International marriages — is your destination wedding valid and other international marriage considerations

If you are thinking about getting married abroad, you will need to ensure that your marriage is valid here in England as well as in the country you choose to get married in. Undoubtedly, you will want to be legally recognised as “married” when you return home from your honeymoon. However, it is especially important if the worst were to happen and your marriage breaks down. Your claims for financial relief could be severely limited if your marriage is not found to be valid.

There are four different types of marriage — valid, void, voidable and non-marriage — and we will explore them in more detail below.

How can I make sure my marriage is valid?

The validity of a marriage entered into abroad is governed by the legal requirements of the country in which you are marrying and the legal requirements of your home country. So, a sensible starting point would be to contact the foreign embassy or consulate of the country you are considering getting married in to obtain first-hand information about the legal requirements for a valid marriage in that jurisdiction. The good news is that once you are married and arrive home you do not need to register the marriage here.

Although you must meet the legal requirements of the country in which you are marrying, you are still bound by the laws of your home country in so far as your capacity to marry is concerned. If your home country is England or Wales, then the requirements are set out in the Marriage Act 1949 and include being old enough to marry, i.e. 18 or over. The minimum age in other jurisdictions could be different, for example.

It is important to understand the interplay as it could produce some surprising results. For example, an Islamic marriage ceremony that takes place in England is not recognised as creating a valid marriage if it does not fall within the requirements of the Marriage Act 1949. However, a religious ceremony that takes place abroad may be recognised here in certain circumstances.

Read our report on the case of Akhter v Khan which explored these issues in more depth.

The key piece of legislation which deals with financial claims on divorce in England and Wales is the Matrimonial Causes Act 1973. If your marriage is valid, you can claim under this Act. If your partner has issued divorce and financial proceedings in another jurisdiction it may be that you can still make a claim in the UK for provision under the Matrimonial & Family Proceedings Act 1984 for financial relief after a foreign divorce. However, whether you can make a claim will again depend on the status of the marriage and also the format of the divorce in the foreign country.

It’s not valid, could it be void or voidable?

A void marriage is one which is so flawed that it is treated as if it never existed and the parties were never married. For example, the required formalities were not complied with. When considering whether a foreign marriage is void, the court will consider whether there were sufficient elements or characteristics of a valid marriage. If not, the marriage is treated as a non-marriage.

Factors the court considers include:

• whether the event set out or held itself out to be a lawful marriage
• whether the event bore all, or enough, of the hallmarks of marriage
• whether the purported spouses and the official officiating believed, intended and understood the ceremony as giving rise to the status of lawful marriage
• the reasonable perceptions, understandings and beliefs of those present.

A voidable marriage is one that continues to exist until a Nullity of Marriage Order is pronounced. The parties have discretion regarding whether to annul the marriage. Reasons include non-consummation or lack of valid consent, (through duress, mistake, unsoundness of mind or otherwise).

If the marriage is void or voidable then, importantly, a party to it can apply for financial relief under the Matrimonial Causes Act, but they cannot do so if it is a non-marriage.

What if it’s a non-marriage?

Here, the ceremony falls so far outside the bounds of what would be considered a valid marriage ceremony that it cannot be treated as any sort of marriage. A party has no financial claims under the Matrimonial Causes Act.  

The only routes potentially available would be as a cohabitee under the Trusts of Land and Appointment of Trustees Act 1996, or as a parent under Schedule 1 to the Children Act 1989 if there are children.

This is a complex area of law and it is very important that early advice is sought in the following circumstances:

1. If you are planning a destination wedding and are unsure of its validity/legal recognition here. Obtaining advise can ensure that any issues are remedied so that you can be confident that you will be able to make financial claims in the event the marriage fails.
2. If you are contemplating a divorce and there is an international element to your marriage, (e.g. you are married abroad, your partner is from another country or has strong connections to another country). Early advice is vital as they may otherwise secure a divorce elsewhere which leaves you with limited financial claims.
3. If you have divorced abroad but have connections to the UK. We can advise whether any further claims may be open to you under UK legislation.