MA v WK

Cusworth J :

1. This matter has concerned three applications for declarations of marital status pursuant to Section 55(1) of the Family Law Act 1986. Each applicant celebrated a Nikkah ceremony in England that did not comply with the Marriage Act 1949. The applicants accept therefore that each amounted without more, to a ‘non-qualifying ceremony’ under the laws of England and Wales. I have been shown evidence that one of the ceremonies was thereafter registered in Pakistan, and that a second has now apparently been registered there, but possibly only during these proceedings. There is no evidence that the third has ever been registered. The primary issue in each case is whether, after a non-qualifying ceremony in this jurisdiction which is registered as a marriage in Pakistan (if it has been), there has been created a marriage capable of being recognised as a valid foreign marriage pursuant to the law of this jurisdiction. Background

2. There are three applicants whose cases have been listed for determination together. The case of MA (OX25F00023) was issued in Oxford. It was first heard by HHJ Gibbons sitting in the Family Court in Oxford on 20 February 2025. By an order dated 26 February 2025, she allocated the matter to be heard by a High Court judge. The cases of TM (LS24D0002) and AM (LS24D0003) were issued in Leeds. They were first heard by HHJ Shelton sitting in the Family Court in Leeds on 26 February 2025. By an order of the same date, he allocated those cases to a High Court judge to be listed alongside the case of MA. A remote directions hearing took place before me on 23 June 2025. In this hearing, all of the Applicants accepted that their Nikkah ceremonies had not complied with the requirements of the Marriage Act 1949. It was agreed that the Applicants would submit any evidence of marriage registration in advance of the final hearing. This was recorded in the order made on 23 June 2025.

3. The final hearing took place before me on 13 November 2025. The Applicants were represented by Mr Karim Andani of Abbott and Co. Solicitors, who represented the applicants at all times over the course of these proceedings. Counsel for the other parties noted that Mr Andani did not have rights of audience. I granted them to him for the purposes of the hearing, with the acceptance of the other parties, and in order to avoid a delay. For the Respondents, WK has been assisted on a pro bono basis by Spires Legal, but was not represented before me. MM was represented by counsel Nathalie Bull. The Attorney General was represented by counsel William Tyzack.

4. I noted before the hearing that Mr Andani’s most recent skeleton only named MA and TM, omitting AM. This was notwithstanding the fact that her application remained listed for determination and had not been adjourned or withdrawn. No evidence of any registration of her marriage in Pakistan had been provided. Mr Andani explained that AM had not been able to secure evidence of marriage registration yet. In the absence of any application for adjournment, or advance notice to the other parties that she was not proceeding, I have dealt with her application on the basis that there is no such evidence available. The respondent in her case, Mr RK, has never been represented or engaged with the application in any active way. MA and WK

5. On 1 April 2013, MA and WK celebrated a Nikkah ceremony at their home in Oxfordshire. Subsequently they had four children, now aged between eleven and seven. In November 2017, a family home was purchased in Oxford in the Respondent’s name only. In February 2022, the parties separated and the children were removed to local authority care due to domestic violence issues. The children remain in local authority care. In 2024, WK remarried to a different woman in a Nikkah ceremony in Pakistan.

6. MA’s position is that her marriage to WK was registered in Pakistan shortly after the ceremony. She presents a Pakistan Marriage Registration Certificate that contains three dates: (1) Marriage Date: 1 April 2013; (2) Entry Date: 1 April 2013; (3) Issue Date: 26 August 2024. Mr Andani submits on behalf of MA that registration is the essential prerequisite of matrimonial law and that it gives legal effect to the marriage. Therefore, he says that I should recognise that this is a valid marriage in Pakistan which is therefore capable of recognition in the UK as a valid overseas marriage.

7. WK’s position is that he and MA were not lawfully married at any point because the Nikkah ceremony was not registered in England and Wales or anywhere in the world. He suggests that any documents produced by MA in support of registration are forged. Finally, he reiterates that the marriage is not capable of recognition because the ceremony did not comply with the Marriage Act 1949. For the purpose of MA’s application I am prepared to accept that this marriage was registered in Pakistan, given that I do have prima facie evidence of such registration before me, with effect from the ‘entry date’ on the certificate, which is 1 April 2013. TM and MM

8. On 19 January 1992, TM and MM celebrated a Nikkah ceremony at a local mosque in England. Subsequently they had three children, all now adult. In 2016, the parties separated. There have been domestic abuse allegations. In 2017, MM also remarried a different woman in a Nikkah ceremony in Pakistan.

