Marriage & Matrimonial Causes in Private International Law: Issues in Common Law Countries.

Introduction
Despite the changes in society in recent decades, there remains much truth in the Lord Westburys dictum in Shaw v. Gould2 Marriage is the very foundation of the civil society, and no part of the laws and institutions of a country can be of more vital importance to its subject than those which regulate the manner and condition of forming, and if necessary of dissolving, the marriage contract. In English law, a marriage though a contract, is a contract sui generis. Each legal system determines the attributes of a marriage; at Common Law in England, it is in essence a consensual union of a man and a woman. A marriage was a voluntary union for life of one man with one woman to the exclusion of others. 3 This decision was the foundation of the rule that polygamous marriages were not recognized in England but the situation has been changed and such marriages are now recognized in England. The Hague Conference on Private International Law has drafted the Hague Convention on the Celebration and Recognition of the Validity of Marriages 1978. Few Common Law States have adopted it, Australia being the only exception, having amended the (Australian) Marriage Act 1961, in 1985 to give statutory force of convention relating to the recognition of marriage. The Law commission in the United Kingdom recommended against its adoption. Indian has not adopted it. The convention thus has little direct usefulness, some of its provisions are being briefly indicated, however to show what can be called the international consensus of opinion on the subject. A contract to marriage differs fundamentally from a commercial contract, 4 since it creates a status that affects the parties themselves and the society to which they belong. It is sui generis. It is fulfilled on the solemnization of the marriage ceremony, and thereafter there is a change in the law that governs the relationship between the parties. As far as matrimonial causes are concern they are now generally taken to include petition for divorce, nullity of marriage, judicial
1 2

Nishant Chaturvedi, V year student & Sugandha Nayak, IV year student (1868) L.R, 3 H.L, 55 at 82 3 See Hyde v. Hyde, (1866) LR 1 P & D 130. 4 Under the Law Reform (Miscellaneous Provision) Act 1970, s. 1, an agreement to marry does not have effect as a contract.

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separation and presumption of death and dissolution of marriage as well as similar foreign proceedings which may fall recognition here.

Meaning of Marriage
Marriage is a contract by which a man and a woman express their consent to create the relationship of husband and wife. This contract, however, differs fundamentally from a commercial contract in the following ways: As a general rule, it can only be concluded by a formal public act. It can only be dissolved by a formal public act. More importantly, it creates a status which is taken into account in relation to, for example, succession, tax, legitimacy of children, and to some extent in relation to immigration laws. 5

In English law, a marriage though a contract, is a sui generis. Each legal system determines the attributes of a marriage, at Common Law in England; it is in essence a consensual union of a man and woman. In a celebrated (or notorious) case in 1866, Hyde v. Hyde,6 it was held that a marriage was voluntary union for life of one man with one woman to exclusion of others. This decision was the foundation of the rule that polygamous marriages were not recognized in England.7 Even when divorces became easier, the concept was maintained, as the dissolubility of a marriage did not affect its legal character.8 This was also the position in Australia, and Canada.9 In India, among Hindus marriage has always been regarded as sacrament, whilst in Mohomedan Law, it is a contract. The formal requirement of the marriage will be governed by the law of the country where the marriage is celebrated. A marriage can be celebrated if the parties meet the substantive

requirement of the domestic law of the country where the marriage is celebrated, and one of the parties is a national of that state, or habitually resides there; and each party satisfies the

5 6

See Cheshire & North, Private International Law, thirteenth edn, p. 741. (1866) LR 1 P & D 130 7 Today the situation has been changed under this and now they are recognized for many purposes. 8 Nachimson v. Nachimson [1930] P 217 (CA), a marriage in the USSR at a time when a unilateral divorce was available to either party was recognized as a valid marriage in England. 9 Marriages celebrated according to Chinese, Japanese, Eskimo and Jewish rites were also recognized on proof that such marriages were monogamous. See Castels & Walkers, Canadian Conflict of Laws, sixth edn, para 16.6

