Is Your Marriage Valid?

If you are applying for entry clearance or leave to remain as a spouse under Appendix FM you will, naturally, need to be married to your partner.

The question of whether your marriage is valid should normally be a straightforward one, however, past experience suggests that this is not always the case and applicants should check this point before proceeding with their application.

For your marriage to be accepted by the UKVI under Appendix FM the caseworker must be satisfied that it is valid and that you and your spouse were free to marry.

The question of whether your marriage is valid should normally be a straightforward one, however, past experience suggests that this is not always the case…

The UKVI states that, ordinarily, a marriage that takes place in the UK will be valid so long as it is monogamous and carried out in accordance with the requirements of the Marriage Acts 1949-1994. Marriages in the UK will need to be evidenced by a marriage certificate as follows:

1.3 A claim to have been married in the United Kingdom must be supported by a marriage certificate issued by a Superintendent Registrar or an authorised minister of religion.

1.4 A marriage certificate issued by a Superintendent Registrar or a duly authorised minister of religion in the United Kingdom may usually be accepted for nationality purposes.

If you are married in the UK by a Registrar or an authorised minister of religion and have a certificate as outlined above, your marriage should be recognised by the UKVI, although be aware that some religious marriages in the UK are not legally recognised

As a general rule, if you marry abroad, your marriage will be recognised as valid by the UKVI if it is legally recognised in the country where it was conducted:

The marriage ceremony must be recognised as a valid form of marriage by the law of the place of celebration.

The UKVI has set out guidance where it will refer marriages conducted abroad for further enquiries in the following circumstances:

the marriage was a church marriage in a Muslim country; or

it was a religious or a customary marriage which has not been registered with the civil authorities of the country in which it was celebrated; or

either of the partners was clearly not domiciled in the country where the marriage took place and, under the law of the country of domicile, the type of marriage entered into would not be valid; or

a previous marriage was ended by a divorce obtained in a different country from the one where the marriage, which it purports to dissolve, was celebrated, and neither spouse was:

i. habitually resident in the country where the divorce was obtained; or

ii. a national of the country where the divorce was obtained; or

iii. domiciled in the country where the divorce was obtained (see DIVORCE).(For this purpose each State of the United States of America is regarded as a separate country); or

iv. it is a “common law” marriage

There are a whole host of different issues and pitfalls relating to this subject such as: marriages of convenience, marriages by proxy, polygamy, etc. However, we’re going to look at some real-life case studies that raised three particular questions regarding the validity of the marriage.

Case Study 1: Marriage at sea

The first case involved an Australian national who married his British sponsor aboard a cruise ship in the Atlantic Ocean. At the time of their marriage, the cruise ship was within the jurisdiction of Bermuda. The couple were married by the ship’s Captain and were issued with a marriage certificate complete with the official logo of the authorities of Bermuda. Our first task was to check whether such a marriage would be recognised by the UKVI for the applicant’s spouse visa application from Australia under Appendix FM.

The UKVI guidance we consulted on this issue stated the following:

3.1 Marriage on board UK registered ships 

Marriages on board UK-registered ships have been recognised in the past. However the current view is that, since marriages must be solemnised in readily identifiable premises (e.g. so that the public would have access to witness the ceremony and if necessary, object to the marriage) a marriage at sea on a UK-registered ship is not recognisable under UK law except in very limited circumstances – such as when it is impracticable for the parties to wait until the ship has reached port.

3.2 Marriage onboard non-UK registered ships 

Where a marriage is performed on a ship which is registered in a jurisdiction whose law permits marriages at sea then the marriage will be valid.

In this case the applicant had to make enquiries to confirm the name of the cruise ship he and his partner married on. Once we verified that the ship in question was not UK-registered we were satisfied, following the above guidance, that their marriage should be considered valid by the UKVI. This applicant successfully obtained his spouse visa when he later applied from Australia. Had the cruise ship he and his partner married on been UK-registered the outcome might have been very different.

Case Study 2: Marriage at a church in an Islamic country

This case concerned a British national who married his Filipino spouse at a church in the United Arab Emirates (UAE). Before we could proceed with the spouse visa application, we had to check whether this marriage would be considered valid by the UKVI.

The marriage ceremony must be recognised as a valid form of marriage by the law of the place of celebration.

The UKVI guidance states that marriages at a church in a Muslim country may be referred for further enquiries, but also has this to say:

2.2 All civil marriages, and all religious marriages which have been registered with the civil authority of the country in which they are celebrated may be accepted

Fortunately for this applicant, her marriage certificate issued by the church had been registered with the UAE authorities which endorsed the document with their official seal. She also had her certificate registered with and endorsed by her Philippines Embassy.

We were satisfied that this marriage would be considered valid by the UAE given the above guidance and this applicant was subsequently successful with her spouse visa application. Again, had her marriage certificate not been registered with the authorities in the UAE the outcome might have been different.

Case Study 3: Talaq divorce and evidence of divorce

When you marry you must be able to demonstrate that you are free to marry – i.e. that you have never previously married, or that any previous marriages have ended in divorce or dissolution. If either party has been married before, you must provide the decree absolute (or non-UK equivalent) as evidence. What is the position, however, if no such document is available?

Take for example the talaq divorce in Islam. The talaq is the traditional Muslim divorce process and the triple talaq is a traditional Islamic law, in which the husband simply states, “I divorce you” 3 times. This has the effect of dissolving the marriage instantly.

I was once instructed by a British national to assist with a spouse visa for his partner, an Indian national. They had married in India and their marriage was conducted lawfully by the Indian authorities. His Indian partner had previously married, however, this marriage ended with a talaq divorce. This all took place prior to 2017 when India’s top court banned Islamic instant divorce and ruled the practise unconstitutional. Although there was no official document confirming divorce owing to the verbal nature of talaq, the applicant did produce an affidavit from her ex-spouse confirming that their marriage ended through a talaq divorce. As the marriage between the applicant and her British partner was lawfully recognised by the Indian authorities, it was presumed that it would also be accepted as valid by the UKVI.

Unfortunately, this application was refused with the UKVI caseworker asserting that the marriage between the applicant and her British sponsor in India was not valid as they did not believe that the applicant was free to marry. This decision was based on the belief that the talaq divorce had no lawful effect.

The applicant appealed the decision with the Tribunal finding in her favour. The Immigration Judge found that as the talaq divorce was recognised in India at that time, and as the Indian authorities had deemed her free to marry when she later wed her British partner, then her marriage should be valid for the purposes of her application under Appendix FM. Additionally, the appellant was also found to have provided reasonable evidence of the talaq divorce.

These case studies provide a brief insight into the hidden complexities and considerations behind some of the Appendix FM Partner visa applications we regularly handle. I have often found that, with the stakes so high with such applications, it is risky to assume that certain requirements are met on face value.

Written by
John Cahill
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