© Wife of polygamous union would be treated as wife unless something contrary is true. © husband and wife status of polygamous married persons would be recognised in English law * it would also be recognised for citizenship Matemity Benefit insurance in case of potentially polygamous or polygamous spouses. © it would also be recognised for succession to property by children however subject to exception that cannot succeed to real estate in England © it would also be recognised for the purpose of succession by spouse of the property of spouse in case of intestacy. The question is under which law should marriage be classified as monogamous or polygamous whether it should be the personal law of either party or the pre marriage domicile or the law of matrimonial home or lex loci celebrationis. In Lee y Lau the nature and incidents of marriage were determined by Lex loci celebrationis and whether to be characterized as polygamous or monogamous by Lex fori. Indian Scenario India each religious community has its own personal law. Hindus are governed by Hindu law Muslims are covered by Muslim law, the Parsis are covered by Parsi law and Christians by Christian law. In other words there is no one concept of marriage. Hindus consider marriage as sacrament and it is permanent indissoluble and eternal. © Muslim marriage is considered to be a contract. Shia Muslims recognise two types of marriages permanent marriage and Temporary marriage (muta). Shia Muslim cannot contract a valid permanent marriage with a non Muslim. A Shia male can contract a valid Mura marriage with a female Muslim, Christian, Jew or fire worshipper but with follower of no other religion. Shia female cannot enter into a Muta marriage with a non Muslim, Sunnis do not recognize Mura marriages. A Sunni: male can marry a female of any sect of Muslims, Christian, Jew but not fire or Idol worshipper. However it is not void or voidable but irregular. A Sunni female cannot contract a marriage with non Muslim but marriage with Christian or Jew is not void but irregular. stian Marriages Act 1872 regulates Christian marriages and marriage may be performed before marriage registrar or solemnised by a licensed Minister of religion, Marriage with the non Christian can be only performed under the Christian Marriage Act, otherwise it will be void. However if the personal law of any of the parties forbids such marriage then it cannot be performed.live together and husband left for France and wife for England. On the petition of the wife in an English court for a decree of nullity on the ground of lack of consent the English court passed decree in her favour on the basis of lack of capacity under her prenuptial domicile. Age of the parties: Also has been characterized as a matter of essential validity and differs from country to country. In Pugh v Pugh, marriage between a domiciled English man and a domiciled Hungarian 15 year old girl was held as void. Prohibited Degrees of relationship: Marriages within prohibited degrees of consanguinity and affinity have been considered void under the English law. In Mette v Mette German domiciled in England married in Germany after the death of his wife, his wife's sister who was domiciled in Germany and whose marriage was held as void. CERTAIN EXCEPTIONS © The validity of a marriage celebrated in England between persons of whom one has an English and other a foreign domicile is not affected by an incapacity though existing under the law of such foreign domicile does not exist under the law of England.(Sortomayor v De Barros). However it may lead to limping marriages which may be valid in England but not in the country of the domicile of one spouse. © In some the cases the law of place of celebration was also taken into consideration in addition to the law of domicile or intended matrimonial home for determining the essential validity of marriages. This is so especially where the place of marriage is the forum So a marriage celebrated in England is possibly not valid if either of the parties is under English domestic law under an incapacity to marry the other. © Where a foreign domiciliary law governs the capacity of the parties to marriage, it will not be recognised if it is repugnant to public policy * Also different choice of law rules may be applied to different issues of essential validity so as to enable the courts to retain flexibility necessary to reach just results in difficult cases. © Marriage is not valid if either of the parties being a descendant of George II marries in contravention of the royal Marriage Act 1772 © Marriage is not invalid on account of of incapacity imposed by the law of domicile of the parties if it is penal in nature. Scott v A-G the two persons domiciled in South Africa were divorced in that country and the law provided that the guilty party could not remarry as long as the other party remained unmarried. The guilty party remarried in England and which was upheld by the English court on the ground that the restriction on remarriage was a penalty. Also in recent years consideration has been given to other approaches such as real and substantial connection (Vervaeke v Smith), Alternative reference( marriage regarded as validman and wife and not their pre-marriage domicile. Also in cases of domicile, the peculiar difficulties associated with reversion to domicile of origin may occur and there may be a case that the country in which party is technically domiciled immediately prior to marriage does not represent his home, Also in intended matrimonial home theory only one law is to be applied. Dual domicile theory tends towards invalidity of marriages. It also is prone to. misuse as, if a particular domicile prohibits marriage then that person can acquire a domicile where it is valid One of the disadvantages of the intended matrimonial home theory is that any rule is undesirable which