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substantive requirements of the law applicable to the parties in accordance with the conflict of law rules of the place where the marriage is celebrated.10

Formal Validity of Marriage A. Position in England

In recent years, the Common Law rules have been considerably varied by statute; such changes are not discussed as the statutes would have no application outside England or United Kingdom. A marriage is formally valid when any one of the following conditions as to the form of celebration is complied with (that is to say): 11 i. If the marriage is celebrated in accordance with the form required or recognized as sufficient by the law of the country where the marriage was celebrated. 12 ii. If the marriage was celebrated in accordance with the English common law in a country where the use of the local form is impossible. 13 iii. If the marriage, between parties of whom at least one is United Kingdom national is celebrated outside the Commonwealth in accordance with the provisions of, and the form required by, the Foreign Marriage Acts, 1892.14 The leading more modern authority in England on the point is Sottomayor, otherwise De Barros v. De Barros,15 where the Court of Appeal held that the law of a country where the marriage is solemnized must alone decide all questions relating to the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that marriage, personal capacity must depends on the law of the domicile; and if the laws of any country prohibits its subject within certain degree of consanguinity from contracting marriage, and stamp a marriage between persons within the prohibited degree as incestuous. In Berthiaume v. Dastous,16 a decision of the Privy Council in an appeal from Canada, held that a marriage would be regarded as valid if the form adopted by the parties was in conformity with the law of the country where the marriage took place, even if it was not a proper form of law of the domicile of the parties.
10 11

Refer, Art. 3 of the Hague Convention on the Celebration & Recognition of the Validity of Marriages, 1978. See Dicey & Morris, Conflict of Law, thirteenth edn. P651. 12 Rule 67(1) of Common Law Rules. 13 Ibid, Rule 67(2) 14 Ibid, Rule 67(5) 15 (1877) 3 PD 1, p 5. 16 [1930] AC 79, p 83.

In English Law, two rebuttable presumptions are drawn presuming the validity of marriage: a) That if the parties go through a ceremony of marriage and live together, they were validly married. b) If the parties cohabit and are reputed to be married, they regarded as validly married; there must, however, be some evidence that the marriage complied with local form. 17

B. Position in Common Law Countries

I. Position in Australia Marriage by proxy will be recognized as valid if they are valid under the lex loci celebrationis. 18 Where the marriage is performed without the presence of an ordained priest, it had been held that the marriage would not be recognized in Australia. 19 Australian Court also recognize as a valid marriage performed according to religious ceremonies of the parties even if the formalities prescribed by law of the place where the marriage took place were not complied with in conditions prevailing at the time, whether the parties were British subject or not.20

II.

Position in Canada

The formal validity of a marriage is generally determined by the lex loci celebrationis.21 The lack of parental consent, when required by the lex domicilii is treated in the Canadian Common Law Province, as in England, as a question of formal validity, and, therefore governed by the law of the place where the marriage is celebrated. 22 If the lex loci recoginses as valid a marriage by cohabitation and repute, such marriage will be accepted as a valid marriage in Canada.

17 18

Cristofaro v. Cristofaro (1948) VLR 163. Supra, no. 10 19 See Nygh v. Davies, Conflict of Law in Australia, seventh edn, para 24.14 20 Savenis v. Sevenis, (1950) SASR 309. 21 See Castel & Walkers, Canadian Conflict of Laws, sixth edn, para 16.2; Forbes v. Forbes (1912) 3 DLR 324. 22 Hunt v. Hunt 14 DLR (2d) 243.

