Chapter 13 Annex 2 - Validity in the United Kingdom of polygamous marriages

Polygamous marriages celebrated on or after 1 August 1971
The Matrimonial Causes Act 1973 deals with those marriages celebrated on or after 1 August 1971.

The marriage is valid in the UK if the answer to the two following questions is ‘yes’:

1. Did both parties have the personal capacity under the law of his/her domicile to enter into the marriage? (NB: No person domiciled in any part of the UK has the capacity to enter into a polygamous marriage.)
2. Is the marriage valid under the laws of the country in which it was celebrated, i.e. did the form of the polygamous marriage ceremony comply with the requirements of the laws of that country?

ECOs should be in the best position to determine whether a particular marriage is valid under the laws of the country in which it was celebrated as the entry clearance application will normally be made in the same country. Guidance on determining a person’s domicile is contained in Annex 13.5

Polygamous marriages celebrated before 1 August 1971
The recognition of polygamous marriages celebrated before 1 August 1971 was a matter for common law. Nevertheless, similar considerations apply; consequently the same questions as in paragraphs (a) and (b) above must be answered.

However, if the marriage is not valid only because either party lacked the capacity by the laws of his/her domicile to contract it, there are two additional tests which should be applied.

1. did the parties have the capacity to contract the marriage under the laws of their intended matrimonial home?
2. was the marriage valid according to the law of a country with which the parties had a real and substantial connection?

If the answer to either of these tests is yes, then the marriage will be recognised as valid in the UK.

Potentially polygamous marriages
In 1982 the courts ruled that if the man is domiciled in any part of the UK, the Matrimonial Causes Act 1973 does not render invalid a marriage in a country where polygamous marriages are valid if the man has married only one wife. The reason given for this ruling was that where the man is domiciled in any part of the UK and the woman is domiciled in a country which allows polygamy, it is not in theory feasible for either partner subsequently to contract an actually polygamous marriage. Even before this ruling, it had been the practice to accept for immigration purposes a potentially polygamous marriage which was de facto monogamous (in that both partners were only married to each other).

Under the 1995 Private International Law Act marriages which are actually (de facto) monogamous but are celebrated in a country which permits polygamy are now regarded as valid. This is fully retrospective. All potentially polygamous marriages which are actually monogamous are, therefore, now valid under United Kingdom law. The marriage will, however, be deemed to be void by any subsequent marriage of or more of the parties or by annulment.

Where it is clear that the marriage is monogamous, all potentially polygamous spouses should now be issued with entry clearance endorsed to join husband/wife [name].

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