Post By: Priyanka Bagri
The Indian ethnic group is one of the largest in England and Wales. Many individuals married in India or under Indian law before relocating to the UK.
When relationships break down, questions about how Indian marriages and divorces are treated under English law can feel overwhelming. This is especially true where couples have property, assets, or family ties across both countries.
This article provides general guidance on how the law in England and Wales treats Indian marriages and divorces. It is not legal advice, and anyone in this situation may find it helpful to speak with a solicitor who specialises in cross-border family law.
Recognition of Indian Marriages in England and Wales
Under English law, a marriage conducted overseas is generally recognised if it was valid under the law of the country where it took place. This principle was confirmed in McCabe v McCabe [1994] 1 FLR 410.
Hindu, Sikh, Muslim, Christian, and civil marriages registered in India are typically recognised in the UK. The marriage must have been legally valid under the relevant Indian legislation, such as the Hindu Marriage Act 1955 or the Special Marriage Act 1954.
However, a religious ceremony that was not registered under Indian law may not be recognised. In England and Wales, unregistered religious ceremonies can be treated as non-qualifying ceremonies, which could leave one or both parties without the legal protections of a valid marriage.
Practical tip: If you married in India, keep a copy of your marriage certificate and any registration documents. These may be needed if you later apply for a divorce or financial order in the UK.
Recognition of Indian Divorces in the UK
Recognition of an Indian divorce depends on how it was obtained. The Family Law Act 1986 (Part II) sets out the rules.
Judicial divorces: A divorce granted by an Indian court is generally recognised in England and Wales, provided that one or both parties were domiciled or habitually resident in India at the time of the proceedings.
Non-judicial divorces: This is where things become more complicated. Under Muslim personal law in India, a husband may pronounce a talaq (unilateral divorce). The recognition of such divorces in England and Wales has been the subject of significant case law.
The recognition of such divorces has been the subject of case law, including Berkovits v Grinberg [1995] Fam 142 and Akhter v Khan [2020] UKSC 40.
Where a non-judicial divorce is not recognised, the parties may still be considered married under English law. This can have significant consequences for finances and property.
Practical tip: If you obtained a divorce in India and now live in the UK, it can be worth checking whether that divorce is recognised here. This is particularly important before remarrying.
Common Issues Faced by Indian Couples in the UK
Cross-border divorce can raise a number of practical challenges.
Property and assets in both countries: Many couples own property in India alongside assets in the UK. English courts can make financial orders in relation to overseas assets, but enforcing those orders in India can be difficult.
Competing proceedings: It is not uncommon for one spouse to file for divorce in India while the other files in the UK. English courts will consider factors such as habitual residence and domicile when determining jurisdiction under the Domicile and Matrimonial Proceedings Act 1973.
Inheritance and succession: Indian succession law differs from English law. For example, the Hindu Succession Act 1956 governs inheritance rights of Hindu families in India. A divorce in the UK does not automatically affect property rights under Indian law.
Pensions and financial settlements: Where one or both spouses have pension entitlements or investments in the UK, a financial settlement may be needed. English courts can make orders for lump sum payments, property adjustment, and pension sharing.
When UK Court Applications May Be Needed for Children
Where children are involved, matters can become more sensitive. If parents cannot agree on arrangements, either parent can apply to the court for a child arrangements order.
Before making an application, parents are generally expected to attend a Mediation Information and Assessment Meeting (MIAM). The application is made using the C100 Form, which is submitted to the family court.
In cross-border cases, there may be concerns about a child being taken to India without consent. India is not currently a signatory to the Hague Convention on International Child Abduction. This means that if a child is wrongfully removed to India, the legal options for return may be more limited.
Practical tip: If you are worried about your child being taken abroad, it may be possible to apply for a prohibited steps order or to ask for the child’s passport to be held by a solicitor.
The Role of Mediation as an Alternative to Court
Going to court can be time-consuming and expensive. For many couples, family mediation offers a way to resolve disputes without lengthy court proceedings.
Mediation involves an independent, trained mediator who helps both parties discuss their issues and work towards an agreement. It can cover finances, property, and arrangements for children. Any agreement reached is not legally binding until it is formalised by a solicitor or approved by the court.
Mediation can be particularly useful in cross-border cases, allowing both parties to consider the practical realities of having assets and family in two countries. However, mediation is not suitable for every situation. Where there are safeguarding concerns or domestic abuse, court intervention may be more appropriate.
Key Takeaways
Indian marriages that are legally valid under Indian law are generally recognised in England and Wales. Judicial divorces from Indian courts are typically recognised too, but non-judicial divorces may not be.
Where possible, mediation can help couples reach practical solutions without the cost and stress of court. Getting legal advice early on can be one of the most helpful steps for anyone dealing with a cross-border separation.
This article is for general information purposes only and does not constitute legal advice. For guidance specific to your circumstances, please consult a qualified solicitor.
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