9. TM’s position is that her marriage to MM was registered in Pakistan shortly after the ceremony, on the family’s first trip to Pakistan with their children. She presents a Pakistan Marriage Registration Certificate that contains three dates: (1) Marriage Date: 19 January 1992; (2) Entry Date: 2 October 2025; (3) Issue Date: 23 October 2025. Mr Andani suggests on behalf of TM that the document was issued in 2025 but registered at some point earlier. TM therefore puts forward the same argument as MA that this is a valid marriage in Pakistan that is capable of recognition in this jurisdiction.

10. MM’s position is that the Pakistan Marriage Registration Certificate is not genuine and, in any event, the registration apparently happened only in October 2025, without his consent, and after he had already remarried. MM says through Ms Bull that he will challenge this registration document in Pakistan. MM also finally submits that he and TM were not lawfully married at any point because the Nikkah ceremony did not comply with the Marriage Act 1949. As far as registration is concerned, I am for the purposes of this hearing prepared to accept that a process of registration has now been undertaken somewhere in Pakistan, but the evidence suggests that this has happened only at the beginning of October 2025, some 33 years after the ceremony took place between the parties. It is also sometime after the respondent had in fact remarried. There is no evidence of any registration before 2025. AM and RK

11. AM celebrated a Nikkah ceremony with RK in England in 2005. She had children with him. They also separated in circumstances where domestic abuse allegations have been made. RK has also since remarried. It is AM’s position that she was led to believe that her marriage to RK was legally valid, as he told her that a Nikkah marriage was recognised in law in England. In her witness statement, of which I do not have a complete copy, AM says that she does not know whether RK registered the Nikkah with the Union Council of Pakistan. She has not presented any evidence of marriage registration. Mr Andani invited me to hold her case effectively in abeyance, but I am clear that it would not be satisfactory, or fair to the respondent in those proceedings, to do so. I will therefore dispose of it today on the basis that there is before me no evidence of any Pakistani registration to date, in this instance. The Law

12. Section 55(1) Family Law Act 1986 provides;

55. Declarations as to marital status. (1) Subject to the following provisions of this section, any person may apply to [the High Court or [the family court]] for one or more of the following declarations in relation to a marriage specified in the application, that is to say— (a) a declaration that the marriage was at its inception a valid marriage; (b) a declaration that the marriage subsisted on a date specified in the application; …

13. The principle of law governing the formal validity of a marriage is the lex loci celebrationis (the law of the place of the celebration). The Court of Appeal in Tousi v Gaydukova [2024] EWCA Civ 203 have recently summarised the legal principle, when Moylan LJ said:

55. It is well established that the law of the place where the marriage was celebrated (the lex loci celebrationis) determines the formal validity of the marriage. This is clearly set out in Dicey, Morris & Collins on the Conflict of Laws 16th Ed., at Rule 74(1), at [17R-00]: "A marriage is formally valid if (and only if) any one of the following conditions as to the form of celebration is complied with: (1) the marriage is celebrated in accordance with the form required or (semble) recognised as sufficient by the law of the country in which the marriage was celebrated". And, at [17-003], which states: "A marriage celebrated in the form, or according to the rites or ceremonies, required by the law of the country where the marriage takes place, is (as far as formal requisites go) valid."

56. The same point is made in Cheshire, North and Fawcett, Private International Law, 15th Ed, at p.893: "There is no rule more firmly established in private international law than that which applies the maxim locus regit actum to the formalities of the marriage, ie that an act is governed by the law of the place where it is done. Whether any particular ceremony constitutes a formally valid marriage depends solely on the law of the country where the ceremony takes place. […]

57. The scope and effect of this principle are encapsulated in the following quotations, which the judge purported to apply. The first is from Sottomayor v De Barros (No.1) in which Cotton LJ gave the judgment of the court. I have set out the relevant quote, from p.5, above but I set it out again here: "The law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted." […]

58. The second is from Berthiaume v Dastous in which Viscount Dunedin, giving the judgment of the Privy Council, said: ‘If there is one question better settled than any other in international law, it is that as regards marriage… locus regit actum….If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted in the place of the parties' domicile would be considered a good marriage."…

72. …The simple principle is that the formal validity, and only the formal validity, of a marriage is determined by the law of the place in which the marriage was celebrated.This clear principle has been well established certainly since Sottomayor v De Barros (No. 1) and has not previously been questioned. ”

14. The parties both accept that if the place of celebration is England and Wales, then the parties must comply with the formal requirements under Part III of the Marriage Act 1949. If the extent of non-compliance is such that the parties have not married under that Act, then there has been a non-qualifying ceremony, per Moylan LJ in Akhter v Khan (Attorney General and others intervening) [2020] EWCA Civ 122 at §56-64, as to which see further below at paragraph

26.

