04846-18 MacLeod v Mail Online

Decision of the Complaints Committee 04846-18 MacLeod v Mail Online

Summary of complaint

1. Andrew MacLeod complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Landmark ruling sees British court recognise sharia law for the first time as judge rules wife married in Islamic ceremony can make claim on husband's assets under UK law”, published on 2 August 2018.

2. The article reported on a High Court judgment, following a divorce petition filed by a wife against her husband. The husband defended the petition for divorce on the basis that the parties had not entered into a marriage which was valid according to English law but had instead undergone the Islamic law marriage ceremony, the Nikah. The judge concluded that the marriage between the wife and husband was “void” for the purposes of s.11 of the Matrimonial Causes Act 1973 and decided that as a consequence, the wife was entitled to a decree of nullity, thereby enabling her to seek relief which could potentially include a division of assets or maintenance.

3. The article described the judgment as a “landmark decision” which “recognised sharia law for the first time”. The article reported that in the ruling, the judge had said that the couple’s union “should be valid and recognised because their vows have similar expectations of a British marriage contract”. The article continued: “this means women married in an Islamic faith ceremony will have an easier time securing a divorce in the UK, paving the way for them to claim half their husband’s assets”. The article noted that a review had been undertaken with the purpose of exploring whether Sharia law was being applied in a way that was incompatible with domestic legislation. The article said: “A panel of experts, said Muslim couples should be required to undergo civil marriages in addition to Muslim ceremonies to bring Islamic marriage legally into line with Christian and Jewish marriage”.

4. The complainant said that the British court had not “recognised” Sharia law; no reasonable reading of the judgment could find that the judge had incorporated or accepted Sharia Law into English Law.

5. The complainant provided a copy of the judgment. The complainant noted that the judge had said at paragraph 5: “what this case is not about though is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law”; the complainant said that this made clear that the case was not about the application of Sharia Law in English Law.

6. Under English Matrimonial law, a marriage ceremony can either be valid, void or voidable, or deemed a ‘non-marriage’. The court can make financial orders to redistribute assets if a marriage is found to be valid, void or voidable; the court cannot grant a decree of nullity nor can it make such financial orders following a non-marriage. The judge concluded that although the marriage was “entered into in disregard of certain requirements”, it could not legally be declared a non-marriage. The complainant argued that in coming to the decision that the marriage was “void”, the judge had taken a flexible approach to s.11 of the Matrimonial Causes Act 1973. He said that the judge took into account non-religious factors particularly actions of being held in public, promises exchanged, officiated and witnessed; the complainant said that these factors existed in all religious ceremonies and none were exclusive to Islam generally, or Sharia law specifically.

7. The publication argued that IPSO should not consider the complaint, as the complainant was a third party, with no direct involvement in the case. It also said that the complainant was seeking to argue a matter of opinion as to the interpretation of the judge’s decision.

8. Without prejudice to its position that the complainant was a third party, the publication did not accept a breach of the Code and said that care had been taken to accurately report a complex and nuanced High Court judgment. It said that it was not in dispute that the case was the first time a British judge has recognised a ‘Nikah’ marriage ceremony conducted in Britain as coming under the auspices of the Matrimonial Causes Act 1973, by virtue of it being found to be void.

9. The publication said that the consequence of the judgment, was that the wife was able to make a claim on her former husband’s assets under English law. The publication said that this recognition had wider implications for Muslim women who had undertaken an Islamic marriage ceremony (without corresponding civil ceremonies under UK law) to make a claim on their husband’s assets should the marriage break down.

10. The publication said that in coming to his decision that the marriage was “void” for the purposes of s.11 of the Matrimonial Causes Act 1973, the judge made clear reference to “the nature of the ceremony” and the fact that it bore “all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Iman”. It said that the reference to the Iman meant that the judge considered a factor which was exclusive to Islam. Furthermore, the publication said that the judge had referred to the marriage as being treated as valid in the UAE – a country whose official state religion is Islam. The publication said that in those circumstances, the judge took into consideration, factors which were exclusive to Islam, and the validity of the marriage in the eyes of Islam were relevant to his finding.

11. The publication did not accept that the article had given the misleading impression that the couple’s marriage was considered to have a legal status akin to that of a marriage conducted under English law. It said that the characterisation of the union as “valid” was in the general sense, and not the specific legalistic one which was set out in the lengthy judgment. The publication said that it removed the following passage, in order to clarify the complex and nuanced judgment: “before the landmark decision, the courts did not legally recognise [the Nikah] as a valid marriage”. It also amended the article, as a gesture of goodwill, and added the following passage:

[The judge] said the marriage was considered to be void under section 11 of the Matrimonial Causes Act 1973 due to it having been “entered into in disregard of certain requirement as to the formation of marriage”. This meant that [the wife] was “entitled to a decree of nullity”. Previously, Nikah marriages had been deemed legally non-existent, meaning that any party wishing to terminate the marriage had no legal recourse for any division of assets. The implications of the judgment are that women married in an Islamic faith ceremony will have an easier time securing a divorce in the UK, paving the way for them to claim half their husband’s assets”.