renders it impossible to decide whether a marriage is valid or void at the time of it's celebration. This is so because it may be doubtful whether the parties intend to establish their home in a particular country. Howover the counter to this is that any question of validity of marriage arises mostly incidentally in the course of some other proceedings and by that time the intended matrimonial home will be known. Also post marriage intentions should be irrelevant to determine pre-marriage capacity. One of the advantages of dual domicile theory is that it refers capacity to marry to that law which up to the time has governed the status of each party. It also preserves equality of sexes. English Scenario Looking at the English decisions it is inconclusive whether in England dual domicile or matrimonial home theory is supported. For example in Brook v Brook a Danish marriage was held void because both spouses lacked capacity under English law, that is the law of the domicile and of the intended matrimonial home Also similarly in Merte v Mette as antenuptial domicile and post marriage domicile was same. Support for intended matrimonial home theory may be found in in The Will of Swan case, De Reneville v De Reneville, Kenward v Kenward, Radwan v Radwan, Lawrence v Lawrence. Support for dual domicile theory may be found in Re Paine, Pugh v Pugh, A Local Authority v X, Padolecchia v Padolecchia. Further support for dual domicile theory may be found in two statutory provisions. Marriage( Enabling) Act 1960 lays down a rule for the choice of law by providing that no such marriage is valid if a party to it had at the time of marriage domiciled in a country outside Great Britain and under the law of that country there cannot be a valid marriage between the parties.(sec 1(3)). It provides a clear statutory reference to the dual domicile theory though in admittedly limited circumstances. The second statutory reference section 11(d) of the Matrimonial Causes Act 1973 which stipulates that an actually polygamous marriage celebrated abroad is void if either party was domicile in England at the time of marriage. ‘As a General rule capacity to marry is governed by the ante-nuptial domicile of each party (Brook v Brook)(Sottomayor v De Barros) Consent of the parties: It has been characterized as a matter of essential validity of marriage. In H v H a Hungarian domiciled girl married in Hungary with her French domiciled cousin. They did notvalidity of marriage is determined by the law of domicile of each party at the time of marriage and the formal Validity of marriage is determined by Lex loci celebrationis that is the place of celebration of marriage. As per the English law characterization of a marriage solemnized in England will be made under irrespective of domicile or if the marriage is solemnized outside England and if is a domicile of England, then also under English law. However if both the parties are domiciled outside England and the marriage is also solemnized abroad then characterization will be done according to the place of celebration of marriage. Apt v Apt An Argentina domiciled man married a woman domiciled in England. The marriage was performed by proxy which is recognised under the Argentina law. When deciding the validity of marriage, as one of the parties was of an English domicile, the English law characterized the same as regarding formal validity and as formal validity is governed by lex loci celebrationis was held as valid. Essential Or Material Validity Of Marriage Or Capacity Of Marriage This includes matters of legal capacity such as consanguinity and affinity, bigamy and lack of age. consideration was later also given to matters of consent and physical incapacity. ‘The two main theories as to the law which should govern capacity to marry 1 dual domicile doctrine 2 the intended matrimonial home doctrine DUAL DOMICILE DOCTRINE The traditional and still prevalent view is that capacity to marry is governed by dual domicile doctrine which prescribes that a marriage is invalid unless according to the law of domicile of both the contracting parties at the time of marriage, they cach have capacity to contract that particular marriage, For example a marriage between a man of Jewish faith domiciled in Egypt and his niece of the same faith domiciled in England was invalid as the marriage between the persons so related though permissible in Egypt, is prohibited by English law( place of domicile of one of the parties) THE INTENDED MATRIMONIAL HOME DOCTRINE, The basic presumption is that capacity to marry is governed by the law of the husband’ domicile at the time of marriage for normally it is in the country of that domicile that the parties intend to establish their permanent home. EVALUATION OF THE DOCTRINEs On social grounds the doctrine of dual domicile is inferior to that of intended matrimonial home as marriage is an institution which is closely concerned with public policy and social morality of the state. If the parties domicile differs, then whose domicile will be accorded primary consideration, Also marriage of two persons should be prohibited or not prohibited based on the social moral or religious norms of the community in which the parties live/intend together asCommon law exception There are certain exceptional circumstances in which a marriage may be recognised even though it has not been solemnised according to the law of the place of celebration provided it satisfies the form required by the common law of England. A common law marriage requires that the parties to take each other as husband and wife. A further condition was added that an episcopally ordained priest or deacon performs the ceremony. The exceptions under the common law are * Common law marriages performed abroad where the common law is in force in the foreign country. This was so in the Colonial countries © a