When will overseas marriages not be given recognition?

Typically, a marriage conducted abroad will be legally recognised in England and Wales, provided that the ceremony met the legal requirements of the country where it happened. 

However, there are rare circumstances where foreign marriages will not be legally recognised. This lack of recognition may occur if:

• Either party is domiciled in England and Wales and the marriage contradicts English and Welsh law, e.g. either party was underage when the marriage occurred
• The marriage is “so offensive to the conscience of the English court” that it should not be recognised – i.e. if it sufficiently contravenes public policy

It is generally more likely that the English and Welsh courts will decline to recognise an overseas marriage due to the parties’ domiciles, rather than on the ground of public policy – i.e. that the marriage is sufficiently “offensive” to the court’s conscience.

If you are considering or going through a divorce and are concerned that your overseas marriage is not legally recognised in England and Wales, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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Where one or both parties are domiciled in england and wales

For parties who are domiciled in England and Wales, English and Welsh law may have extra-territorial effect on the validity of their marriage, even if they enter into it overseas.

This is evident from the case of Pugh v Pugh [1951], where the court found that a marriage was void due to the ‘wife’ being underage. In the case, a man of English domicile married a 15-year-old girl of Hungarian domicile in Austria. This was a lawful marriage according to Hungarian and Austrian law, but not in England and Wales. The court held that as the man was domiciled in England and Wales, and the marriage was not lawful under English and Welsh law, the marriage was void.

The judgment in Pugh was upheld in A Local Authority v X & Anor (Children) [2013] EWHC 3274 (Fam). Here, a 14-year-old girl of English domicile was married in Pakistan to a man domiciled there.  The court held that as per Pugh, the statutory provision as to minimum age under English and Welsh law is extra-territorial if either party is domiciled in England and Wales. If the case was heard today, the girl’s family and those in this jurisdiction who facilitated the marriage would be guilty of a criminal offence under the Marriage and Civil Partnership (Minimum Age) Act 2022.

Does the marriage contravene public policy?

This principle was established in Cheni v Cheni [1965], which involved the marriage between an uncle and niece, who had married in Egypt in accordance with Jewish and Egyptian law. The couple later moved to England, and the wife petitioned for nullity. Despite the prohibition of marriages between uncles and nieces in England and Wales, Sir Jocelyn Simon recognised the marriage as valid. He stated that the question for the courts is whether a marriage is “so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law”. In determining this, the court “will seek to exercise common sense, good manners and a reasonable tolerance”. In this case, it was determined that the marriage between the parties did not meet this threshold.

In contrast, KC & Anor v City of Westminster Social & Community Services Dept. & Anor [2008] EWCA Civ 198 provides an example of an overseas marriage not being recognised due to it being “sufficiently offensive to the English court”. The ‘husband’, IC, was domiciled in England and Wales and was described as having “severe impairment of intellectual functioning and autism” to the extent that “in no area of his development does IC currently show the skills that are to be expected of an average three year old.” He therefore did not have capacity to marry under English law. Despite this, his family arranged for him to marry a woman in Bangladesh in a ceremony conducted over the phone. The marriage was lawful under Bangladeshi and Sharia law, and the court held that it was likely that the jurisdiction where the marriage occurred was Bangladesh. However, the marriage was not entitled to recognition under English and Welsh law.

Of course, in KC v Westminster, the ‘husband’ was also domiciled in England and Wales. Where neither party is domiciled in this jurisdiction, caselaw suggests that refusing to recognise an overseas marriage between parties domiciled abroad, on the basis of English law’s ‘conscience’ will be rare. For example, in Alhaji Mohamed v Knott [1969] 1 QB 1 the marriage between a 13-year-old girl and a 26-year-old man was recognised as valid, despite the prohibition of marriage for those under 16 (now 18). The marriage had been conducted lawfully in Nigeria, where both parties were domiciled. The similar case of Pugh, heard over a decade previously, had a significantly different outcome due to the issue of domicile.