Recognition of Overseas marriages and marriages in the UK

Whether a marriage is recognised as valid is not really a question of immigration law, but of family law. What is the difference between immigration law and family law?

Immigration law

Immigration law operates at the level of the United Kingdom – comprising England, Wales, Scotland and Northern Ireland – with certain aspects extended to apply to the Channel Islands and the Isle of Man, and special arrangements covering the Republic of Ireland.

Family law

Family law, on the other hand varies: the rules of law in England and Wales are not necessarily the same in all respects as in Scotland or Northern Ireland. As a general guide, these principles will hold good, but if you are dealing with a case where the validity of a foreign marriage or divorce is in issue in Scotland or Northern Ireland, check the position in the relevant law.

The usual principle is that a marriage will be recognised in this country if it is valid in the country in which it took place, so marriages overseas can be relied on to give rights of entry to and stay in the UK. Customary marriages, where a couple wed in accordance with local or tribal customs rather than in accordance with civil proceedings sanctioned by the state, will generally be recognised in UK. This applies even where the marriage was conducted by proxy, in the absence of one of the spouses, if such an arrangement is permitted and recognised in the law of the country where it takes place.

In customary marriages:

  • It may be necessary to prove that what has taken place is in accordance with recognised custom if there is no regular certificate of marriage, and this may require evidence of the nature of any ceremony.
  • Evidence from an expert may occasionally be needed.
  • The couple will also need to submit evidence to show that they have met.

Changed domicile

The recognition of marriages under other legal systems generally depends on a person’s domicile. A marriage may not be recognised if one of the spouses is domiciled in a country (the UK, for instance) which would not permit the marriage to be recognised, whatever the country in which the wedding takes place. If either partner had been domiciled in a country that would not recognise the form of ceremony, it cannot be relied on for an immigration application. Nor will a marriage always be treated as valid if two people whose country would not permit the form of marriage go through a ceremony in a third country.

Overseas divorces

The rules on recognition of overseas divorces are broadly similar (see Baig v ECO (Pakistan) [2002] UKIAT 04229).

The main factor in determining whether a divorce is valid is whether it was obtained by legal ‘proceedings’, in which case it will be recognised in the UK if it is valid in the country where the divorce took place, so long as either spouse was habitually resident or domiciled in that country. Where there are no proceedings, a divorce will not be recognised in the UK if either of the spouses had been habitually resident in this country for the 12 months before it took place, even if it is considered valid in the other country (Family Law Act 1986).

Is the ‘bare talaq’ recognised in the UK?

Without a valid divorce, a person will not be free to marry again according to the laws of this country, whatever the position in the applicant’s country.

People who are subject to immigration control and want to marry in the UK face two concerns:

  1. the switching rules, governing who is allowed to stay in the UK as a spouse,
  2. the administrative requirements for marriage, regulating the steps to be taken.

On switching, when an application is made to the Home Office for Leave to Remain after a marriage in the UK, there are additional requirements (HC 395, Paragraph 284):

  • the applicant must have limited leave to remain in the UK
  • that leave must have been of more than six months (unless it was permission as a fiancĂ© or proposed civil partner)
  • he or she must not have remained in the UK in breach of the immigration laws
  • the marriage or civil partnership must not have taken place after a decision has been made by the Secretary of State to deport or a recommendation made by a sentencing court to deport the applicant.

Marriage in the UK

Crucially, these Rules bar applications to extend their stay from anyone who enters as a visitor. Marriage registrars have been under a legal duty since 1999 to check on a couple who apply to marry (IAA 1999, Section 24), and to report on their suspicions. Both parties usually have to attend to give their details, and to produce evidence of their full names, ages, nationality, and marital status (IAA 1999, Section 162). If the registrar has any reason to be suspicious of the couple’s motives for marriage, either from the information they are required to give or from their behaviour at the Registry Office, he must report full details of the couple to the Intelligence Section of the Immigration Service (Reporting of Suspicious Marriages etc Regulations 2000, Regulation 2).

Sham marriages typically involve EEA nationals in the UK, as well as British citizens. Sentences totalling 14 years were recently imposed on seven Czech citizens involved in arranging fake marriages to Nigerians, Pakistanis and a Syrian who all wanted to stay in the UK. Six of the gang committed bigamy by marrying up to three different people each.

Posted on: 28th March 2016, by : ICS Legal