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Longhaul Lovers, overseas marriage: Is it valid in England and Wales?

David Truex and Stephanie Wells

Family Law Journal, April 2001

But is it legal?

It seems that everybody knows a couple who have slipped off abroad to get hitched. Some do it because they want an exotic wedding, something that is a little hard to come by in the United Kingdom unless you are a celebrity with deep pockets. Others marry out of their home country so they can avoid the hassle of organising the wedding and common difficulties such as warring families. Furthermore, an overseas wedding is often significantly less expensive than a wedding with a sit down reception for 100 people including great Aunt Flo whose actual connection with the family is long lost in the depths of time! These are all considerations which the betrothed have long had to deal with. The accessibility of overseas travel, in terms of cost and time involved, has given couples a greater freedom in making their wedding choices.

However, the cry of "buyer beware" should be heeded. As Jerry Hall found to her surprise in 1999, an exotic wedding in Bali does not necessarily result in a valid marriage according to the laws of England and Wales. Though in financial terms Ms Hall is likely to have had recourse to ancillary relief through nullity proceedings had she not settled with Mr Jagger, most people would consider the important issue is to ensure a marriage is valid in the first place. There are implications for children, as a child of the “marrying” parties, born before the void marriage, is not legitimated by the void marriage, though a child born to the parties during the subsistence of a void marriage is considered under statute law to be legitimate. An invalid marriage may also have serious implications for potential pension and inheritance claims. Therefore, it is vital to ensure that an overseas marriage will be recognised in the UK.

The rich and famous need to be doubly aware. Madonna and Guy Ritchie married in Scotland in December 2000 and Scotland is, of course, a separate jurisdiction. Posh and Becks, aka Victoria and David Beckham married in the Republic of Ireland. Both couples needed to be aware of the requirements in England and Wales for the marriage to be recognised here. Additionally, there was a further factor with Madonna and Guy - Madonna is a US citizen. The importance of ensuring validity of marriage where there are significant sums of family money and multiple jurisdictions is, some might say, even greater.

Validity in England and Wales of a marriage contracted overseas

In this article we focus only on the law of England and Wales. This is because marriage laws in other parts of the UK (Scotland, Northern Ireland, and the offshore islands) are different.

If a marriage entered into overseas is to be recognised in England and Wales, it must comply with the requirements of the jurisdiction in which the marriage takes place as well as the fundamental requirements of the laws here.

In England and Wales, a marriage must comply with certain requirements to be valid. It is unnecessary to go into these requirements in depth as lawyers should be familiar with them. Briefly, both parties must be capable of entering into a valid marriage. Relevant considerations include age and sex of the parties and that they should not be within the prohibited degrees of marriage by virtue of their blood relationship (consanguinity) or marriage relationship (affinity). There are also requirements dealing with the form of the marriage, whether religious or civil.

The legal requirements for a valid marriage in other jurisdictions differ from country to country. Couples should check before they decide to marry overseas what they will need to demonstrate to the overseas authorities and double check when they get there. Some wedding services offer advice as to the requirements in different countries. Couples should be made aware that they cannot rely solely on the advice of such services or other unofficial sources. Checks should be made with the relevant authorities in the jurisdiction of the planned marriage. Embassies may also be able to help. If a wedding has been planned well in advance, checks should be made shortly before departure and on arrival to see whether any of the requirements have changed.

Most jurisdictions require minimum periods of residence prior to the marriage. These range upwards from a day or two and cannot be ignored. Proof of marriageable status (for example a certified copy of decree absolute) is also often necessary. Some people may be tempted to end a current marriage in order to enter a new one, by obtaining a quickie divorce, for example in Mexico. Such a divorce may be sufficient to allow a couple to marry in Las Vegas, but will not be recognised here, which could lead to various difficulties. Affidavits setting out ability to marry may be obligatory. Where an affidavit is required it should be in a form recognised by the country requiring it. By way of example, in some jurisdictions affidavits must be notarised rather than simply sworn. Steps should be taken to ascertain the correct form, as woe betide the lawyer who drafts an affidavit in incorrect form, possibly preventing a marriage taking place. It may be essential to draft and swear the affidavit in the country where the wedding will take place.

Some jurisdictions have what we might consider to be unusual rules governing marriage. Bali is one such place. Marriages must comply with the religious beliefs of the parties and only people of certain religions may marry, for example, Jews cannot. Officially, couples must be the same religion and if they are different religions one party must make a written declaration converting to the other’s religion. Whilst this may be a formality, it is worth noting that a false conversion would, presumably, not comply with the requirements of Indonesian law and would therefore not be valid here. The minimum ages under which parental consent is required are higher. Additionally, all non-Islamic marriages must be registered with the Civil Registry or they will not be valid. This was the reason why Jerry and Mick’s marriage was void.

It is also necessary to bear in mind that although there may be a minimum residency period in the jurisdiction where the marriage takes place, there may be an additional period required by any tour operator.

Fatal and non-fatal flaws

Under the law of England and Wales, a failure to comply with all legal requirements for a marriage in the jurisdiction does not necessarily mean that the marriage is invalid. Under the Marriage Act 1949 there are specific flaws which are incapable of rendering a marriage void. The case of Chief Adjudication Officer v Bath [2000] 1 FLR 8 expands upon this point.

