When is a marriage not a marriage?

Whilst for most of us, the chance of a trip abroad this year may be slim, or previous plans may now be in disarray, for others the planning may just be beginning for a ceremony out with Scotland. Whilst the planning and the excitement for the big day is normally focused on the celebration, it is important to consider the legal status of your ceremony. This has been highlighted recently in the English courts with the case of X v Y [2020]

In this case, a couple had two ceremonies and when it came to their separation, it became apparent that both ceremonies were in fact legal ceremonies. There was no dispute over the first ceremony being a legal ceremony, and both parties agreed that this was the date of their marriage, so the implications of this were not as far reaching as they might have been. But how did this come about in the first place?

Whilst some ceremonies abroad may well satisfy the legal requirements of the country and therefore be registered legal marriages, in others they will not. In some countries, for example Germany, you must be in the country for a certain number of days prior to the ceremony for the marriage to be legal .As long as the specific legal formalities for the country where the couple are having their wedding ceremony are followed then there should not be an issue and their marriage will be recognised as valid upon return to Scotland. For many people this will simply not be possible if they are travelling for a destination wedding and accordingly, there will require to be a civil ceremony In the couples country of residence, either prior to or post the wedding ceremony, whereby this will be the legal ceremony.

This even applies in England, where only certain religious figures and venues are authorised for ceremonies, whereas in Scotland there is a wider scope.

So, if for example, you wish to get married at a venue, whether that be at home or abroad, which does not have the facility to help the couple create a legal marriage, then you would need to have the legal ceremony by way of a civil ceremony in a registry office.

In the case of X v Y, they had two ceremonies, but it transpired that both of these followed the legal requirements of the countries they were in when performed, one in Spain (albeit in secret) in 1993 and thereafter a second marriage ceremony in 1994 in England. When the couple came to separate, the date of the marriage in England was utilised but it became apparent thereafter that the previous ceremony in Spain was in  fact the correct date of the couples marriage. The second date could not be utilised as the first marriage was entirely valid, and therefore the second date, the wedding in England, was legally meaningless as although it did comply with the law and requirements in England, it was impossible for the couple to marry again when they were already legally married to one another. Again, while there wasn’t a dispute about this, the mistake was costly for the parties and as such, it is a cautionary tale for couples when considering their place of marriage. It could also have been more costly if parties had disputed the validity of either marriage, although again that was not a consideration in the case.

We would therefore be advising all clients considering their marriage ceremony and venue to make sure that their ceremony will be legally valid – considering and checking that the venue is licenced to conduct ceremonies, and satisfies the requirements of the law in the country they are getting married.  Couples should pay very close attention to what they must do prior to, during and after the ceremony (for example the requirement to be in a country for a  certain period prior to the ceremony, registering certain documents post the ceremony etc.)

It is also important to remember that not all religious marriages are legally binding marriages and as such, this is something that parties should consider and ensure they also enter into a civil ceremony to ensure that they have a legally valid marriage which thereafter will give them legal rights in respect of their marriage.

If you have any concerns at all as to whether your marriage is valid, or wish to discuss any matters in respect of your impending ceremony, please contact to discuss further on 0141 375 1222 or email .