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 at once basis and for all date at the time of the ceremony of marriage. It has been suggested however that, if the foreign law is changed to retrospectively recognised an invalid marriage then a domestic court may recognise the change.
The question as to whether a party has capacity to marry after a foreign divorce. Little difficulty arises where the 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.
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 and indefinite.
It must not be polygamous. However, it appear the courts are willing to recognise marriages that are potentially polygamous and possibly some marriages which might be deemed polygamous under domestic law.
Certain marriage celebrated in or near Lourdes in churches are not the subject of civil ceremonies as required by French laws. The marriages were validated under the Marriages Act 1972.
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. The traditional and principal view is that a marriage is governed by the dual domicile doctrine. This is a principle that the marriage is invalid unless according to the law of the domicile of each party, each party have 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 a foreign jurisdictions rules). 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 it is the minority view.
An exception to the rule recognised in the UK, that the validity of a marriage celebration domestically between persons of whom one is a national and the other is 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. The rule has been criticised as arbitrary and discriminatory.
Foreign states may deny capacity on the basis of marriage outside of cast, race or adherence to religion. The law of foreign domicile will not be recognised discovering an incapacity if it is repugnant to public policy
Questions of reason as to whether the same principle 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. This was suggested in the context of a sham marriage. However this approach has been rejected. The he majority view appears to be in favour of a single test only generally, the dual domicile test.
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 .
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 to that recognised in countries with a Christian tradition.
Under foreign systems marriages which commence as potentially polygamous may become monogamous. This may happen by the birth of children and entry of another other ceremony et cetera. 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 that marriage which commenced as monogamous might subsequently be refused to be recognised on the basis of parties changing domicile, religion et cetera, which would be anomalous.
The modern approach appears to be more willing to recognise a polygamous marriage as valid in some cases and for some purpose. 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 United Kingdom for upholding actually polygamous marriages in other countries in certain cases and for certain purposes.
It appears that the marriages are recognised for the purpose of succession and property right. Domestic legislation makes specific provision of recognition of civil partnership.
The law of place of celebration of marriage determines its nature and the incidents attaching 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 on Irish law does not accept that a person has 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.
Complications arise regarding the law of the place of marriages 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 characteristics 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 subsequently retrospectively validated.
The Marriages Act 1972 validated certain marriages solemnised in certain Departments of France (in the region of Lourdes between Irish citizens)
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 a number of cases of 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 extreme necessity.
The Foreign Marriages Act 1892 deals marriages valid 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.
There are a number of a 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 of domicile.