In Bath, the wife had been refused a widow’s pension because there was no evidence that the marriage had been validly entered into in accordance with the Marriage Act 1949 (“The Act”). The principal fact was that there had been a Sikh marriage ceremony in England followed by a long period of cohabitation. However, the Sikh ceremony took place in a building that was not a registered building as required by the Act. The parties did not know that the marriage ceremony did not create a valid marriage and behaved as a married couple throughout their 38 years together, including in relation to tax payments and social security contributions. The Court of Appeal held that there had been a marriage, primarily because the Act required wilful and knowing failure to comply. Further, it was held that the silence of the Act on the failure to conduct the ceremony in a registered building meant that the Act did not invalidate a marriage.

It is worth noting that the long cohabitation following the marriage ceremony was an influential point in the minds of the Lords Justice of Appeal, and Robert Walker LJ stated that he doubted that the marriage would have been valid without the long cohabitation. However, the statement is obiter and certainly open to debate given the requirement in the Act that the failure to comply with the requirements be knowing and wilful.

It is therefore important to consider whether both of the parties knowingly and wilfully failed to comply with certain requirements (for example that the marriage must take place in registered premises). Advice taken from the Registrar General’s Office in the aftermath of Bath was that often the key issue is whether the couple believed they were validly married. Though this does not mean that a couple who think that they only have to run around a tree three times to be validly married will be validly married!

Marriages abroad may take many forms that would not be recognised if performed in England and Wales, but as long as the form is valid in the place of marriage then the marriage will be recognised here as long as the fundamental requirements of an English marriage are complied with. For example, in England and Wales it is not possible to marry whilst underwater. Florida laws allow underwater marriage ceremonies and, as long as the marriage is fundamentally valid in this jurisdiction, such a marriage will be recognised here. Conversely, even though in Vermont, USA a same sex couple can marry, the marriage will not be recognised in this jurisdiction. The difference is that the latter example goes to the fundamental requirements, whereas the former does not.

The marriage contract

Although marriage contracts and pre-nuptial agreements are not generally legally binding in England and Wales, in some foreign jurisdictions they most definitely are. Some countries actually mandate a matrimonial financial arrangement so that, even if the couple do not sign a marriage contract, the law will impose particular obligations and entitlements upon them. To avoid uncertainties about rights and duties during the marriage, and in the event of separation or divorce, it will be prudent for the couple contemplating an overseas marriage to take prior legal advice about the possible benefits of entering into a marriage contract.

In certain circumstances English law will recognise and uphold certain terms in a marriage contract. A clear example is seen in the case of S v S (divorce: staying proceedings) [1997] 2 FLR 100. The husband and wife, neither of whom were British, made a pre-nuptial agreement in New York purporting to be governed by the law of that jurisdiction. They married in England and the wife lived primarily in England while the husband jetted around the world on business. When the wife applied for divorce in England the husband succeeded in obtaining a stay of the English proceedings so he could pursue a divorce in New York. Mr Justice Wilson held that, although the New York pre-nuptial agreement was not generally binding, the provision in the agreement providing for New York jurisdiction should be upheld.

So if you are rich and want to protect your wealth from a potentially rapacious ex-spouse, seek legal advice about getting married in a jurisdiction which recognises pre-nuptial contracts and sign the contract before you sign the marriage certificate.

Divorce in a cold climate

Blissful, lust-driven newlyweds rarely contemplate the grim reality of divorce statistics at the time of their marriage. Nevertheless, it is worth remembering that approximately half of all English marriages are likely to end in divorce at some time. So, look before you take that lovers’ leap into matrimony with a foreign connection.

English family law is complicated enough on its own. The House of Lords’ decision in the matter of White v White [2000] 3 WLR 1571 fundamentally changed the way in which financial entitlements on divorce are calculated according to English law. Six months later family lawyers are still trying to work out what constitutes a fair and non-discriminatory financial settlement on the basis of the new White criteria.

When the complicating factor of foreign law is added to the scenario the difficulties are compounded. For example, if an Australian woman and a French man who are resident in England decide to get married at the top of the Empire State Building, what jurisdiction should govern their divorce: New York, Australia, England or France? Of these four, only England does not recognise pre-nuptial agreements. From 1 March 2001 the new Brussels II Regulation governs divorce jurisdiction as between England and France but the new law has no effect in the USA or Australia. What if the happy couple later move to Malaysia and have children there, raising them in the culture and religion of Islam? Which court and system of law governs custody and finances in the event of separation or divorce? Quite possibly there will be legal proceedings in two or more countries. Very expensive!

Home sweet home?

A foreign marriage in a romantic location may be good for a thrill but the practical legal implications should be carefully thought through beforehand. Legal advice before marriage on how to prevent international family law problems arising is far cheaper than trying to solve those problems in the context of a multi-jurisdiction divorce later.

Many couples intending to marry abroad do not seek legal advice as to the validity of their chosen ceremony and location according to foreign and English law. Where, however, legal advice is sought, lawyers should ensure that sufficient research is undertaken as to the practicalities and requirements of the overseas jurisdiction and recognition in England and Wales. Failure to do so could lead to an invalid marriage being contracted, which may have serious implications for the parties, their children and their money, and the lawyer’s professional indemnity insurer.

It might be safer to marry at home.

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