FREE CHAPTER from ‘A Practical Guide to International Issues for Scottish Family Lawyers’ by Susie Mountain, Donna McKay, Ken MacDonald


Formal requirements: marriage

Preparing for a “wedcation” requires more than simply packing a suitcase. The requirements for British nationals who wish to marry in other jurisdictions differ significantly from country to country. A breakdown by each individual country can be found on the website of the Foreign and Commonwealth Office[1]. Consulates or Embassies can also provide the relevant information. The main thing to bear in mind is that in many countries it is necessary to provide a “certificate of no impediment” prior to marrying. These can be obtained from most Registry offices and are valid for only three months from the date of issue. Translations of any legal documents may also be required, so clients who are considering entering into foreign nuptials will need to be mindful of timescales.

As to whether a marriage entered into overseas will be legally recognised in Scotland, the relevant legislation is section 38 of the Family Law (Scotland) Act 2006, which is in the following terms:

Validity of marriages

(1)   Subject to the Foreign Marriage Act 1892 (c. 23), the question whether a marriage is formally valid shall be determined by the law of the place where the marriage was celebrated.

(2)   The question whether a person who enters into a marriage—

(a)   had capacity; or

(b)   consented,

to enter into it shall, subject to subsections (3) and (4) and to section 50 of the Family Law Act 1986 (c. 55) (non-recognition of divorce or annulment in another jurisdiction no bar to remarriage), be determined by the law of the place where, immediately before the marriage, that person was domiciled.

(3)   If a marriage entered into in Scotland is void under a rule of Scots internal law, then, notwithstanding subsection (2), that rule shall prevail over any law under which the marriage would be valid.

(4)   The capacity of the person to enter into the marriage shall not be determined under the law of the place where, immediately before the marriage, the person was domiciled in so far as it would be contrary to public policy in Scotland for such capacity to be so determined.

(5)   If the law of the place in which a person is domiciled requires a person under a certain age to obtain parental consent before entering into a marriage, that requirement shall not be taken to affect the capacity of a person to enter into a marriage in Scotland unless failure to obtain such consent would render invalid any marriage that the person purported to enter into in any form anywhere in the world.”

It is therefore important that parties to overseas marriages check the following:

  1. Did the marriage take place in accordance with the law and customs of the country in which the parties were married – i.e. was a legal and binding marriage created?
  2. Is the marriage contrary to Scottish public policy?
  3. Do they have their marriage certificate? Clients would be well advised to ensure that they have their marriage certificate (and ideally, also a translated version where necessary). In the event of a future separation, obtaining certificates from overseas can create long delays.

Registration of marriage ceremony conducted overseas

Clients often assume that their marriage needs to be formally registered in Scotland in order to be legally recognised on Scottish soil. Marriages conducted overseas cannot, in fact, be registered in Scotland.

Lex loci celebrationis

What happens if there is a question mark over where the marriage took place? This was the case in A v K[2]. The judgment in that case is well worth a read, as it provides a useful overview of the key case law. The pursuer in A v K was a UK national of Pakistani heritage. At the age of twenty she had entered into a marriage with a national of Pakistan who she had met online. She had not met him in person at any time before, during or after the marriage ceremony. The marriage took place by telephone. During the marriage ceremony, which was conducted by a priest, the pursuer was in Scotland. Her fiancé was in Pakistan. After the ceremony, a marriage certificate was sent to the pursuer, which she duly signed and send to the Pakistan Consulate in Glasgow. The action for declarator of nullity was not defended. Notwithstanding that, after requesting further information, Lord Stewart was not persuaded that the marriage took place partly in Scotland, but instead found that it took place wholly in Pakistan. It was held that, as the telephone ceremony created a valid contract of marriage under the law of Pakistan, the marriage ought to be considered valid by the Scottish court.

Civil partnerships

As with marriage, the requirements for parties seeking to enter into a civil partnership overseas are helpfully spelled out by the FCO website.

So, for example, the website states that same or mixed sex couples can enter into a civil partnership in Austria after first providing a certificate of no impediment. This may need to be an exchanged for a similar certificate with validity in Austria. It may also need to be legalised and translated. By contrast, in Azerbaijan it is not possible to enter into a civil partnership and therefore any purported civil partnership stated to have taken in place in Azerbaijan would not be accepted as valid in Scotland.

The applicable legislation for civil partnerships entered into overseas is section 215 of the Civil Partnership Act 2004, the general rule of which is as follows:

(1) Two people are to be treated as having formed a civil partnership as a result of having registered an overseas relationship if, under the relevant law, they—

(a)   had capacity to enter into the relationship, and

(b)   met all requirements necessary to ensure the formal validity of the relationship.

The “relevant law” in this regard is the law of the country in which the civil partnership was entered into.


One useful quirk of the provisions for cohabitants set out within the Family Law (Scotland) Act 2006 is that there is no stipulation that the cohabitation must have taken place in Scotland in order for a claim to be made in terms of section 28 (claims on separation) or section 29 (claims on death). There is therefore no requirement to have “formal recognition” of a cohabitation which took place overseas, although other provisions regarding domicile may apply.

Clients should be aware, however, that few countries worldwide have specific protections in place for those in cohabiting relationships. Although it is likely to be possible to make a claim in Scotland in the event of either party to the relationship being Scottish domiciled, there may not be the option to make a claim in any other jurisdiction. Some countries require a minimum period of cohabitation, or for the cohabitation to be formally registered in that country, before any claim can be made. If clients are seeking advice prior to a move abroad, it is important, from a risk management perspective, to canvass these issues with them.



[2]   A v K (2011) SLT 873