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Marriage & Matrimonial Causes in Private International Law: Issues in Common Law Countries
Marriage & Matrimonial Causes in Private International Law: Issues in Common Law Countries
Marriage & Matrimonial Causes in Private International Law: Issues in Common Law Countries
Law Countries.1
Introduction
Despite the changes in society in recent decades, there remains much truth in the Lord
Westbury‟s 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
Nishant Chaturvedi, V year student & Sugandha Nayak, IV year student
2
(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
See Cheshire & North, Private International Law, thirteenth edn, p. 741.
6
(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
10
Refer, Art. 3 of the Hague Convention on the Celebration & Recognition of the Validity of Marriages, 1978.
11
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.
17
Cristofaro v. Cristofaro (1948) VLR 163.
18
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.
Consent of Parties
The rule states that „no marriage is valid if by the law of either party‟s 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
Re Howe v. Louis (1970) 14 DLR (3d) 49, cited in Dicey & Morris, Conflict of Law, thirteenth edn para 14-010.
24
Supra no. 10.
25
Way v. Way [1949] All ER 959.
26
(2005) 255 D.L.R. (4th) 757 (BC)
27
See Cheshire & North, Private International Law, seventh edn, p 276.
28
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.
33
Supra no. 5.
34
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.
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 husband‟s unreasonable behavior, 44 the court
will have to examine all the circumstances of the marriage45 and it been also held that the
36
Matrimonial Causes Act 1973, Section 47(2).
37
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.
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
Poon v Tan (1973) 4 Family Law 161.
47
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
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
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
52
De Reneville v. De Reneville, [1948] P. 100.
53
Zenelli v. Zenelli (1948) 64 T.L.R 556.
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.
(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.
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.
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.