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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.
The Red Book is the acknowledged authority on practice and procedure