in England and Wales. The courtroom held that it couldn’t: the lex loci is set by the place of celebration, not by any later administrative act. There is no such thing as a authority for the proposition that registration can substitute for, or complement, the ceremony for the needs of authorized recognition.
The candidates superior two arguments. First, that registration is the operative occasion for lex loci functions, deriving from Sottomayor v De Barros (No 1) (1877) 3 PD 1, a precept elevating it to the “pinnacle” of matrimonial regulation [para 16]. That studying doesn’t survive examination: in Sottomayor ceremony and registration occurred concurrently at an English register workplace, and their coincidence doesn’t make registration the constitutive occasion. The three additional authorities relied upon, Boughajdim v Hayoukane [2022] EWHC 2673; Entry Clearance Officer v Firdous [2018] HU/04562/2016 (Higher Tribunal); and Farah v Farah 16 Va. App. 329 (Va. Ct. App. 1993), every turned on the place the ceremony, or its dominant parts, had taken place. None held that registration of an English ceremony overseas might shift the lex loci; they’re authority for the alternative proposition.
The second argument assumed what it wanted to show. The precept in Berthiaume v Dastous (Quebec) [1929] UKPC 73, {that a} marriage legitimate the place celebrated is legitimate in all places, operates in favour of a wedding validly shaped at its place of celebration. It avails nothing the place the ceremony was not legitimate there within the first place. An extra issue lay in Pakistani regulation itself. On the skilled proof, accepted in Rana v Manan 2011] EWHC 2132 and utilized right here, registration below part 5 of the Muslim Household Legal guidelines Ordinance 1961 is listing quite than necessary: it’s the nikah contract that creates the wedding. What Pakistani regulation had accomplished in registering these marriages was to not create new Pakistani marriages, however to report marriages that Pakistani regulation handled as having taken place in England.
On the presumption of marriage, the reply was simple. The presumption, as Evans LJ defined in Chief Adjudication Officer v Tub 1999] EWCA Civ 3008 at [31]–[32], fills evidential gaps; it doesn’t function the place there may be constructive proof of non-compliance with the statutory formalities. The circularity this produces is uncomfortable. A celebration who needs to argue for recognition of her marriage should confide in the courtroom the circumstances of the ceremony; and as soon as she has accomplished so truthfully, she’s going to sometimes have foreclosed the one doctrine which may have assisted her.
The judgment on this case is the newest in a sequence that has progressively narrowed the authorized choices obtainable to events in religious-only or a nikah-only marriages. Till Lawyer Normal v Akhter & Others [2020] EWCA Civ 122, the courts had obtainable to them a spread of instruments: the “hallmarks of marriage” check from Gereis v Yagoub [1997] Fam Regulation 475; the presumption of marriage from lengthy cohabitation from Chief Adjudication Officer v Bath1999] EWCA Civ 3008; and a typically versatile method to the non-marriage class, which had been utilized in reported circumstances virtually completely to polygamous unions (A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6; Gandhi v Patel [2002] 1 FLR 603; Shagroon v Sharbatly [2012] EWCA Civ 1507; and El Gamal v Al-Maktoum [2011] EWHC B27.
The Court docket of Enchantment’s introduction of the NQC class in Lawyer Normal v Akhter & Others [2020] EWCA Civ 122 modified the panorama. A courtroom requested to categorise a religious-only ceremony now asks a single, decisive query: did the ceremony comply, not less than to a point, with the statutory necessities? If the reply is not any, the ceremony is outdoors the regulatory framework totally, and neither the hallmarks check nor the presumption can function to deliver it again in. The current case is a non-public worldwide regulation software of the identical logic: the query is what occurred on the ceremony, assessed as on the date of the ceremony, and later occasions, together with registration overseas, are irrelevant.
The selection of jurisdiction made no distinction to that conclusion. The candidates sought declarations of marital standing below part 55(1) of the Household Regulation Act 1986, which allows an individual to use for a declaration {that a} marriage was at its inception legitimate, or that it subsisted on a selected date. That jurisdiction is declaratory, not constitutive: it identifies the standing that the regulation recognises, it doesn’t create one. The argument from overseas registration was in substance an invite to the courtroom to make use of the part 55 jurisdiction to confer a standing that English regulation doesn’t recognise. It was all the time going to fail, not due to any deficiency within the proof or any technical level of process, however as a result of the declaratory jurisdiction can’t be deployed as a way of circumventing the necessities that the Marriage Act 1949 imposes.
None of this can be a criticism of the candidates, who had been doing what individuals of their place sometimes do: searching for no matter route the regulation would possibly supply. It’s a touch upon the regulation itself. The Lawyer Normal had foreshadowed a public coverage objection below part 58(1) of the 1986 Act had the courtroom discovered within the candidates’ favour, a sign that the state’s curiosity in sustaining the integrity of the wedding framework is considered sufficiently sturdy to withstand even a profitable argument from overseas registration [para 30]. That the argument failed means the general public coverage level didn’t come up, however its potential invocation confirms that the present framework just isn’t one the courts are inclined to search for methods round.
The choice in MA v WK is simple to justify on the regulation because it stands. The lex loci celebrationis just isn’t a rule that administrative comfort in one other jurisdiction can displace, and the part 55 jurisdiction doesn’t exist to treatment the deficiencies of the Marriage Act 1949. However the case is a reminder that when home regulation closes each obtainable door, litigants will look elsewhere.
The failure on this case just isn’t one in every of non-public worldwide regulation. The Marriage Act 1949, constructed on foundations laid by Lord Hardwicke’s Clandestine Marriages Act 1753, which remodeled the non-public marriage contract right into a public act requiring the sanction of the church-state — was not designed with cultural and non secular variety in thoughts. The Authorities has dedicated to reform. However the proposed modifications are potential. They won’t help the three ladies on this case, nor the various others in the identical place. Till Parliament addresses that hole, household courts will proceed to show away ladies whose marriages are actual to everybody besides the regulation.