Relevant Code provisions

12. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

13. The Committee recognised that the term “valid” has a legal meaning, as well as a general one. The media plays an important role in reporting on complex and nuanced legal cases in an accessible way. The Committee’s role was to consider the meaning of the article, and how it would be understood by the general public. The publication was entitled to report on the case in a way which would be understood to its readership, provided that in doing so, it had taken care not to publish the judge’s findings in an inaccurate, misleading or distorted way.

14. The article had claimed that a UK court had said that the couple’s marriage was “valid and recognised”; it said that “before the landmark decision, the courts did not recognise [Nikah ceremonies] as a valid marriage”. The article had reported that the wife was able to make a claim on her husband’s financial assets, following her successful petition for divorce. However, the judge found that the marriage had been “entered into in disregard of certain requirement as to the formation of marriage”, and was therefore “void”, not “valid” under UK law.  The article had failed to explain that the judge’s finding that the marriage was “void”, had created limitations as to the nature of its validity. The claim that marriage had been found to be “valid and recognised”, in combination with the omission of any qualification as to the nature of that validity, as set out in the publicly available judgment,  represented a failure to take care over the accuracy, in breach of Clause 1(i). The Committee considered that there was a significant difference between a marriage conducted under UK law, and a marriage which conferred limited rights on the parties; the failure to make clear that distinction was significantly misleading, and required correction under the terms of Clause 1(ii).

15. The publication had removed references to “valid” from the article, and had amended the piece to make clear that that the marriage was “void” under section 11 of the Matrimonial Causes Act 1973. However, no footnote clarification had been published to record the amendments which had been made. This represented a breach of Clause 1(ii).

16. The Committee then turned to consider the broader complaint regarding the use of the term “recognised”. The article did not claim that Sharia law had been incorporated or accepted into UK law, or that Sharia law had been applied by a UK court, as the complainant had suggested. It was not in dispute that the case was the first time that a woman married under Islamic law—and who had not subsequently undertaken a civil marriage ceremony—had petitioned for a divorce through a UK court and was able to make a claim on her husband’s assets. The Committee noted that the wider implications which the judgment may have on women married in a Nikah ceremony had been acknowledged in the article. In coming to his decision that the marriage was “void”, rather than a “non marriage”, the judge had considered a number of elements in the couple’s marriage, one of which was the officiation by the Imam. Care had been taken to present the UK court’s “recognition” of Sharia law in the specific context of the facts of the case; the article reported that a British court had ruled a wife “married in an Islamic ceremony can claim husband’s assets.” Following a petition for divorce, recognition had been afforded to the couple’s marriage as a consequence of it being found to be “void” under UK law. There was a real and meaningful distinction between a marriage found to be “void” and a “non marriage” which conferred no legal rights. The Committee did not consider that the reference to Sharia law being “recognised” by a UK court was misleading in those circumstances. The article did not claim that all aspects of Sharia law had been recognised in British law. There was no further breach of Clause 1 on this point.

17. The Committee rejected the publication’s argument that it lacked jurisdiction to consider the complaint on the basis that the complainant was seeking to argue a point of opinion. The complainant had explained why he believed the article had contained inaccurate, misleading and distorted information; this was the complainant’s explanation as to why a publicly available judgment was reported inaccurately, and his complaint under Clause 1. Further, the absence of any input from the parties most closely involved, did not prohibit the Committee from making an objective determination on the care taken over the reporting of a publicly available judgment, and adequate information had been presented before it, in order to do so. There is also a public interest in ensuring that court cases are reported accurately.

Conclusion

18. The complaint was upheld.

Remedial Action Required

19. Having upheld the complaint under Clause 1, the Committee considered what remedial action should be required.

20. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or adjudication, the nature, extent and placement of which is determined by IPSO.

21. In this case, the publication had taken steps to address the concerns raised, and had made amendments to the article, as set out above. However, this did not represent corrective action under the terms of Clause 1(ii) and no wording had been offered or published which identified the inaccuracy in the piece. The Committee therefore considered that the appropriate remedy was the publication of a correction, which would make clear the legal status of the marriage. The Committee considered that the publication of this correction as a footnote to the article, as well as a standalone correction on the publications homepage for 24 hours, which would be then archived in the usual way, was sufficient to meet the terms of Clause 1 (ii). This wording should be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by IPSO.

Date complaint received: 02/08/2018
Date complaint concluded: 03/12/2018