Incidental Question

Incidental question is a separate and distinct issue that may arise in a private international law
case which requires the use of its own choice of law rules.
“An incidental question arises when the same question receives conflicting answers
depending on the law that has priority in a particular case.”
In private international law there may be a case which does not only demand answer to its
main question, but also to a subsidiary one. Usually, both the main and the subsidiary issues
require their own different choices of law rules.

For instance, let us assume that A claims succession rights to immovables of B who had no
will. B’s immovables are located in Spain. If we were to follow English private international
law, this issue would be covered by the Spanish law since the immovable property is situated
in Spain [situs]. This thought experiment also assumes in addition that A is B’s widow, but
Spanish law does not recognize her as such because Spanish Law does not recognize B’s
divorce from his first wife. Here, the issue is that whether we should use Spanish law not
only to determine whether A can inherit B’s immovable, but also whether the subsidiary
question of validity of the marriage can be determined by this law as well.

Legal scholars such as Wolff described this phenomenon in Private International Law as
“incidental question” while some others refer to it as “preliminary question”. This
phenomenon was first observed by the continental jurists. 

Analysis of Incidental Question

For there to be an incidental question, first there must be presumption of the following facts:

1. The main issue is governed by a foreign law [according to local Private

International Law].
2. The subsidiary question involves a foreign element and is such that it could
have arisen on its own and has its own choice of law rule.
3. Subsidiary question’s choice of law rule will lead to a different conclusion
than that of the main question.

These are the three bare minimum facts that must exist for there to even be an incidental
question in the first place.

Shaw v. Gould:
Shaw v. Gould does not directly address the issue of incidental question, since the main issue
of the case involved the succession question and it was decided tat the foreign law was
governed by English law. However, Dicey did not that the case “does present an incidental
question of the second degree…the incidental question should be determined by the conflict
of laws rule of the form” 3
Cheshire seems to concur with this point stating that: “What [Anglo-American judges] do in
practice, in circumstances which are said by jurists to raise this controversy, [of incidental
question] is generally to separate the incidental from the principal question, and to apply the
appropriate English choice of law rule to each.” 4 Lipstein notes on this case that “The House
of Lords, in Shaw v. Gould, set a course whereby each legal issue is determined in historical
sequence, and the rules of the conflict of laws of the forum apply to each issue successively”5
It is important to note that various legal scholars propose various solutions to the issue.
Wolff, Robertson proposed that the law applied in case of the main issue should be the same
law applied for the subsidiary one while other jurists like Falconbridge, Nussbaum and
Breslauer proposed the lex fori solution, that is that the law of the forum should be applied to
both issues. A more modern opinion is that it is neither possible nor even needed to find one
solution that fits all instances of incidental question. As Gotheb has said: “There is really no
problem of the incidental question, but as many problems as there are cases in which
incidental questions can arise”.

In Lawrence v Lawrence [1985] A woman, previously married in Brazil, got a divorce in US.

This divorce was not recognized in Brazil. The woman then married another man in US [she
did so in fact next day after divorce]. Some time later, the second husband filled a petition to
decide on the validity of this second marriage. Under Brazilian law the woman lacked the
capacity to marry, but under English Private International Law, the US’s divorce was
recognized. So, the incidental question was arising from this dilemma. In this case the Court
of Appeal in fact decided to recognize the validity of the second marriage. This in effect
meant that the court gave more importance to the divorce recognition than to the capacity to
marry. 6

Schwebel v Ungar 7 shows the opposite situation where the capacity to marry was given
primacy. In this case A Jewish-married couple domiciled in Hungary decided to move and
live in Israel. During their trip to Israel, in Italy, the husband divorced his wife by way of
“gett”, a short divorce document. While Israeli law recognized the gett divorce, the
Hungarian and Italian law did not do so. Both these people acquired Israeli domicile and wife
later on went to Ontario and married second time. The woman and new husband consulted a
rabbi beforehand who told them that this was completely legal. After this, they have lived
few years together before issues in marriage started to occur and the second husband of this
woman petitioned the Canadian court to issue a decree of nullity of their marriage on the
ground of bigamy of his wife. The issue before the Canadian court was to consider two
questions:

1. Wife’s capacity to marry under the Israeli law [chosen by the Ontario’s choice
of law rules]
2. Whether the divorce by get was valid.

In this case under Ontario rules of private international law the divorce would not be valid,
but it would be so under the Israeli law. Canadian Supreme Court in fact decided that the
second marriage was valid due to the fact that it was valid under law of Israel which was also
the law that dictated that capacity to marry. The Israeli Law prevailed over the Ontario’s rule
which did not recognize the divorce. As can be seen in this case the incidental question was
the divorce recognition while the capacity to marry was seen as the main question.

In Maltese case of Khan v Marriage Registrar, a Marriage Registrar refused to allow the

plaintiff to marry in Malta, on the basis that a divorce by talaq cannot be recognized in Malta.
In case of Maltese law, the divorce must be accompanied by a court judgment. However,
according to the Indian law, the law of the domicile of the plaintiff recognizes divorce by
talaq. Case was eventually withdrawn.
What happened was that Khan established domicile abroad, obtained divorce there, and then
came back to Malta and married his fiancée. In this case the question of recognition of the
extra-judicial divorce [in a form of talaq] was an incidental question while the main one was
the capacity to marry.

Often times when an incidental question arises in a case, the courts decide to apply the law
governing the main issue to the said incidental question. However, this is often done without
even realization that there even was an incidental question in the first place. One of the
reasons is due to the complexities that cases with incidental questions have. Jurists often
criticize this approach. 

Haque v Haque:
Australia follows the incidental question approach of considering each matter and the
corresponding question separately. The case of Haque v Haque (No 1) is an authoritative
source on this topic.8 Haque v Haque (No 1) involved the succession to movable and
immovable property. The incidental question was raised in relation to the movable property.
The testator was a Muslim man domiciled in India. He married his first wife and then
emigrated to Australia. Afterwards, the man married his second wife. This marriage, being
polygamous, was not recognized in Australia. It was, however, consider to be valid under the
Islamic law. Islamic law is considered to be the personal law for Muslims in India. The man
signed an agreement with his second wife whereby he agreed to recognize any children of the
second marriage as legitimate. Thus, those children would be entitled to inheritance as
legitimate children would under Islamic law. The man then drawn up a will to the contrary of
this agreement and left most of his property to his brother. The children to the man’s second
marriage claimed that they were entitled to a share of the man’s estate under Islamic law.
Australia’s High Court ruled that the choice of law rule to govern the disposition made by the
testator for his movable property must be directed according to the place of the domicile of
the testator. In this case, that was India. Since the law of India recognized the Islamic law as
the personal law of the testator, the children of the second marriage had a right to claim part
of the share in the movable property.
The main question in the Haque v Haque was whether the children of the second marriage
could inherit a share of the testator’s movable property. The incidental question was whether
children of the second marriage were legitimate. If the Hight Court applied the law of the
forum, then the answer would be no. But the Hight Court applied the Islamic Law. Mortensen
and Garnett argued that by deciding on the incidental question separately and by choose the
Islamic Law, the Hight Court acknowledged the practice that an incidental question must be
tackled by a court separately from the main issue of a case. 9
From the perspective of European private international law, in torts and contracts, the
incidental question is harmonized. For example, Article 10.1 of the Rome I Regulation states
that:

“The existence and validity of a contract, or of any term of a contract, shall be determined by
the law which would govern it under this Regulation if the contract or term were valid.”

Thus, law of the forum does not apply in relation to the incidental question.