Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Re R (Children) (Control of Court Documents) [2021] EWCA Civ 162
(Court of Appeal (Civil Division), King, Peter Jackson, Elisabeth Laing LJJ, 12 February 2021)Practice and Procedure – Disclosure of court documents – Sexual abuse findings –...
AG v VD [2021] EWFC 9
(Family Court, Cohen J, 04 February 2021) Financial Remedies – Matrimonial and Family Proceedings Act 1984, Part III – Russian divorceThe wife was awarded just under £6m...
Become the new General Editor of The Family Court Practice, the definitive word on family law and procedure
The Family Court Practice (‘The Red Book’) is widely acknowledged as the leading court reference work for all family practitioners and the judiciary. We are currently recruiting a...
SCTS releases new simplified divorce and dissolution forms for Scotland
The Scottish Courts and Tribunals Service (SCTS) has released new simplified divorce and dissolution forms of application. As a result of legislation repealing Council Regulation EC 2201/2003, the...
Welsh Government launches consultation on amendments to adoption regulations
The Welsh Government has launched a consultation on the proposed amendments to the Adoption Agencies (Wales) Regulations 2005 and the Care Planning, Placement and Case Review (Wales) Regulations 2015....
View all articles
Authors

David Hodson on International Family Law: Married, Single or Other? Recognition of foreign marriages

Sep 29, 2018, 17:31 PM
Slug : HanahBudd310810
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Aug 31, 2010, 05:32 AM
Article ID : 91343

David Hodson is presently on holiday. Hannah Budd is a solicitor at The International Family Law Group and acts in complex family law cases, often with an international element.

Hannah Budd

The recent Court of Appeal case of Gulubovich (2010) EWCA 810 has refocused attention on the public policy element in the recognition of foreign marriages and divorces. In our experience, deciding whether a foreign marriage and/or a foreign divorce will be recognised in England and Wales is a fundamental prerequisite at the beginning of any case in deciding what advice to give about possible remedies, reliefs and action.

Generally speaking, as a matter of public policy the English Courts bend over backwards to recognise foreign marriages. They look to two independent factors: that the marriage is formally valid, and whether each of the parties to the marriage had capacity to marry.

With regard to formalities there are five rules outlined in Rule 66 of Dicey and Morris (14 edition 2007). The most important is "lex loci celebrationis", essentially the law of the place of the celebration. A foreign marriage will only be formally valid and recognised if it complies with the formalities of the country in which it was celebrated. So, despite a marriage taking place in a foreign jurisdiction being invalid under the formalities required by English Law, an English court will still hold the marriage to be valid and recognised if it complies with the rules laid down by the place in which it took place. Examples of the courts attempts to recognise such marriages are evident in cases where marriages were recognised when the marriage location was possibly not registered, and where the bride and groom were not even present at the ceremony.

The second factor is that of capacity. Rule 67(1) of Dicey and Morris that "capacity to marry is governed by the law of the party's anti nuptial domicile". A marriage between two people with two different pre-marriage domiciles celebrated in a foreign country will be void where the law of the ante nuptial domicile of one of them denies the individual the requisite capacity to marry. However, the rule has often been liberally interpreted in the English Courts to maximise the likelihood of recognition.

It is essential that a client knows whether or not their foreign marriage is recognised in English law. Recognition of the marriage will affect the legitimacy of children and the availability of divorce or other marital claims as well as wider implications on an individual's nationality, immigration, heirship and tax status and entitlement to benefits. International family law cases can seem initially daunting, confusing and very complex. They require a logical, systematic and careful analysis of the law and issues. Very often this starts with an analysis of recognition.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

Categories :
  • Articles
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from