If a marriage, though invalid by the lex loci when considered, is retrospectively validated in the foreign country the marriage will recognized as valid in Canada even if , by then, both the parties were domiciled in Canada. 23

Capacity to Marry
Essential validity covers all questions of validity other than formal validity. Capacity to marry is a category within essential validity. Capacity to marry ought strictly to be confined to rules which lay down that a particular class of person lacks a power to marry which other people possess (for instance, rule that a person below a certain age may not marry). In practice, however, capacity to marry also includes cases where the reason for the invalidity, is that such a marriage relationship is objectionable in the eyes of law (for instance, rules prohibited marriages between relatives of certain degrees). Capacity to marry does not, however, cover the whole field of essential validity; it does not include the consent of the parties or the non consummation of the marriage. There is general agreement that this terminology includes matters of legal capacity such as consanguinity and affinity, bigamy and lack of age. Consideration is given later to a law to govern matters of consent and physical incapacity. The fact that capacity as a term encompasses a wide range of matters does not necessitate the conclusion that all matters of capacity should be subject to the same choice of law rule- a matter to which we shall return. A further preliminary point which ought to be borne in mind is that, provided that a person has capacity under the relevant law, the fact that he is, for example, under age according to English law will not invalidate the marriage in the eyes of English law as the law of the forum at least if the marriage is not in England. There are two main views as to the law which should govern capacity to marry- the dual domicile doctrine, and the intended matrimonial home doctrine.

Consent of Parties
The rule states that no marriage is valid if by the law of either partys domicile he or she does not consent to marry the other. 24 There appears to be no specific authority in England on the subject though observation by the Court of Appeal, in a case where the issue was whether a
23 24

Re Howe v. Louis (1970) 14 DLR (3d) 49, cited in Dicey & Morris, Conflict of Law, thirteenth edn para 14-010. Supra no. 10.

marriage by proxy was valid, observed that the mode of giving consent, as opposed to the fact of consent would be governed by the lex loci celebrationis. It was also held that the consent is governed by the law of the domicile of the parties. 25 The question that arises is as to which lex domicilii has to be considered, of both parties, or of the party whose consent is in question. The consensus seems to be, though there is no decision on the subject, that is should be domiciled of the person who is alleged to have lacked consent. In Davison v. Sweeney,26 it was held that alleged absence of consent was a matter for a domicile of the party concerned. In Canada, consent is regarded as a part of essential validity of a marriage and depends on the ante nuptial domicile of the parties.

The Choice of Law Rule

Formal validity is governed by the law of the country where the marriage is celebrated, that law is not generally thought appropriate in the English conflict of laws to govern the essential validity. This is because the marriage may be celebrated in a country which in other respect has no connection with the marriage or the parties. Neither of the parties may be domiciled there before the ceremony and they may not establish their home there after it. The choice of law rule doctrines are as under: 1. Dual Domicile Doctrine According to the dual domicile doctrine rule is that a persons domicile at the date of the marriage has to be considered. For marriage to be valid, each party must have capacity by the law of his or her domicile to contract the marriage. This rule commands most in English law, has several advantages. In terms of principle, it is appropriate that people be governed by the law of their existing domicile. The main rationale of this rule is that a persons status is a matter of public concern to the country to which he belongs at the time of marriage; and therefore the domiciliary law of each party has an equal right to be heard. Another advantage of this doctrine is that it is easy to apply in prospective situation. 2. Intended Matrimonial Home Doctrine

25 26

Way v. Way [1949] All ER 959. (2005) 255 D.L.R. (4th) 757 (BC)

An alternative approach is that the law of the intended matrimonial homes governs the essential validity of a marriage. 27 This provides a basic presumption in favour of the law of the country in which the husband is domiciled at the date of the marriage. This presumption can be rebutted if at the time of the marriage the parties intended to establish a matrimonial home in a different country and if they implemented that intention within a reasonable time. 28 3. Real and Substantive Connection Another possibility is that the essential validity of marriage should be governed by the law of the country with which the marriage has its most and real and substantial connection. As with the intended matrimonial home doctrine this rule is trying to connect the marriage with the country to which it belong. Normally, the country with which a marriage is most closely connected will be the country where the matrimonial home is situated.29 Further, while the real and substantial connection test has its supporters, it is, in reality, a question- begging test. The question in which, choice of law rule will best lead to the application of the law to which the parties and marriages belong. This test does not answer the question, but rather simply restates the pro blem. 30 4. Validity of either Partys Domiciliary Law Under this test a marriage would be regarded as essentially valid if it were valid under either partys ant e nuptial domiciliary law. This proposal has the advantage that it would promote the policy in favour of validity of marriage, but has little else to commend it.31 5. A Variable Rule In order to determine the most appropriate choice of law rule, one should examine why a particular impediment exists and which law has the most interest in the validity of the marriage. On this basis, the modified intended matrimonial home rule proposed above seems the more appropriate to govern incapabilities which are imposed to protect the public interest of countries, rather than the interest of the parties to the marriage. 32

