It is becoming increasingly popular to marry abroad.
British couples choosing to marry on an exotic tropical island paradise are jetting off to guarantee some sunshine on their big day.
But, is the marriage a valid one, and furthermore if the relationship does go south and sadly end in divorce, what can you do about starting divorce proceedings back home in England?
Validity of marriages celebrated abroad
In a marriage contracted abroad, reference is made to s.14 of the Matrimonial Causes Act 1973, which leads to application of the rules of private international law.
The leading text is found in Dicey, Morris & Collins, The Conflict of Laws 14th ed (2006) at page 789 where it is said that the formal validity of a marriage contracted outside of England and Wales is governed by the law of the country in which it was celebrated – the lex loci.
If the marriage is formally valid in that country, it is formally valid everywhere and the converse is true.
If it is not clear whether the marriage is valid, then it may be necessary to seek a Declaration of Marital Status under the Family Law Act 1996.
Declarations as to Marital Status
The relevant provisions are found in S.55 Family Law Act 1996:
(1) Subject to the following provisions of this section, any person may apply to the High Court or a county court for one or more of the following declarations in relation to a marriage specified in the application, that is to say—
(a) a declaration that the marriage was at its inception a valid marriage;
(b) a declaration that the marriage subsisted on a date specified in the application;
(c) a declaration that the marriage did not subsist on a date so specified;
(d) a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales;
(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in England and Wales.
(2) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the parties to the marriage to which the application relates-
(a) is domiciled in England and Wales on the date of the application, or
(b) has been habitually resident in England and Wales throughout the period of one year ending with that date, or
(c) died before that date and either—
(i) was at death domiciled in England and Wales, or
(ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death.
(3) Where an application under subsection (1) above is made to a court by any person other than a party to the marriage to which the application relates, the court shall refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.
I have a valid marriage, but now I want a divorce. Where is my marriage certificate?
To issue divorce proceedings in England & Wales, a petitioner is required to file their marriage certificate or a certified copy obtained from the Registrar. If the certificate is available, then that is not a problem.
However, if the certificate was from a foreign country and is not in English, then the Petitioner will need to obtain a certified translation of the marriage certificate when filing the paperwork for the divorce.
If the matter is urgent, in certain circumstances the petitioner can give an undertaking to the court that they will file the marriage certificate as soon as it is available and in any event before decree nisi is pronounced.
This might be necessary in situations where one party is racing to keep the jurisdiction of England & Wales when their spouse is trying to issue abroad first to benefit from the foreign jurisdiction.
I have lost my foreign marriage certificate
To issue the petition here you will need the original or a certified copy. This may be difficult to find or obtain. However, if you have lost your certificate, then you will need to contact the Registrar or equivalent local authority in the country you were married and request a certified copy.
It is vital to have evidence of the marriage and the validity of the ceremony. In extreme circumstances, when you have exhausted all other avenues for obtaining a copy from the country where you were married, the court may entertain an application for permission to proceed without the original document.
Such an application is rare, and you will should take legal advice if you need to take this route if looking to start divorce proceedings without your marriage certificate.
Your marriage certificate is a vitally important document.
Each country has different regulations and you will need to contact the authorities in order to start the process of obtaining a copy of the certificate. The relevant Country’s Government Embassy is a good place to start, and many have a system of application via their websites.
If marrying abroad, the best advice is to go through a recognised tour operator or planner. That way, the chances are if you do lose the marriage certificate they will have a record, and may even be able to assist you to obtain a copy from the local authority in the relevant country.
Keep a copy of the certificate somewhere safe, perhaps even scan it into your computer to store online. That way, if you cannot get hold of a new copy, the court may accept the electronic version.
About James and Frank
James Thornton and Frank Arndt, matrimonial experts, founded Paradigm Family Law in 2014. It is a niche practice specialising in family law advice and the first family law firm to offer services on the basis of BESPOKE FIXED FEES tailored to clients’ particular needs and requirements.
James and Frank have over 30 years’ experience in the field of family law, and provide specialist legal advice for family matters including international family disputes.