When is a marriage not a marriage?

An odd question on the face of it but one of increasing importance in a world where more and more people live “international” lives, crossing jurisdictions for business and pleasure and residing in different countries.

A recent case in the English Courts brought this issue once again into focus. This featured parties who were both Moroccan by descent, the wife born in England and always residing here, the husband born in Morocco and moving to England when he was 7 with dual citizenship.

The parties went through a Moroccan civil ceremony in the Moroccan Consulate in London. There were witnesses and a formal marriage certificate, two wedding parties and a honeymoon. The ceremony was conducted by a notary and the relationship lasted some 7 years, the parties having a son and separating in 2009 – although staying under the same roof.

The wife sought to issue Divorce proceedings in England but the husband, just over a month earlier and without the wife’s knowledge, had petitioned for Divorce in Morocco.

A Divorce was then finalised in Morocco with minimal financial provision for the wife. The wife’s application before the Court in England, therefore, was for financial provision following the foreign divorce.

For the purposes of marriage, the Consulate constituted English soil and the “marriage” therefore took place in England and was governed by English law. It was perfectly open to the husband to petition for Divorce in Morocco and there is legislation that permits parties to issue applications for financial relief in England following overseas divorce. In order to do so, however, there must have been a “marriage” capable of recognition in England and this became the issue for the Court.

The husband argued that her application must fail because a) there was no marriage recognised in England and b) the Moroccan divorce should not be recognised in England (I’m not dealing with (b) in this piece)

The Judge considered the ceremony, which was wholly non-compliant with the Marriage Act, and the length of the parties’ cohabitation. He found that the ceremony did not give rise to a valid marriage and that the fact that the parties had cohabited together for some 7 years was not enough to give rise to a presumption of a valid marriage and he declared it a “non-marriage”.

But…could this nevertheless amount to a “marriage” for the purposes of applying for financial relief (the wife’s application)? The Court held that despite both parties intending the marriage to have legal consequences there needed to be a valid marriage, or at the least a void marriage (i.e. one that is capable of founding a decree of nullity) for such an application to be made.

And so, the wife could make no financial claim against her ex-husband in England and she was stuck with the “very modest” financial provision awarded to her by the Moroccan Courts, the English courts would not interfere with the flat held in the husband’s sole name (net value of £300,000).

The lessons are there to be learnt….marriage ceremonies should comply with the provisions of the marriage act – pay careful attention to the venue and the provisions as regards who undertakes the ceremony – if no valid/void marriage is created then parties may be left in difficulty on separation, particularly when it comes to dealing with financial affairs.

For richer, For poorer?

For many couples in the UK, the idea of discussing a pre-nuptial agreement before their marriage is unromantic and many consider that it is tantamount to saying that the marriage is bound to fail.

In the U.S. however there are no such qualms and in many European countries couples must choose under which property regime they intend to marry and are, therefore, used to considering future asset division at the point of marriage.

With people in the UK now marrying later, and therefore being more likely to have their own properties, investments etc., pre-nuptial agreements are becoming more common.

Pre-nuptial agreements are still not legally binding on UK courts but recent case law suggests that the Courts will take into account any pre-nuptial agreement when determining the division of assets on divorce.

If couples freely enter a pre-marital agreement with a full appreciation of its implications then the Court will look to uphold those agreements, unless it would be unfair to do so. There are no absolute rules or steps that must be taken but there are certain factors that will come into play, in the event that the agreement is ever contested, such as the provision of legal advice and whether there has been financial disclosure between the parties.

In addition, for those couples who have married abroad under different property regimes, entered pre-nuptial agreements abroad or who are likely to live in different jurisdictions during the course of their marriage, specialist advice will be required as regards the status or security of those agreements, should divorce proceedings take place in the UK.

Whether a party wishes to argue against being bound by the terms of a pre-nuptial agreement or wishes to suggest that an agreement should be upheld, expert advice will be needed.