Recognition of a foreign marriage: Obviously many couples living in this country went through a marriage ‘procedure’ (as I will call it) in a foreign country. Of course, that does not necessarily mean that they are recognised as being married by the law of England and Wales.
Declaration as to the marital status
It is usually quite obvious whether a foreign marriage will be recognised here, but sometimes it is not so clear. In such cases, it may be necessary to apply to the court here for a ‘declaration as to marital status’.
This is what occurred in the recent High Court case MN v NA.
Before I examine the case I should make clear one unusual aspect of it. The parties were described as ‘the applicant’ and ‘the respondent’. This does not mean, however, that they were on opposite sides, one seeking a declaration that their ‘marriage’ was valid, and the other claiming that it was not a valid marriage. There was no issue between the parties here – they believed themselves to be husband and wife, are happily ‘married’, and simply wished to clarify their marital status in this country (they were both happy to undergo a further civil ceremony of marriage in a local register office, but that option was not open to them, as the registrar took the view that they may already be married to one another).
Okay, the relevant background was as follows.
The families of both parties were of Somali origin. The ‘husband’ is a Dutch national who was born in Holland and has lived in the United Kingdom since 2001. The ‘wife’ was born and raised in Somaliland and was living there prior to the ‘marriage’. The couple met in Somaliland in 2012 when the ‘husband’ was visiting and, after a period of courtship, they agreed to marry. On the 7th of March 2013, they attended a religious ceremony of marriage in Somaliland. Later that day they held what they have referred to as a “marriage wedding”, which was attended by many family and friends. Some ten days later they attended the local district court, where their marriage was validated and a formal marriage certificate issued. They have lived together as husband and wife ever since and, in January 2016, the ‘wife’ gave birth to their daughter.
Two fundamental questions
As explained by Mrs Justice Roberts, hearing the case, there were two fundamental questions which needed to be answered before the court could grant the application:
Are the parties validly married? If the answer to that question was no, the declaration could not be granted. If the answer was yes, the court must then move onto the second question:
Is the marriage entitled to recognition in England and Wales? If the answer to that question was no, the declaration could not be granted. If the answer was yes, the declaration could, and should, be granted.
As to the first question, Mrs Justice Roberts had “no difficulty” in finding from the evidence (including the evidence of an expert in Somali law) that the parties were indeed validly married according to the law of Somaliland.
She, therefore, turned to the second question. As she explained, in the normal course of events a marriage which is valid according to the law of the place where it was celebrated or performed will be entitled to recognition as a valid marriage under English law. The difficulty here, however, was that at the time this marriage was celebrated, the Republic of Somaliland was not recognised by the United Kingdom as a State.
The judgment then went into a number of legal and technical details that I do not need to explain here. Suffice to say that Mrs Justice Roberts, having found that the courts of this country can recognise the laws or acts of a body which is in effective control of a territory even though it has not been recognised by our Government, could see no good reason to refuse recognition of the marriage
Accordingly, she granted the declaration: that the parties were validly married to one another – their marriage was valid and subsisting as at the date of their application to the court, and it was entitled to formal recognition according to the law of England & Wales.
The full judgment can be found here.