27 28

See Cheshire & North, Private International Law, seventh edn, p 276. Cook, The Logic and Legal Bases of the Conflict of Laws (1942) p 448. 29 Lawrence v. Lawrence [1985] 1 All ER 506. 30 Davie, The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English Conflict of Laws (1994) 23 31 Hartley, The Policy Basis of the English Conflict of Laws of Marriage (1972) 35 MLR 571. 32 Jaffey, Topics in Choice of Law (1996) pp 3-7.

Matrimonial Causes
Matrimonial causes are now generally taken to include petition for divorce, nullity of marriage, judicial separation and presumption of death and dissolution of marriage as well as similar foreign proceedings which may fall recognition here. The rules relating to the jurisdiction of the courts and to the recognition of the foreign divorces, annulments and judicial separations are, in essence, the same for all three matrimonial causes, and therefore be examined together, identifying where appropriate any rule which do not apply to all three. It will be seen that the one major area of difference remaining concerns the determination of the law to be applied by the English Court. It is also necessary to discuss a further preliminary issue, namely whether an English court will assume jurisdiction to grant matrimonial relief in the case of an actually or potential polygamous marriage.

Polygamous Marriages and Matrimonial Relief

A. At Common Law Until 1972, the rule of English Law was that the parties to a polygamous marriage were not entitled to the remedies, the adjudication, or relief of the matrimonial law of England.33 It meant that, in the case of a polygamous marriage, the court would grant a divorce, a decree of nullity even where the petitioner claimed lack of capacity to enter a polygamous marriage,34 or a decree of judicial separation. It can be realized, however, that fundamental reform was called for a view of the number of immigrants from jurisdictional where they had contracted valid marriages in polygamous form. A substantial number of people, permanently residents through not domiciled in England, were denied all matrimonial relief. B. Matrimonial Causes Act, 1973 The entire above rule have been changed now and Section 47 35 of the Matrimonial Causes Act, 1973 makes it available to the parties to an actually polygamous marriage a

33 34

Supra no. 5. Risk v. Risk [1950] 2 All ER 973. 35 A Court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration concerning the validity of a marriage by reason only that either party to the marriage is, or has during the substance of the marriage been, married to more than one person.

wide range of matrimonial relief, 36 namely decrees of divorce, nullity, judicial separation, presumption of death and dissolution of marriage, order for financial provisions in the cases of neglect to maintain, variations of maintenance agreement, orders for financial relief or relating to children which are ancillary to any of the preceding decree 37 or order, order made under Part I of the Domestic Proceedings and Magistrates Court Act 1978, order for financial relief after a foreign divorce, annulment or legal separation 38 and any declaration under Part III of the Family Law Act 1986 involving a determination as to validity of a marriage.39 Indeed it has been said that the effect of section 47 of the 1973 Act is to abolish entirely the old rule, so that all forms of relief which can be classed as matrimonial are now available in the case of polygamous marriages.

C. Remaining Problems Where the party to an actually polygamous marriage brings proceeding for divorce alleged irretrievable breakdown of the marriage, 40difficulties may arise over adultery, unreasonable behavior or desertion as proof of breakdown. 41 If a wife alleges that her husband has committed adultery with another wife, such a claim will usually fail because, it is an essential element of adultery that intercourse has taken place outside the marriage relationship i.e. between persons not married to each other. This being so, intercourse with a wife could not be adultery.42 In terms of policy this conclusion seems right if both the marriages were entered into in polygamous form. It has been said 43 that in such a case there has been no breach of the obligation of fidelity imposed by the law governing the marriage, followed by a valid polygamous one. If a wife divorces petition is based on the husbands unreasonable behavior, 44 the court will have to examine all the circumstances of the marriage 45 and it been also held that the

