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Safeguarding your family legal rights - the crucial importance of ensuring that your foreign marriage or divorce is recognised in English Law (30 October 2012)

Date: 30/10/2012
Duncan Lewis, Family Solicitors, Safeguarding your family legal rights - the crucial importance of ensuring that your foreign marriage or divorce is recognised in English Law

Although the courts in England & Wales strives to recognise both foreign marriages/foreign divorces, understanding that their validity and recognition in England/Wales is of a fundamental importance is paramount in ensuring the safeguard of a divorced spouse’ legal rights and entitlements that will follow. The importance of recognising foreign divorces in UK enables former spouse to make financial claims in England/Wales after obtaining a recognised foreign divorce, which may not otherwise be available. If the divorce is recognised then other issues such as: forced heirship wills, including the effect on financial provisions for former spouses legitimacy, nationality and tax entitlement to state/welfare benefits will all need to be considered.

It is now widely accepted that courts will go to great lengths to recognise foreign marriages/foreign divorces. It is essential that people know whether their foreign marriage is recognised in English law as recognition of the marriage will affect the legitimacy of any children and the availability of divorce or other marital claims that naturally follow; it will also have wider implications on an individual’s nationality, immigration, heirship, tax status and entitlement to benefits and financial claims.

For a marriage held in the UK to be valid, it must be monogamous, be carried out in accordance with the necessary legal requirements and parties have the capacity to marry. A claim to have been married in England/Wales must be supported by a marriage certificate issued by Superintendent Registrar or an authorised minister of religion. Foreign marriages are valid in England/Wales if evidence that the ceremony was performed in accordance with the local laws, the parties followed the law of the country in which the marriage took place and they each had capacity to marry. If marriage in a foreign jurisdiction takes place contrary to the rules of that jurisdiction, the marriage will be invalid irrespective of the fact that it complied with the rules of the country of origin from which both parties were from. If one of the parties to the marriage fails to consent to the marriage (i.e.: forced marriage) the marriage is voidable here provided it took place after 31st July 1971. A religious marriage in England/Wales however would not suffice as a valid marriage as the parties are required to undergo a civil ceremony in order for the marriage to be valid.

Unfortunately, not all marriages last ‘till death do us part’. A foreign divorce is recognised in England and Wales provided it was in accordance with the laws of the country in which it was obtained. A foreign marriage can be dissolved in England/Wales provided (i) one party is habitually resident and domiciled in England/Wales; (ii) the parties must be living in England/Wales when petitioning for divorce (covers living in England/Wales but working temporarily abroad). In order to petition for divorce an original marriage certificate should be produced and be translated into English if need be and certified by a notary public or authenticated by affidavit. The parties can then make an application for ancillary and/or financial relief in the same way as any other person who married in England and Wales can, subject to being granted permission from the court to do so, which is usually granted if parties are resident in the UK and have assets here.

Asia Razaq, author and trainee solicitor - Duncan Lewis. Legal 500 Firm Duncan Lewis’ specialises in advising clients on all aspects of International Family Law matters. With branches all across London, if you have any questions arising from this article, please contact Duncan Lewis on 0207 923 4020 or visit www.duncanlewis.com


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