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Is my marriage valid?10th February 2020 Family Law
We often get asked whether a marriage ceremony that took place abroad is recognised in England and Wales. This question can come up for a variety of reasons but enquiries tend to fall into two categories:
- Can I get divorced in this country after getting married abroad?
- Will the UK authorities recognise my marriage for other official purposes?
Validity of an overseas marriage
In the vast majority of cases, a marriage will be recognised in England and Wales if it was validly celebrated in the relevant overseas country. We don’t often use Latin in the legal profession anymore but this is one area in which it comes up. Lawyers refer to the lex loci celebrationis, which literally means the law of the place of celebration. Essentially, if the correct formalities were observed in accordance with the law of the country in which your wedding took place then all should be well.
There can be practical problems. The marriage certificate may have been issued in a language other than English. This issue can be resolved by obtaining a translation. However, for this translation to be accepted by the UK courts or other official agencies, the translator will need to certify the document as well as simply reproduce its contents in English. Using a reputable translation company is really important here. Your own translation, no matter how proficient a translator you may be, would not be accepted.
More substantial problems can arise when the marriage took place without the issue of documentation. This may be entirely normal in the relevant overseas country. However, in the UK there will be difficulties in proving the marriage took place at all. In the absence of documentation, it is possible to apply for a declaration of marital status. The court will look at the evidence for the existence of a valid marriage (witness testimony, wedding videos, invitations, photographs etc) and whether it complied with the laws of the country in which it took place, and then make a declaration which will stand as proof that there either is or is not a marriage in existence.
An interesting recent case
I’ve already mentioned the lex loci celebrationis – the law of the place of celebration – which is crucial to establishing whether a marriage does in fact exist. However, what if the law in question is the law of somewhere that is itself not recognised as a country by the UK?
This is exactly what happened in the case of MM v NA (Declaration as to Marital Status)  EWHC 93 (Fam). A Dutch national, resident in the UK, met and married someone while in Somaliland. The couple were happily married but ran into difficulties completing official paperwork. They were content to undergo a civil wedding here in the UK to regularise their position. However, the registrar refused to allow this because of their existing Somaliland marriage.
By way of background, Somaliland is an autonomous territory in Somalia, which declared independence in 1991 but is not recognised as a sovereign state by the international community. However, it is a functioning administration and the UK government has close links with its government, while maintaining that it is for Somalia and Somaliland to decide their future. The UK authorities do not recognise Somaliland as an independent state but could they recognise a marriage that took place there?
The judgment is long and detailed and examines the history of the so called “one voice” principle, which is that UK foreign policy and the decisions of the courts should be consistent (or speak with “one voice”).
On the face of it, if a territory is not recognised by the UK government then court decisions should reflect that. This would surely extend to refusing to recognise a marriage conducted in accordance with the laws of an unrecognised territory and any related paperwork. This would have meant that the couple involved would have to get married in the UK to be regarded as married.
However, there is a long-established exception to the “one voice” principle in the field of private rights, which includes the registration of births, marriages and deaths, inheritance matters, and certain contracts amongst other things. This means that a marriage conducted in a territorial entity other than a recognised state may still be held valid. Accordingly, the couple were declared to be married without further formalities.
This judgment is of immediate importance for the large UK diaspora community from the region. It also reiterates the potential for subtlety within private international law and the adoption of a pragmatic approach to personal issues where a less compromising stance might be inferred from official government policy. Whilst it is not a green light for any individual to declare independence and start celebrating marriages, the judgment will be welcome news for couples who have wed in disputed territories.
Void, voidable and non- marriages
The issue of marriage validity in general is a hot topic at the moment, following the High Court’s controversial decision in Khan v Akhter. This case was about a Muslim religious marriage (Nikah) which took place in the UK without civil formalities or a subsequent register office ceremony. For specific factual reasons, the couple were declared to have a void marriage, rather than no marriage at all. This opened up the possibility of the parties claiming the same financial provision from each other as they could if they were going through a divorce. If theirs had been judged a non-marriage – as is very often the case with UK religious marriages without civil formalities – they would have been treated simply as cohabitants with few legal rights.
The case went to the Court of Appeal and is considered so significant that the government has joined the case as a party. The judgment is hotly anticipated and could well lead to an appeal to the Supreme Court.
Depending on the outcome of the case, it could provide the impetus for a change in the law whereby religious marriages taking place in the UK must be legally registered. Even if such legislation were not forthcoming, the government could find itself under pressure to consider other measures to make sure those (women especially) in religious-only marriages are not being short-changed.
Marriages that take place overseas do not need to be registered in this country in order to be recognised. Provided the marriage was lawful and valid in the country of celebration, recognition here should not pose a problem. This may apply to marriages formed in disputed or self-declared states, depending on the circumstances. In difficult cases, the courts have mechanisms to resolve disputes over proof that a marriage took place lawfully.
The question of marriage validity and recognition is not restricted to weddings that take place overseas and this is an issue we can expect to hear a great deal about in future.