Recognition of validity of foreign marriages
Courts in England & Wales recognise foreign marriages as long as they comply with the conditions of the court within which the marriage was celebrated.
Dicey & Morris ‘The Conflict of Laws’ 16th Edition gives us the following explanation :
RULE 74—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 recognised as sufficient by the law of the country in which the marriage was celebrated;
2) The marriage is celebrated in a prescribed country outside the United Kingdom in accordance with the provisions of the Overseas Marriages (Armed Forces) Order 2014 between parties of whom at least one is a member of Her Majesty’s Forces serving in that country, or a relevant civilian as defined in that Order, or a child of, and having its home with, any such person; or
3) (in cases not falling within the Overseas Marriages (Armed Forces) Order 2014) the marriage is celebrated in accordance with the requirements of the English common law in a country in the belligerent occupation of military forces and one of the parties is a member of those forces or of other military forces associated with them; 6 or
4) the marriage, being between parties of whom at least one is a United Kingdom national, is celebrated in a country or territory outside the United Kingdom in which insufficient facilities exist for them to enter into a marriage under the law of that country and in accordance with the provisions of the Consular Marriages and Marriages under Foreign Law (No. 2) Order 2014;5) the marriage is celebrated in accordance with the requirements of the English common law in a country where the use of the local form is impossible
Most of the time the main question as to the validity of an overseas marriage will be concerned with subsection 1 above. Basically that means we must consider whether the form of marriage was recognised as sufficient in the country within which the marriage took place.
If your marriage was a legal marriage in the country where you married, then your marriage is also a legal and valid marriage in England.
We often get asked by clients, ‘but we didn’t marry in England how can we divorce here?’ The answer to that question is fairly simple. No matter where you married, if it was a legal marriage there, then it is a legal marriage here in England too.
This rule has been around for a very long time. It was originally confirmed by the Privy Council as long ago as 1930 in Berthiaume v Dastous [1930] AC 79 where it was decided:
“If there is one question better settled than any other in international law, it is that as regards marriage – putting aside the question of capacity – locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all over the world … If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere …”
Naturally not all marriages are as straightforward as this. We often deal with complex situations where one of the spouses denies that the marriage was a legal marriage. If you have similar concerns or questions, you will need to contact us for an assessment of your particular circumstances.
