Just (not) married

What could be more romantic than a wedding ceremony on a distant tropical island? Many couples decide that they want to get married abroad. It comes as something of a shock to some couples that despite their investment in this idyllic romantic vision, they were never married at all.

Kate Moss and Pete Doherty hit the headlines earlier this year when they were said to have had some form of ceremony in Phuket, Thailand. The rumours were promptly denied, but this was a little reminiscent of the issues which hit the headlines between a certain Rolling Stone, Mick Jagger, and Jerry Hall.

Hall v Jagger

The first issue in the case of Jerry F Hall v Michael P Jagger [1999] Lawtel 13/08/99 was whether or not there was a ceremony which purported to be a ceremony of marriage. Connell J was presented with affidavit evidence on the part of Jerry Hall, the petitioner, including photographs. He found that it was clear that, on 21 November 1990, the couple had gone through an 'elaborate ceremony' in Bali witnessed by many people. The photographs showed the couple cutting a cake together and exchanging rings and the ceremony was conducted by a Hindu priest.

The couple referred to themselves as husband and wife. Connell J was satisfied that the ceremony had taken place and, moreover, that the petitioner believed that it had created a valid marriage. Whether or not the ceremony was recognised as a valid ceremony of marriage in that jurisdiction depended on its compliance with local law, namely Indonesia.

The High Court was presented with expert evidence from two specialists in the laws of South-east Asia. The relevant local statute, in force at the time of marriage, required the marriage to be registered but it never was. The experts were agreed on this point. Non-registration was, however, not necessarily fatal as long as there was an acknowledgement by the local community but this would have required both of the parties to have been Balinese Hindus. Connell J found that neither party had ever been a true member of the Hindu religion. A Decree of Nullity was granted on the basis that the couple's 'marriage' was null and void.

Strong evidence is needed to rebut the presumption of marriage. In Piers v Piers [1849] 2HL Cas 331, there had been a marriage settlement, a ceremony and cohabitation. The fact of marriage was not disputed, but it was contended that it had been illegal as the ceremony had taken place at a private residence in the Isle of Man with no special licence as required by the relevant Manx statute. Cottenham LJ, the then Lord Chancellor, held that the presumption of law in favour of the legality of a marriage was 'not to be lightly to be repelled'. Evidence to rebut it must be strong, distinct, satisfactory and conclusive. In Piers, the marriage was held to be valid and the grant of a special licence must be presumed.

Proof of certain matters is not necessary to the validity of marriages. It is not necessary in support of a marriage to give any proof of the residence of the parties in any parish in which the banns were published, ss 24 and 48 of the Marriage Act 1949. The Act also gives specific provisions in relation to marriages solemnised between individuals of the Jewish religion: s 54.

Proof of marriage

To bring any matrimonial proceedings, there must be proof of marriage. Rule 2.6(2), Family Proceedings Rules 1991 provides that: 'Unless otherwise directed on an application made ex-parte, a certificate of the marriage or civil partnership to which the cause relates shall be filed with the Petition.'

Section 65 of the Marriage Act 1949 provides that the Registrar General shall cause indexes of all certified copies of entries in marriage register books to be made and kept in the General Register Office. Certified copies of such entries are admissible in evidence pursuant to s 14 of the Evidence Act 1851.

When it comes to evidence in a marriage outside England and Wales, one must examine r 10.14 of the Family Proceedings Rules 1991. Rule 10.14(1) provides that the validity of such a marriage:

''¦in any family proceedings in which the existence and validity of the marriage is not disputed, may be proved by the evidence of one of the parties to the marriage itself and the production of a document purporting to be

(a) a marriage certificate or similar document issued under the law in force in that country; or

(b) a certified copy of an entry in the register of marriages kept under the law in force in that country.'

But what if such a document is not in English? Unless otherwise directed, it must be accompanied by a translation certified by a Notary Public or authenticated by affidavit: r 10.14(2).

This general approach does not preclude that within the Evidence (Foreign, Dominion and Colonial Documents) Act 1933. This provides that certain public records in specified Commonwealth countries are admissible evidence for certain purposes.

There are detailed provisions about proof of marriage in specific countries outside England and Wales. For Scotland, the requirements are found in the Registration of Births, Deaths and Marriages (Scotland) Act 1965. Certificates of marriage in Ireland are receivable in evidence in the English courts as this is also governed by the Evidence Act 1851.

As far as Church of England marriages in the Channel Islands are concerned, no further proof is required given that they form part of the Diocese of Winchester. Expert evidence of local law may be brought, failing that, a certificate of a marriage before a Registrar may be admitted under s 9 of the Civil Evidence Act 1995.

Although there are certain specified methods for proof of marriage in the Isle of Man, it is likely that r 10.14 of the Family Proceedings Rules 1991 could be applied. The position is similar for India and Pakistan.

The key to proof of foreign marriages is whether or not their existence and validity is disputed. If not, r 10.14 is applicable. However, to prove that such a certificate would be accepted in the relevant country to establish the validity of the marriage, the evidence of an expert in the local law is also necessary. Such expert evidence is admissible without the leave of the court. Even if a marriage was not valid when it took place, it can be validated by subsequent retrospective legislation. In Starkowski v Attorney-General [1953] 2 All ER 1272, HL, the couple went through a Roman Catholic marriage in Austria in May 1945. At the time, German marriage law required that a marriage could only be valid if contracted before the Civil Authorities. However, subsequent provision altered this. The principle applicable was that the validity of marriage, as regards formalities, was governed by the lex loci celebrationis (the law of the place in which the marriage was celebrated) and, therefore, although the marriage ceremony was originally invalid it became valid under subsequent Austrian law. A marriage which is valid by these lex loci principles is valid everywhere even though it is not the law of the domicile of the parties.

The Foreign Marriage Act 1947 establishes validity of marriages celebrated in any foreign territory by a British armed forces chaplain serving there or by a person authorised by the relevant Commanding Officer as long as one of the prospective spouses is a member of the armed forces serving there or a person deployed in a prescribed capacity.

Alfonso-Brown v Milwood

More recent than Hall v Jagger is Alfonso-Brown v Milwood [2006] EWHC 642; [2006] 2 FLR 265. The petitioner was from Ghana and claimed that the ceremony which had taken place there was in accordance with the customary law of the Ga people. No copy of the marriage certificate had ever been produced although the petitioner had referred to its existence in correspondence. The court directed that she should produce a video in her possession. The opening sequence of the video described it as showing the engagement of the parties. The ceremony had been conducted, almost throughout, in the Ga language which the petitioner spoke, but the respondent did not nor was there any evidence that he had had the benefit of any translation or interpreter. Singer J found that the petitioner had known throughout that this was not a marriage. Although neither of the parties participated in the ceremony until the final stage, that stage of the video showed the man placing a ring on the woman's finger. Not only had the man lacked the necessary intention at the time of the marriage, but so had the woman. None of the man's actions during the ceremony were unequivocally referable to a marriage. They were, in contrast, more a part of an exuberant traditional engagement. The woman had petitioned on the basis that the ceremony had been carried out while he was still married to his first wife. Singer J refused the decree of nullity sought.

Particularly at this time of year, romance is in the air. Engaged couples naturally want to celebrate their nuptials in style, often on distant shores with a trip of a lifetime. The last thing any love-struck couple would ever want is any uncertainty which may undermine the entire validity of their status. A good investment, along with a guidebook and a little bit of research would ensure the knot has been well and truly tied.

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