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Foreign marriages and divorce

Why do I need to be cautious about admitting residency or domicile?

Each has tax implications under English tax law including liabilities for income tax, capital gains tax and/or inheritance tax.­ They can have tax and nationality implications under the laws of other countries.­ Great care is needed.­ Often tax advice as well as family law advice should be taken before admitting either residency or domicile.

Why is recognition of my foreign divorce important?

It can affect issues such as ability to remarry, children’s status and legitimacy, nationality, immigration, tax, succession, divorce claims.­ If the divorce is not recognised in England, a person will be treated as still married and can seek a divorce here and ancillary financial claims.

I have been divorced elsewhere in the United Kingdom.­ Will England recognise it?

A divorce granted by a civil court in another part of the United Kingdom will be automatically recognised throughout the UK.­ Any other form of divorce e.g. via a Sharia Council, is not recognised.

I have been divorced outside the European Union.­ Will England recognise it?

This can be more complicated.­ Recognition depends on whether the divorce was the subject of “proceedings” or “other than by means of proceedings”.

If a foreign divorce granted by means of “proceedings” was valid in the country in which it was obtained and at that time either spouse was resident or domiciled or a national of that country, and both spouses had notice of the proceedings, the foreign divorce will almost always be recognised in England. ­Apart from courts, “proceedings” also includes non-court proceedings but this requires a degree of state official or similar involvement.­ It may not include Sharia councils and similar.­ Some “religious” divorces abroad are not considered to be “proceedings”.

Recognition is more uncertain when the divorce is granted abroad other than by means of proceedings.­ The requirements are more vigorous especially notice to the respondent spouse.­ Neither spouse can be habitually resident in the United Kingdom for a year preceding the divorce and each must be domiciled either where the divorce occurred or in a country which recognises the form of divorce.­ This category includes certain religious divorces such as Jewish gets and Islamic Talaqs.­ Legal advice should always be taken, often in conjunction with advice from a lawyer in the country where the divorce occurred.­ Certain countries with religious divorces have a degree of formality and opportunity for both spouses to take part in the religious divorce.­ England tends to recognise such divorces.­ Bare talaqs without any official involvement are rarely recognised.

However it is fundamental that the divorce should have started and finished in the foreign country.­ England will not recognise a foreign divorce in which, for instance, any part of the foreign divorce takes place in England.­ They are known as “transnational divorces”.­ This includes reported cases such as a Jewish get which was “written” in London and sent to Jerusalem or where the Talaq was pronounced in Bolton and sent to the wife in Pakistan.­ Neither were allowed as valid foreign divorces.

A foreign divorce might not be recognised by reasons of English public policy.­ There are a number of reported cases in which there has been refusal to recognise but in fact it is rare in most conventional cases.­ The courts are anxious to avoid the concept of “limping marriages” where a divorce is recognised in many countries in the world but not recognised in others, so the spouses are left partially divorced and partially still married!

I am worried that I may be compelled into a forced marriage.­ What can I do?

The English court now has considerable powers to protect the victim or potential victim of a forced marriage, whether in England or abroad.­ This includes powers of arrest.­ Anyone can apply for these injunctions; not just the victim if for example the victim is unable to do so.­ Special procedures apply to help the victim give evidence in court.­ The court has the power to set aside and grant a decree of nullity of a forced marriage on the basis of duress.­ The UK government has set up a Forced Marriage Unit with an excellent website, a helpline, guidance and links.

I was married abroad.­ Will my marriage be recognised in England?

Almost certainly.­ English public policy is to strive to recognise genuine foreign marriages and foreign divorces wherever possible.­ It is irrelevant whether the foreign marriage would not be possible here or not be allowed here.

On what does the recognition of my foreign marriage depend?

The English law looks at “form” and “capacity”.­ The marriage must comply with the formalities of the law of the country where it occurred, even if very different from England.­ This includes matters such as giving notice, the place it occurred, relevant witnesses etc.­ The couple getting married must have the “legal capacity” to get married by the law of the country of their domicile immediately before the marriage.­ Capacity covers matters such as age, gender, consent, being unmarried etc.­ Difficulties and confusions can occur as some countries have different formal requirements for different religious and ethnic groups, which English courts have sometimes considered as matters of capacity.­ The instances of refusal of recognition are rare.

In a few exceptional cases, England refuses recognition due to public policy.­ This is often where one spouse has deceived the other or both have deceived state authorities.

How do I show evidence of my marriage abroad?

