Planning a destination wedding this summer? Make sure it’s legal before tying the knot
Wedding season is in full swing this summer and it’s likely that at least one invitation will be to a sun filled destination, with the happy couple opting for romantic beach views and guaranteed sunshine.
Many couples seek the advice of a local wedding planner, someone who has local connections and can speak the language, with an understanding of the legal requirements to be satisfied - this can vary enormously from country to country.
Some couples can end up having to comply with complex legal requirements. If they have not satisfied the correct legal criteria, then they may not enjoy the legal protection afforded to those who marry in England and Wales if their marriage breaks down.
No-one wants to think of the prospect of divorce when planning their big day. However, if the relationship ends and they find that that marriage was not valid, the financially weaker party may have no right to financial remedies through the family court. There can also be ramifications for unmarried fathers in respect of their children if the relationship breaks down.
It’s important for couples thinking about marrying abroad to research and understand the legal position. If the marriage is not conducted in accordance with the formalities of the country in which they have chosen to marry, it may not be recognised in England and Wales. If the marriage is not recognised this can cause expensive and complex legal proceedings should the relationship break-down in the future. For example, the Maldives is a very fashionable and romantic destination, but it is not possible to have a legally compliant marriage there unless you are a citizen of the country.
To avoid unwittingly falling into such a trap couples should start by asking the following question, do they know the formal requirements for a valid legal marriage in the country they are planning to marry in?
Determining the validity of a marriage conducted abroad is governed by three factors:
- whether the marriage, or equivalent would be recognised in England and Wales
- the formal validity of the marriage and where it takes place
- essential validity of the marriage.
There are differences in whether the parties are married or have entered into a civil partnership, this article deals only with marriages and not civil partnerships.
The differences in formal and essential validity
Formal Validity
The formal validity of the marriage concerns the legal requirements of the country in which the marriage was entered into, the lex loci celebrationis.
This term means the law of the place of the ceremony and couples should ensure that their ceremony abroad satisfies the legal requirements of that country; if this is done, then the general rule is that the marriage is valid even if it does not comply with the requirements for a valid marriage in England and Wales and provided it satisfies the requirements for essential validity set out below.
One such example of this is seen in the case of Burns and Burns [2008] 1 FLR 813 in which an English couple married in a hot air balloon in California. Their marriage licence was obtained after, rather than prior, to the ceremony and as a result their marriage was regarded as “putative”.
According to the law in California, there was no marriage because the licence had not been obtained before the ceremony as required under Californian law.
Couples may fall foul of the technicalities when they hold a ceremony abroad that complies with the lex loci celebrationis of England and Wales but not the country they are marrying in.
In England and Wales, a marriage that is conducted by, or in the presence of a person authorised to register marriages in the locality (between two parties who are over 18), is a valid marriage provided the marriage is entered onto the marriage register and signed by each spouse and two witnesses.
Essential Validity
Essential validity is concerned with three elements:
- the parties’ pre-marital domicile (where the parties have lived and made their home prior to entering the marriage)
- the law surrounding capacity to marry in the place of the couple’s domicile prior to their marriage and;
- the lex loci celebrationis of the place the couple intend to make their marital home (i.e. the legal requirements of the country in which the couple intend to move/ return to).
There is inconsistent case law in the approach of the Courts to essential validity so it is advised that, where at all possible, the couple should ensure that their marriage complies with the formal lex loci celebrationis. If they are domiciled elsewhere before marriage and intend to return to that jurisdiction, they should have regard to the laws governing marriage in that jurisdiction too.
Religious Ceremonies
Different countries will have their own legal requirements and for those wishing to have a religious ceremony abroad, it may even be the case that a civil ceremony is required in England before going abroad to ensure that there is a valid marriage. Whilst, for example, a Jewish couple in England and Wales can marry in a synagogue and that marriage will be recognised, the same is not the case for example in Spain.
It is advisable that couples contemplating a marriage abroad check very carefully with the consulate or High Commission of that country in the UK, or the British Consulate or High Commission in the district where the marriage is to take place, in addition to the competent authorities in the country concerned.
If you are unsure of the legal requirements to have a valid marriage in your destination of choice, you should seek legal advice from a local lawyer to ensure that your ceremony is recognised. It’s important that these elements are investigated early to allow sufficient time for all paperwork and other requirements to be satisfied before the big day.
Taking specialist legal advice before and in the event of the breakdown of the relationship is key in these circumstances.