36 37

Matrimonial Causes Act 1973, Section 47(2). Chaudhary v. Chaudhary, [1976] Fam 148 at 151. 38 Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15. 39 Matrimonial Causes Act 1973, Section 47(3). 40 Ibid, Section 1. 41 Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when Part II of the Family Law Act, 1996 is bought into force. 42 Onobrauche v. Onobrauche (1978) 8 Fam Law 107 43 Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110 44 Matrimonial Causes Act 1973 Section 1 (2) (b) 45 Gollins v. Gollins [1964] AC 644.

taking by the husband of a second wife is unreasonable behavior towards the first.46 Similarly, if a husbands petition is based on desertion by the first wife, the fact that he was the validity married a second wife has been held to give the first wife reasonable ground for leaving him. 47

Jurisdiction Divorce and Judicial Separation

It was lead by the Privy Council in Le Mesurier v. Le Mesurier, that according to international law, the domicile for the time being of the married pair affords the only jurisdiction and only true test of jurisdiction to dissolve their marriage. The essence of the rule in this case was that there should be only one test of jurisdiction and only one court capable of dissolving a particular marriage, the court of the parties domicile. The Matrimonial Causes Act, 1937, provided that the Court should have jurisdiction to grant a divorce, in proceeding by a wife, notwithstanding that the husband was not domiciled in England, if she had been deserted by her husband, or the husband had been deported from United Kingdom, and the husband was immediately before the desertion or deportion domiciled in England.48 These enactments were confined to proceeding by a wife. They did not extend to cross-petition by a respondent husband.49 The exercise of the English Courts jurisdiction in proceeding for divorce is subject to rules requiring or enabling the court to stay those proceedings in certain circumstances. 50

Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions for the nullity of marriages was one of the most vexed and difficult question in the whole of the English conflict of laws. An enormous simplification of the law was effected by section 5(3) of the Domicile and Matrimonial Proceeding Act 1973. This provides that the English Court have such jurisdiction to entertain such petition if (and, subject to section 5(5), on if) either party to the marriage:
46 47

Poon v Tan (1973) 4 Family Law 161. Quoraishi v. Quoraishi [1985] FLR 780 CA 48 Section 13, but now repealed. 49 Levett v. Levett and Smith [1957] P. 156 50 Family Proceeding Rules, 1991

(a) Is domiciled in England on the date when the proceedings are begun (b) Was habitually resident in England throughout the period of one year ending with the date, or (c) Dies before that date and either was at death domiciled in England, r had been habitually resident in England throughout the period of one year ending with the date of the death. Without this insignificant exception, the bases for jurisdiction in nullity of marriage are now the same as in divorce and judicial separation. A voidable marriage no longer confers the husbands domicile at the date of the marriage. 51 The bases for jurisdiction are now same whether the marriage is alleged to be void or voidable. It is therefore no longer necessary to consult foreign law i.e. the law of the husbands domicile at the date of the marriage. 52

Choice of Law A. Divorce

The question of choice of law has never been prominent in the English rules of the conflict of laws relating to divorce, which has always been treated as primarily a jurisdictional question. English Court when deciding whether to recognize foreign divorce have never examined the ground on which the decree was granted in order to hand, when English Court have themselves assumed jurisdiction, they have never applied any other law than that of England. In English law the only possible alternative to the lex fori would be the law of the domicile. No difference between them could exist before 1938, because English courts did not exercise jurisdiction unless the parties were domiciled in England. The Court of Appeal determined the question of divorce by the law which would be applicable thereto if both the parties were domiciled in England at the time of the proceeding, i.e. English law. 53 The rule may be justified on the ground that it would be highly inconvenient and undesirable from the practical point of view to apply foreign law in English divorce suit. Again, to require English Court to dissolve marriage an exotic foreign ground would be distasteful to judge and unacceptable to public opinion.