The original marriage certificate will often be required, rather than photocopies.­ If it is not in English, a certified translation will be required.­ Sometimes this may have to be provided by a court approved translator or by a lawyer known as a public notary.­ The organisation requiring this greater formality of translation will explain what is needed.­ In a few exceptional or disputed cases, it may be necessary to apply to the High Court for an order to decide recognition of a foreign marriage.

I was married abroad in a civil registry office and then in a religious ceremony.­ Which one counts?

This is a matter for local legal advice (i.e. in the country where it took place) as it varies from country to country.­ Most often it is the civil registry wedding which counts.

I was married in a foreign embassy.­ Which law applies?­ The country we were in or the law of the country of the embassy?

Almost always it is the law of the country in which the embassy is situated.

What are some of the things I should consider when getting married abroad at a holiday destination?

Marriages in Paradise are wonderful.­ However some simple precautionary steps should be taken.­ Although it is normal to rely on the holiday company arranging the wedding abroad, it may be useful to double-check the procedure is correct according to local formalities.­ Are any statutory matrimonial property regimes (i.e. who owns what) imposed as a consequence of weddings in that country?­ Are there any particular requirements for the wedding dependent upon the religion of each person?­ Some countries have different formalities according to religious adherence.­ Finally, obtain several certified copies of the marriage certificate before you leave the resort as they may be difficult to obtain once you are back in England.

Does England recognise my polygamous marriage?

It may do, presuming it occurred outside the United Kingdom and dependent upon a number of factors.­ The wedding must have been in accordance with the formalities of local law.­ If it is an actual polygamous marriage (not a potentially polygamous marriage which is one where one spouse may later take another spouse), neither can have been domiciled in England at the time of the marriage.­ English public policy is to recognise genuine polygamous marriages entered into abroad in a country which permits polygamy.­ There are technical rules on recognition.­ Bigamy, even accepted by the other spouse, is not polygamy.

Predictably, the welfare benefit agencies quickly acknowledge polygamous marriages if it means they can pass on responsibility for support to a spouse.­ There can be complicated issues of succession and legitimacy.­ Specialist advice is essential.­ Nationality and tax rules generally apply as to a monogamous marriage.

Can I divorce my husband, in a polygamous marriage, if he takes another wife?

No.­ However if the marriage was not actually polygamous at the date of the wedding ceremony, and only potentially polygamous according to the law of the country where you were married, and your husband had agreed not to take another wife, then it might be possible to divorce on the basis of an unreasonable behaviour petition.

I have read that my status may depend on my domicile.­ What is domicile?

This is the country with which one has, or regards oneself as having, the closest long-term connection.­ It is not necessarily the country in which one is living or working in the short or medium term.­ For many who are living or working abroad, they may retain a long term intention to return to their home country or to another country, which is therefore their domicile.

Everyone has a domicile at birth, often the country of birth or the country of domicile of the parents.­ This is known as a domicile of origin.­ At 18, a person can acquire a domicile of choice, as a new country is taken as the long term closest connection country.­ If a person leaves this country and the long term connection with it, the domicile of choice in that country is lost and the domicile of origin/birth reverts unless and until a new domicile of choice is created. You can only have one domicile at any one time.­ You cannot have two domiciles.­ You cannot have no domicile - the domicile of origin then automatically reverts.­ The definition of domicile is sometimes different abroad.

Evidence of domicile is found in many ways, mostly connected with longer term allegiance and commitment.­ Some people spend many years working in a country yet retain a domicile in their home country.­ Leaving a spouse when abroad and returning home or returning home after the death of a spouse abroad is often evidence of abandoning that domicile and country and adopting or reacquiring domicile of choice or origin.­ Advice should always be taken about domicile issues of oneself and other family members.

What is residency?

Unhelpfully it is rarely defined by law makers.­ In many instances, it is where a person has their primary home.­ Sometimes the law requires a minimum period of residence.­ The law also confusingly refers to “habitual residence” and “simple residence” - often referred to just as “residence”.

Habitual residence is where a person has a settled intent, a centre of their interests and there is a habitual element to their residency.­ Habitual residence can be ended immediately.­ A new habitual residence can be created quite quickly although it also often requires an accompanying period of simple residency or other strong connections with the new country.­ A person cannot have two habitual residences at the same time.

In contrast, simple residency is the mere fact of residency in a location. A person can have two residences at the same time in different countries i.e. when they spend a good part of each year in different countries.­ A person can be resident even under a deportation order or in other very short-term residency and/or immigration status circumstances


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