Foreign Marriages

Place of Marriage

The well-established principle is that the formalities of marriage are governed by the place where the marriage ceremony takes place. The validity is determined by the laws of that jurisdiction only. Even if a marriage might be valid in the same circumstances domestically, it would be invalid if not valid in accordance with the laws of the place where the marriage is celebrated.

The general principle is that validity applies on a once and for all basis at the time of the ceremony of marriage. It has been suggested, however that if the foreign law is changed to retrospectively recognise an invalid marriage, then a domestic court may recognise the change.

There may be a question as to whether a party has the capacity to marry after a foreign divorce. Little difficulty arises where foreign divorce is recognised under domestic Irish law. As set out separately, this has been a very difficult area and has changed radically over the last 30 years.

Common Law Marriage

A so-called common law marriage is one by agreement without being celebrated in the presence of any religious or state authority. Britain and Ireland do not recognise common law marriages. However, it may be recognised where it is valid under the law of the place where it was effected.

There were some cases in which common law marriages were recognised where compliance with local formalities was prevented by some supervening difficulty, particularly in quasi-colonial outlying areas. In these cases, English courts were prepared to recognise marriages with or without celebrants by pledging to each other.

Cases have recognised the validity of such marriages in times of war, where the civil registry ceased to function. The courts have tended to confine recognition of such marriages to cases of necessity, often an extreme necessity.

Foreign Informal Marriages

Complications arise regarding the law of the place of marriage in some cases. Some countries allow marriage by correspondence.

In this case, it would appear that the law is that of the place where the contract is concluded under local law. Some countries allow marriage by proxy. In this case, it would appear that it is the place where the proxies go through the relevant ceremony.

Some countries allow marriage by habit and repute. Generally, however, the characteristic steps or actions are required to be completed within the country concerned.

It appears that the courts are likely to uphold the validity of a marriage which is void under local law at the relevant time but is validated retrospectively.

The Marriages Act 1972 validated certain marriages solemnised in certain Departments of France (in the region of Lourdes between Irish citizens). They were celebrated in or near Lourdes in churches but were not the subject of civil ceremonies as required by French laws. The marriages were validated under the Marriages Act 1972.

Diplomatic

The Foreign Marriages Act 1892 deals with marriages validly celebrated by British citizens abroad before ambassadors and consuls and some other members of diplomatic missions. The Act extended to Ireland. It is not clear if it has continued to apply or whether it might be interpreted as inconsistent with the circumstances of the Irish Free State and Ireland under the 1922 and 1937 Constitutions.

Capacity to Marry

Legal capacity to marry governs a person’s ability to contract a marriage. A person may be precluded from marriage because of age, mental incapacity or legal impediments.

There are a number of potential approaches to the issue of capacity to marry. In broad terms, the dual domicile test is most widely recognised. The intended family home test has some place in case law as well.

A number of exceptions are recognised. The marriage of a person domiciled within the state is valid, notwithstanding the fact that the other spouse does not have capacity under the law of his or her domicile.

Foreign states may deny capacity based on marriage outside of caste, race or adherence to religion. The law of foreign domicile will not be recognised as covering an incapacity if it is repugnant to public policy.

Approaches to Capacity

The traditional and principal view is that a marriage is governed by the dual domicile doctrine. This states that the marriage is invalid unless according to the law of the domicile of each party, each party has capacity to contract the particular marriage.

This is the case irrespective of whether the incapacity is absolute (e.g. below aged) or that two parties are forbidden to marry each other (e.g. by reason of consanguinity or under the rules of a foreign jurisdiction).

Questions of reason arise as to whether the same principles should apply to all issues of capacity. The UK courts have suggested that the quintessential validity of the marriage should be governed by the laws of the country in which the marriage has the most real and substantial connection. An alternative basis is that the validity of the marriage would depend on the law of the place of the intended matrimonial home. There is some support for this view but they are in the minority.

An exception to the rule has been recognised in the UK. The validity of a marriage celebration domestically between persons of whom one is a national and the other is a foreign domicile is not affected by an incapacity which, though existing under the law of the foreign domicile, does not exist under domestic law. If one has a domestic domicile, a foreign incapacity affecting the other and unknown to domestic law must be disregarded if the marriage takes place in the jurisdiction.

However, this approach has been rejected. The majority view appears to be in favour of a single test only – generally,  the dual domicile test.

Foreign Marriage Complications

It is necessary to the recognition of a marriage that it is a lifelong union, albeit subject to the possibility of dissolution. It must be potentially indefinite.

It must not be polygamous. However, it appears the courts are willing to recognise marriages that are potentially polygamous and possibly some marriages which might be deemed polygamous under domestic law.

A foreign marriage would be bigamous if the Irish courts declined to recognise the foreign divorce or annulment. This issue may impact upon capacity. This may raise difficult questions. The courts have taken different views.

One view applies the law of the country with which the marriage has the most real and substantial connection. Another view is that divorce carries a right to remarry even abroad so that the incidental question of recognition does not arise. The courts have been inclined to the view that the foreign divorce or annulment which is not recognised in the country of domicile should not by itself affect the validity of the later marriage elsewhere.

Polygamy

At common law, a marriage which was formally and essentially valid under foreign rules might be invalid if it was actually or potentially polygamous. This principle has eroded over the course of the last 100 years. The modern position is that it is limited to marriages that are actually polygamous.

The question arises as to what law determines the essential nature of the concept of marriage. A number of different approaches might be taken. It might be the law of the place of celebration, the law of the domestic court or the law of the domicile of the parties.

Complicated problems may arise where the marriage is in a jurisdiction or culture where the essential nature of marriage differs from that recognised in countries with a Christian tradition.

Conversion to Monogamous

Under foreign systems, marriages which commence as potentially polygamous may become monogamous. This may happen by the birth of children, by the entry of another ceremony, etc. There is support for the view that a conversion to a monogamous form by a further ceremony would be recognised.

There is also authority for the proposition that if a party by change of law or change of domicile ceases to enjoy the potential for polygamy, then the marriage may be recognised as monogamous.

However, the difficulty of this situation is that logically a reverse should be recognised. That is, a marriage which commenced as monogamous might subsequently be refused to be recognised on the basis of parties changing domicile, religion, etc, which would be anomalous.

Modern Approaches

The modern approach appears to be more willing to recognise a polygamous marriage as valid in some cases and for some purposes. This follows the principle that a marriage which is valid under the local law should be accepted and acted on in other countries.

There is support in the United Kingdom for upholding actual polygamous marriages in other countries in certain cases and for certain purposes. It appears that marriages are recognised for the purpose of succession and property rights. Domestic legislation makes specific provisions for the recognition of civil partnerships.

The law of the place of celebration of marriage determines its nature and the incidents attached to it. A domestic court will consider whether a marriage is monogamous with reference to these criteria.

The issue of capacity is determined by the law of the domicile. A marriage may be invalid because the parties lack capacity under the law of the domicile, notwithstanding that the local law allows polygamy. It is likely that Irish law does not accept that a person has the capacity to contract polygamous marriage, notwithstanding that going through a form of marriage in a country where polygamy is permissible.

The modern trend has been to extend maintenance and other recognition to polygamous marriages. It has also been to recognise potentially polygamous marriages, which are not in fact, polygamous.