The romantic relationships we have are increasingly reflected by the globalised world in which we live. It is now entirely commonplace for international families to be made up of spouses and children all different nationalities and perhaps all living in a country in which none of them were born. In turn, there is then an increasing relevance in UK family law of marriages obtained abroad. The purpose of this article will be set out how the UK family courts will approach a marriage obtained abroad, and whether the same will be upheld as valid.
Is your marriage valid?
The subject of marriages obtained abroad is as diverse as the approach taken around the world to those formalities and to people’s intentions when entering them. Some countries are more bureaucratic than others, some are far less formal. If there is any doubt as to the possible validity of a marriage a UK qualified family lawyer should be consulted. There is a perhaps surprisingly significant number of people who think they have obtained either divorces or marriages abroad, only to be told that they are not considered valid by the UK Court. This can be of huge relevance, as a valid marriage can stand as the gateway to the availability of financial orders and has significance in things such as tax relief and treatment under pensions or annuities.
How does the UK court decide if a foreign marriage is valid?
There are three main factors which the UK family Court will investigate to determine whether the marriage ceremony that has taken place should be considered valid and, consequentially, recognised. These are form, capacity and that it is not against public policy. These factors are consistent with the approach taken in most of Europe when considering a marriage ceremony undertaken abroad.
The starting point will be that the marriage process through which the parties have been complies with the local law in the country in which it was undertaken. Each country has different requirements when it comes to the requirements for a proper marriage and so it is extremely important when one is considering a marriage abroad to be fully aware of what requirements must be complied with. A country such as Oman, requires the specific permission of the government to be given to a non-Omani person seeking to be married there. There are some people each year who go through a ceremony purporting to be a marriage in Oman without first obtaining this permission. The ceremony is then, consequentially, not valid in Oman or the UK.
Legal steps to form a valid marriage abroad
There is usually good information online about what requirements exist for specific countries although one should always be cautious about information provided simply by a website which may not have been written by an actual expert in the local law. If there is any doubt, expert local lawyer opinion should be sought as to the specific requirements of any jurisdiction.
There are exceptions to the requirement to comply with local law, advice that can be provided in specific instances where relevant, but the best starting point is to comply with the local law in the first place. If compliance is impossible, then one should take advice as to whether in such circumstances one of the exceptions as to recognition would apply.
It is also important that both parties have ‘capacity’ to marry. The relevant capacity depends upon the country of the parties’ domicile. Domicile is a legal concept that is usually someone’s nationality but can change if someone changes the location of where they consider their permanent home. Usually, the parties must be considered to have capacity per both their domiciles, with exceptions that usually pertain to capacity per UK family law. This can be quite a complex area, and specific advice should be obtained if there is any doubt as to whether the UK family court would consider there to be capacity or not.
There are some further specific matters which one should be aware of. Whatever the law of either parties’ country of domicile, the UK will not recognise a marriage which has been entered into without the consent of both parties. There are specific prohibitions contained within the Marriage Act 1949 when it comes to the ceremony followed and it might be that there is a requirement for a civil ceremony as well as a religious one (such as in the UK).
The public policy requirement is more nebulous and harder to define. The standard is very high in that it would not be recognised if it was unconscionable to do so. Any marriage which involves more than two parties should be subject to legal advice as to whether it would be capable of recognition. Effectively, a polygamous marriage will be considered as valid if the parties involved had capacity and none of them were domiciled in England and Wales (see section 11(d), Matrimonial Causes Act 1973).
Void and Voidable Marriages
There is a substantive and important difference between a marriage which was flawed in the process and one which was impossible to complete, this is the difference between being void/voidable and simply being a non-marriage. Where a marriage is voidable a declaration of nullity can still lead to financial remedies. This is following section 14, Matrimonial Causes Act 1973 whereby the Court can overlook a flawed marriage process for the purposes of financial orders. This then makes this distinction very important and one which can have very high financial stakes in the outcome.
If there is an issue over the validity of a marriage, the appropriate application is under section 55, Family Law Act 1986. A declaration can be made either way: that a marriage did or did not exist following the procedure undertaken by the parties. To be able to apply for this provision, at least one of the parties must have been domiciled either on the day the parties were married or for one year prior to the application being made. These applications can be costly but a cost/benefit decision should be made, as quite often a great deal can hinge on the outcome.
This article was written by Byron James, a barrister at Expatriate Law. Byron can be contacted by email at Byron@expatriatelaw.com.