51 52

Section 1 of Domicile and Matrimonial Proceedings Act, 1973. De Reneville v. De Reneville, [1948] P. 100. 53 Zenelli v. Zenelli (1948) 64 T.L.R 556.

B. Judicial Separation
Unlike divorce a vinculo matrimonii, judicial separation was a remedy granted by the ecclesiastical court before 1858. There it was called divorce a mensa et thoro( divorce from bed and board). The principle effect of a decree was (and is) t entitle the petitioner to live a apart from the respondent, but not to dissolve their marriage nor enable either party to remarry. The remedy is sought chiefly by person who have religious scruples about divorce. It has never been doubted that the English court will apply English domestic law and no other, even if the parties are domiciled abroad.

C. Nullity of Marriage54
A nullity decree is concern with the validity of the creation of a marriage, unlike divorce which dissolves a marriage which is admittedly validly created. This means that the choice of law issues in nullity is essentially the same as those already examined in context of marriage. The reason why the choice of law for nullity is more difficult area than divorce is that the effect of annulment varies according to the particular ground in issue and they vary in relation to the same ground even within United Kingdom. Some defect avoids a marriage ab initio, i.e. render it void, whilst other merely renders it voidable. If one party is below minimum age of marriage or is already married, English Law regards the marriage as void.55 In Scotland, on the other hand, lack of consent also renders the marriage void ab initio.56 There are further differences in relation to the effect of an annulment. The annulment of a void marriage has retrospective effect; it declares the marriage never to have existed. However the position is different in England in case of a voidable marriage. It has been suggested that, as annulment of a voidable marriage and divorce decree both only have prospective effect, the law of the forum should be applied to the former as to the latter.

54

Ireland also has decided not to opt on to Rome III: Press Release 10 October 2006, available at http://www.justice.ie/en/JELR/Page/GovernmentrejectsEUdivorceproposals. last visited on 10th February, 2011. 55 Matrimonial Causes Act 1973, Section 11. 56 See, however, Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage (Scotland) Act 1977.

Recognition of Foreign Divorces

The English law of recognition of and foreign divorces has been codified and reformed by the Recognition of Divorce and Legal Separation Act, 1971. Under this, the English Court would recognize a foreign decree of divorce if it is recognized as valid by the court of the domicile of parties. Basically two grounds were laid down for the recognition in 1971:

(a) At the time of institution of the proceeding either spouse was a habitually resident in the country were divorce was obtained, (b) At the time of institution of the proceedings either spouse was a national of the country were divorce was obtained.

An extra-judicial divorce, if pronounced in England, will not be recognized by English Courts. If, on the other hand, it was granted abroad, then it will be recognized if it is effective under the law of the country where it was obtained and at that date, each party was domiciled in that country and the other was domiciled in a country which recognizes such decree, provided that neither party was habitual resident in the UK for one year immediately preceding that date.

A foreign decree may be refused recognition on the policy grounds, such as want of proper notice, want of opportunity to take part, the absence of an official document, or contrary to public policy.

Conclusion

A contract to marry fundamentally from a commercial contract, since creates a status that affects both the parties themselves and the society to which they belong. It is fulfilled on the solemnization of the marriage ceremony, and therefore there is a change in the law that governed the relationship between the parties.

There are many different situations in which the existence of a marriage must be established as a preliminary to legal proceedings. The matter may concern many different parts of the law. Thus the institution of matrimonial causes, such as a petitioner for divorce and judicial separation, implies that the parties are related to each other as husband and wife. Each legal system must determine the attributes of the consensual union between man and woman, the common factor, in eyes of the English law, of every marriage, which are necessary to create the relationship of husband and wife. The above project concludes that the case law just illustrates the incidental question does not attract a mechanical rule. Therefore each case is decided on its own facts and circumstances.

As far as jurisdiction of English Court is concerned, to entertain proceedings for nullity, if either party was habitual resident for one year or domiciled in England, or if either of the parties died before that date and either was at domiciled in England or had been habitually resident foe one year ending with the date of the death. A nullity decree may declare a marriage either void or voidable.