15. Registration. The Applicants argue that registration should be considered the effective part of the marriage for the purpose of identifying the lex loci celebrationis. 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. The Attorney General submits that there is no authority which supports the argument that the place of registration may constitute the lex locicelebrationis. The place of the solemnisation of the marriage, Mr Tyzack argues, is the location in which the ceremony of marriage actually took place.He adds that even if the non-qualifying ceremony were recognised as a valid marriage in Pakistan, the principle that ‘a judgment on a judgment is not valid’, or ‘exequatur sur exequatur ne vaut’, would prevent recognition in England, as it would require the English court to ‘recognise a recognition’ of something which English law would otherwise deem is not entitled to recognition.

16. Both parties relied on Sottomayor v De Barros (No 1) (1877) 3 PD 1, 5 (CA) at p.96, cited in Tousi v Gaydukova [above], as authority for the principle that: ‘the law of the country in which the marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted’. Mr Andani argues on behalf of the Applicants that the case is also authority for the proposition that registration is the ‘pinnacle’ of matrimonial law and key to the recognition of marriage. The case concerned a Portuguese applicant who married a Portuguese respondent in a registrar's office of the city of London. The parties were first cousins. The applicant petitioned for the marriage to be declared void, as both parties were natives of Portugal and by the laws of Portugal the marriage would have been void for consanguinity. At first instance, the judge found that the marriage was valid as it was governed by the laws of contract of England. On appeal, Cotton LJ reversed the decision, holding that the marriage was invalid because the question of consanguinity concerned personal capacity, which was determined by the laws of domicile, and the parties were domiciled in Portugal. He nonetheless confirmed at p.96 the sentence later cited in Tousi v Gaydukova, and set out above.

17. It was later found that the husband was in fact domiciled in England at the time of the marriage, so the case was reconsidered by Sir James Hannen. He found that Cotton LJ had erred in finding that in marriage, as in other contracts, personal capacity must depend on the law of domicile. Mr Andani then suggested to me that in Sottomayor the marriage was valid under English law although it was a simple registry marriage, and that therefore it was the question of registration that was crucial. I am clear that the fact of solemnisation and registration happening at the same time in an English civil ceremony does not undermine the significance of the solemnisation, or celebration. I am satisfied this case underlines the principle that the lex loci celebrationis determines the validity of the marriage, and not the place of any later registration.

18. In this regard one needs to consider the implications of what appears to have happened in TM’s case. Although married in 1992, no attempt has been shown to have been made to register the marriage until October 2025. By the time of apparent registration the respondent had already remarried. This would mean, if accurate, that on the applicant’s interpretation the marriage that she relies on has only come into existence 33 years after the ceremony which took between the parties, and at a time when the parties have already been separated for years, the respondent has remarried, and their children have long grown up. Clearly this sort of retrospective validation at the instance of one party to a non-qualifying ceremony would be a recipe for procedural and litigation chaos.

19. Mr Andani also relied on the cases of Boughajdim v Hayoukane [2022] EWHC 2673 (Fam), Entry Clearance Officer v Firdous [2018] HU/04562/2016, and Awuku v Secretary of State for the Home Department [2017] EWCA Civ

178. However, in these cases, the ceremonies were all found to have taken place abroad. They were valid foreign marriages because the ceremonies had complied with the requirements of the foreign lexi loci, rather than because the place of registration determined the lexi loci. In Boughajdim v Hayoukane, where it was difficult to locate a precise ceremony, the lex locicelebrationis was ultimately found by MacDonald J to have been Morocco. As he said at §113: “I am satisfied that significant elements of the incomplete marriage process that I find occurred between the husband and the wife in 2000 took place in Morocco. In particular, the engagement of the parties with an intention to marry occurred in Morocco, with a party to celebrate that engagement and the agreement and payment of a dowry. Further, it is not disputed that the totality of the elements of the retrospective legislative process that subsequently recognised a valid marriage as between the husband and the wife in 2013 also occurred in Morocco, […] I am satisfied that looking at the picture overall on the facts as I have found them to be, the lex loci celebrationis in this case is properly identified as being the Kingdom of Morocco.”

20. Likewise in Entry Clearance Officer v Firdous [2018] HU/04562/2016, a marriage took place over the phone with one party in England and the other in Pakistan. The marriage was valid because proxy marriages by telephone are valid in Pakistan. At §9, the Upper Tribunal found: “… notwithstanding the finding by the First-tier Judge that the operative date of the marriage was its registration in Pakistan, the marriage would be valid even if taking the date of the marriage being contracted and it being conducted by telephone proxy (where one party was in the UK and one party was in Pakistan) because such marriages are recognised in Pakistan, and therefore are in turn recognised as valid under the law of England and Wales, according to the lex loci celebrationis principle.”

