Married online?

28th January 2021 Family Law

Last week I was interviewed on ITV’s Granada Reports about virtual weddings. Most other aspects of life have gone online since the first coronavirus restrictions came into force last March so why should weddings be any different?

Turns out, it’s a little bit more complicated than that. Under the law in England and Wales, it is not possible to get married or enter into a civil partnership without the physical presence of both parties in a place approved by law. 

So that’s online weddings out of the question then? Once again, it’s a little bit more complicated than that.

The issue here is that the validity of a marriage turns largely on whether it is legal in the country in which it was celebrated. This has come up in cases where unregistered religious marriages have been carried out in the UK,leading to a marriage that is neither valid nor even void but is categorised as a “non-qualifying ceremony”. Had the marriage taken place in a country where unregistered religious marriages give rise to a legal marriage, the outcome could have been entirely different.

There are certain overriding issues that can affect marriage validity on grounds of public policy, regardless of whether the marriage was legally valid in the country in which it took place. However, for the most part, a marriage or civil partnership equivalent will be recognised in the UK if the right formalities were observed in the country of celebration.

In some countries, the coronavirus pandemic has prompted the authorities to relax the requirement for marriages to be celebrated in person. Governor Andrew Cuomo issued an executive order in April 2020 allowing residents of the state of New York to obtain a marriage licence online and participate in a wedding ceremony by internet link. This provision is restricted to New York residents and, crucially, both parties, the celebrant and witness must be physically present in the state. I would be very surprised if a court in England and Wales refused to recognise a marriage conducted under these circumstances. 

The American state of Utah was cited in the case reported by Granada and virtual mass weddings have also taken place in the United Arab Emirates.

Things become more complicated when you have parties, celebrants and witnesses located in multiple countries. Whilst there is no specific ban on the UK authorities accepting the validity of a marriage celebrated in this way, I would advise anyone considering getting married online to think very carefully about the legalities and take advice in each relevant country. The place of marriage is crucial to determining which laws govern the validity of the marriage so as an absolute minimum one would need some clarity on where this actually was.

Another factor to add into the mix are internet providers offering marriages “just for fun” or “fake online weddings”. Couples who have entered into non-qualifying “marriage-like” ceremonies but failed to follow up with a valid legal ceremony have ended up in the courts arguing whether their marriage is valid, void (exists but with procedural defects) or non-existent. Such situations are of particular concern where inexperienced or vulnerable parties are left uncertain as to their legal status.

Why does all this matter? 

If a couple separates, certainly in England and Wales, it is really important to be certain whether they are married or not as this markedly affects the financial outcome on divorce. Couples in valid or (it may surprise you to learn) void marriages can obtain financial provision such as lump sums, maintenance and pension sharing orders from each other. Couples whose marriages are non-qualifying (formerly described as “non-marriages”) will be treated as mere cohabitants, reliant on a patchwork of property law provisions and – if relevant – child maintenance legislation. Marriage can be a key factor in determining immigration status and may have benefits in relation to tax. On death, matters of inheritance, particularly if there is no will, are profoundly affected by marital status.

Getting married is an emotionally, socially and legally transformative process. While the rising virtualisation of a huge array of services and social interactions has changed all our lives, online marriage should be approached with a very high level of caution. 

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Elspeth Kinder is a Partner and Head of Department located in Manchester Londonin our Family department

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