Report No. 23

5. English Act.-

(1) The (English) Foreign Marriage Act, 1892, constitutes the culmination of a series of Acts which were passed earlier to "avoid the doubts and uncertainties which sometimes arose when British subjects married"1 in foreign countries. It provides for a form of marriage which may be availed of where one of the parties is a British subject. Provided that the requirements of the statute are complied with, the marriage will be recognised in English courts as valid as though celebrated in England,2 whatever view foreign courts may take of its validity.

(2) It must be emphasised that the effect of solemnisation under the English Act is only to ensure the formal validity of the marriage in English courts, though certain provisions are made in the Act to ensure maximum possible compliance with principles of conflict of laws. Thus, under section 19, the marriage officer may refuse solemnisation of a marriage which would be inconsistent with International Law or the comity of nations.3 Besides, power is given under section 21 of the Act to the Queen-in-Council to make regulations inter alia prohibiting or restricting the exercise by marriage officers of their powers under the Act in cases where the exercise of those powers appears to Her Majesty to be inconsistent with International law or the comity of nations, or in places where sufficient facilities appear to Her Majesty to exist, without the exercise of those powers, for the solemnisation of marriages to which a British subject is a party.

(3) Pursuant to this, it is provided under the English Act that the marriage officer should refuse solemnisation in a foreign country where a marriage under the local law of the foreign country is valid under English Law, unless he is satisfied that (a) both the parties are British subjects, or (b) if only one of the parties is a British subject, the other is not a subject or citizen of the foreign country, or (c) if one of the parties is a British subject and the other a citizen or subject of the foreign country, that sufficient facilities do not exist for the solemnisation of the marriage in the foreign country in accordance with the law of that country, or (d) if the man about to be married is a British subject and the woman a subject or citizen of the foreign country, that no objection will be taken by the authorities of the country to the solemnisation of the marriage under the Act.4

Further, it has been laid down that where it appears to the marriage officer that the woman about to be married is a British subject and the man a foreigner, he must be satisfied (a) that the marriage will be recognised by the law of the country to which the foreigner belongs, or (b) that some other ceremony in addition to that under the Act, has taken place, or is about to take place, and that such other ceremony is recognised by the law of the country to which the foreigner belongs, or (c) that the leave of the Secretary of State has been obtained.5

(4) The Act provides for the registration of marriages abroad to which a British subject is a party. Such registration does not confer any validity which the marriage does not possess otherwise,6 but is merely of evidentiary value.

(5) The Act deals with marriages between the "lines" (armed forces), but this is not of any interest to us.

(6) Lastly, it may be mentioned that the Act does not affect in any way the validity of marriages solemnised otherwise than under the Act,7 nor does it deal with matrimonial causes.

1. Graveson Conflict of Laws, 3rd., Edn., p. 147.

2. See section 1 of the English Act.

3. A right of appeal to the Secretary of State against an order refusing to solemnise a marriage on this ground is presided under section 19, proviso.

4. The Foreign Marriages Order in Council, 1913. S.R. & 0. 1913, No. 1270, Article 1, see Halsbury Statutory Instruments, Vol. 10, p. 172.

5. The Foreign Marriages Order in Council, 1913, op. cit., Article 2.

6. See section 18 of the English Act.

7. Section 23 of the English Act.