21. Finally, Mr Andani relies on the case of Farah v. Farah 16 Va. App. 329 (Va. Ct. App. 1993). A Pakistani marriage ceremony had taken place in England, with a small part occurring in Pakistan. The Virginia Court held that the lex loci was England, as the most important parts of the ceremony had taken place there and, “The only aspect of the Muslim ceremony that occurred in Pakistan was the "Rukhsati," or reception, which the evidence showed is merely a custom that has no legal significance and is not a formality required for a legal marriage in Pakistan.” I agree with the Attorney General that the case again underlines the principle that the lex loci celebrationis determines the validity of the marriage. There is no authority to support the proposition that registration is the point of solemnisation of a marriage. The Court in Farah held that; “Because the marriage was contracted and celebrated in England, the validity of the marriage is determined according to English law. Id. at 186, 372 S.E.2d at

409. The Marriage Act of England requires that a marriage be contracted in strict compliance with its statutory formalities. None of those formalities were complied with in the proxy marriage. Therefore, the marriage was void ab initio in England and is void in Virginia.”

22. Validity in Pakistan. I also cannot accept Mr Andani’s further argument that the marriages are “good all the world over” by virtue of being good in Pakistan. He argues that while the parties may not have complied with the laws of England and Wales, they did comply fully with the laws of Pakistan. Because these marriages are valid marriages in Pakistan, he says that therefore they are valid foreign marriages in England and Wales. However, the principle properly stated is that a marriage is ‘good all the world over’ only if it is valid in the place where it is celebrated. Dicey saysat 17-003, quoting from the speech of Viscount Dunedin in Berthiaume v Dastous (Quebec) [1929] UKPC 73, which is alsocited (partially) by Moylan LJ in the passage from Tousi v Gaydukova above: “(1) Local form. …“If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted in the place of the parties’ domicile would be considered a good marriage.”

23. The status of marriage registration in Pakistan was considered in Rana v Manan [2011] EWHC 2132 (Fam), in which expert evidence in relation to the law of Pakistan was received from Professor Menski. His report and oral evidence was summarised by Parker J as follows at §21; “(6) Section 5 of the Muslim Family Laws Ordinance 1961 provides that “every marriage solemnised under Muslim Law shall be registered in accordance with the provisions of this Ordinance”. Registration takes place through the Union Council in Pakistan, which relates, Professor Menski tells me, and I accept, only to Muslims. There are penalties for non-registration. Professor Menski relies on the case of Allah Rakha v the Federation of Pakistan, Federal Shariat Court PLD 2000 FSC1 in which it was argued that the prescribing of a penalty for non-registration was un-Islamic, and that the only requirement for the performance of Nikah in Islam is the presence of two witnesses. The Court said that the purpose of the legislation was to “regulate the procedure of Nikah in a Muslim country and to keep records of marriages which in turn entails the paternity of children”. The word “shall” does not mean “must” and the requirement to register a marriage, which is an administrative provision, does not affect the underlying law of Pakistan, which is that it is the contract and the ceremony of marriage which creates the status of husband and wife.”

24. Parker J. concluded at §30 that there is “a principle of general application in Pakistan and the principle is that it is the ceremony of marriage rather than the registration which creates its validity.” Mr Andani accepted in the hearing that the registration of the marriages in Pakistan could not have been effective if there had not been a valid Nikkah, as the Nikkah is a prerequisite for marriage to be registered. I accept Mr Tyzack’s submission that registration in Pakistan is both administrative and evidential, but that it does not bear upon solemnisation. In registering these marriages, Pakistan is in essence recognising a marriage that it considers took place in England. I am now being asked to recognise that a valid marriage took place in Pakistan, notwithstanding that Pakistan has recognised that under its laws the valid marriage in question took place in England.

25. On the basis of the authorities, I find that it is not possible to create a valid marriage in England and Wales through registration in Pakistan if you have not otherwise created a valid marriage in England and Wales. I find that the lex loci of these marriages was England, no matter if or where foreign registration took place. I need not determine the validity or timing of the registrations, and it therefore does not matter that AM has not submitted evidence of registration. The parties in these different cases have gone through non-qualifying ceremonies in this jurisdiction, which registration abroad cannot convert into a valid foreign marriage. I must therefore decline to make the declarations sought under Section 55(1) of the Family Law Act 1986.

26. Presumption of marriage. Mr Tyzack further requested that I consider whether it would be necessary for there to be another hearing to determine whether these ‘non-qualifying ceremonies’, could nonetheless be rendered valid by the application of the doctrine of presumption of marriage. Mr Andani agreed that I should consider this point. First, in Akhter v Khan (Attorney General and others intervening) [2020] EWCA Civ 122, the Court of Appeal has considered whether intention could play any role in determining the status of a ceremony which fell short of the requirements of the1949 Act. Moylan LJ determined as follows:

60. It would not, therefore, appear to be open to us to decide …that the concept of non-marriage should be confined to situations where there was “clearly no intention for any form of marital relationship to be created”.

61. Even if this was open to us, however, it seems to us that to accept this submission would be to open up a path which would create very considerable difficulties, similar to those which the regulatory system first introduced in 1753 has been designed to prevent.

62. The present case concerns a religious ceremony and [counsel]’s submission would seem to require that all religious ceremonies, wherever and however performed, should be brought within the scope of the 1949 Act. That would clearly not be an acceptable dividing line especially as a marriage solemnized in approved premises can take any form (other than a religious service) the parties choose. It would then, equally, be questioned why any such ceremony wherever performed should not also be included within the scope of the 1949 Act. It would clearly not be acceptable to exclude such ceremonies and to give them a different legal effect to a religious ceremony for that reason alone… …

64. As referred to above, …we agree with observations that have been made about the unsatisfactory nature of the expression “non-marriage”. We consider that the focus should be on the ceremony and would propose that they should be called a “non-qualifying ceremony” to signify that they are outside the scope of both the 1949 and the 1973 Acts.

27. The principle of the doctrine of presumption itself was summarised by Evans LJ in Chief Adjudication Officer v Bath[1999] EWCA Civ 3008 at §31-32:

31. These authorities show that when the man and women have cohabited as man and wife for a significant period there is a strong presumption that they have agreed to do so, in proper form. …When there is, as there is in England, a legal requirement that the marriage ceremony shall take a certain form, then the presumption operates to show that the proper form was observed, and it can only be displaced by what I would call positive, not merely ‘clear’, evidence… How positive, and how clear, must depend among other things upon the strength of the evidence which gives rise to the presumption — primarily, the length of cohabitation and evidence that the parties regarded themselves and were treated by others as man and wife.

32. I would agree with the Commissioner's Decision R(G) 2/70 that when there is positive evidence that the statutory requirements were not complied with, then the presumption cannot be relied upon to establish that they were.”

28. The applicants argue that the presumption of marriage can operate where petitioners do not know what the requirements of marriage law are, or are unaware that the requirements have not been fulfilled. Here Mr Andani, who also cites El Gamal v Al Maktoum [2011] EWHC 3763 (Fam) and Dukali v Lamrani [2012] EWHC 1748 (Fam), is constrained to acknowledge that a positive intention to marry cannot convert a non-compliant ceremony into a marriage recognised by law. The only remaining question is whether a lack of knowledge about compliance with the Marriage Act 1949 (in the sense that the parties were unaware of the requirements, or unaware that the requirements had not been complied with) can trigger the presumption, in circumstances where the parties have acknowledged that the ceremonies were not compliant.

29. The Attorney General argues that the ‘presumption of marriage’ cannot operate where there is clear evidence of a failure to comply with formalities prescribed by the lex loci celebrationis. The presumption, he says, only operates to fill evidential gaps. I agree with him. In this case, I am satisfied that it is not possible for the presumption to apply, as the parties’ admissions constitute positive evidence that the requirements were not complied with. Whether or not they intended to marry, and whether or not they were aware that necessary requirements had not been fulfilled, the court cannot presume that a qualifying marriage ceremony has taken place in circumstances where the parties themselves acknowledge that one has not. There is therefore no need or requirement for a further hearing to consider this point.

30. If I were to have concluded that the process of foreign registration entitled an otherwise non-qualifying ceremony to validity, the Attorney General would have finally invited me to decline to make the declarations on the grounds that to do so would be manifestly contrary to public policy under Section 58(1) of the Family Law Act 1986. For reasons which I have explained it will not be necessary for me to go on to consider this last point.

31. I should conclude by saying that I have considerable sympathy for all three applicants in these cases, who may well have believed for some or all of their significant relationships that there were validly married. However, the law in this area is both clear and settled, and cannot be reinterpreted so as to classify the non-qualifying ceremonies through which they each went, whether or not subsequently registered, as valid foreign marriages taking place in Pakistan for the purposes of the Marriage Act 1949, or in some other way as marriages recognisable as valid in this jurisdiction.

32. That is my judgment.