marriage in a foreign country where local form: istent or where those that exist are inapplicable to an English marriage is valid if it is contracted in the presence of a episcopally ordained priest. ® insuperable difficulty the situation is that the parties though not subject to the common law in the foreign place of celebration have without regard to local formalities taken each other as husband and wife at a ceremony performed by an episcopally ordained priest will be valid if compliance with local formalities has been prevented by some insuperable difficulty. This is that difficulty which cannot be overcome and not just difficult to obey. which means if the difficulties are not insurmountable compliance with the local form is essential. © marriages of military forces in belligerent occupation although the compliance with local law is not impossible it may be unreasonable such as during World War II there are many people married without recourse to Nazi authorities. © marriages on high seas there may be situations that there may be no one system of law common to law of the flag which the ship is flying. Indian law Indian private international law entails that a marriage to be formally valid must comply with Lex loci celebrationis. In India the personal law of Indians is not uniform. In India persons are governed by their personal law with regard to the marriage. They perform their marriage under the personal law to which both parties belong or they may perform a civil marriage under the Special Marriage Act 1954, The required ceremonies are laid down by the personal law of the parties if they marry according to their personal law. Non-compliance will render the marriage null and void. For example Hindus may marry in accordance with the ceremonies prescribed under Hindu law or the customary ceremonies. Under Muslim law proposal and acceptance in the same meeting is required along with the requirement of witnesses. However this varies under Shias and Sunnis with the requirement of witness not necessary in Shia marriages. Among Christians a marriage may be solemnized by a Minister of Church or in the presence of a marriage registrar along with the requirement of witnesses. The parties must declare to each other to take as husband and wife. A Parsi marriage to be solemnized requires Ashirbad form by a Parsi priest in the presence of two Parsi witnesses. Amongst Jews Katuba a written contract and witnesses is required. The foreign Marriage Act 1969 governs consular marriages between an Indian national and foreigner or between two Indian nationals abroad, It requires the presence of witnesses and declaration in the presence of the marriage officer to take each other as husband and wife.formally valid in accordance with the law of the place where it took place then the marriage would be valid everywhere.The reverse is also true that is if the marriage is no marriage in the place where it is celebrated then it is not a marriage anywhere although the ceremony if conducted in the place of the parties domicile would be considered to be a marriage. Also the application of the law of the celebration of marriage to the formalities of marriage will not be disturbed even if the sole object of the parties in celebrating the marriage abroad is to evade some requirement of their domicile law.(Simonin v Mallac). The ceremonies which should be performed is entirely governed by the local law where it is celebrated. Thus a marriage performed by cohabitation or being known as living as husband wife may also be formally valid. English law No marriage in England is formally valid unless it complies with the requirements of English law laid down in Marriage Act 1949 (amended), However there is an important element that whether a particular rule in the place of ceremony is of formal validity of essential validity. Some matters may seem clearly to be formal in character such as whether a religious or civil ceremony is required, the time and place of the ceremony, the persons by whom the marriage ceremonies may be conducted, the need for witnesses, registration of marriage, prior notification of ceremony. For example a rule which permits a marriage by proxy must be classified as formal as it is concerned with the manner in which the marriage ceremony may be performed though if a woman domiciled and resident in England executes power of attorney appointing X to act as a representative in the celebration of a marriage between her and Y in a country where marriage by proxy is recognised and the ceremony is in fact performed, the marriage will be valid formally. Marriage which is initially invalid by local law will be recognised if it is subsequently by validated by local legislation(Starkowski v A.G) However in certain matters such as parental consent there is a difference across legal systems English law classifies this as a question of formal validity. Exceptions to the general rule in English law ‘There are two statutory exceptions and one common law exception to the rule that the law of the place of celebration governs formalities Statutory exception Prior to the adoption of the Marriage( Same Sex couples) Act 2013 the two statutory exceptions were contained in The Foreign Marriages Act 1892. The 1892 Act was repealed by section 13 (2) of the 2013 act and in its place schedule 6 of the 2013 act has effect. Schedule 6 pertains to marriage overseas such as with marriages in British consulate overseas, certificates of no impediment to facilitate Overseas marriages and civil partnerships under the local laws and marriages on armed forces bases overseas. © Consular marriage or a marriage of a member of British forces serving abroad contracted under these statutory provisions is formally valid in England regardless whether it complies with the law of the country where the marriage was celebrated.either of the two doctrines makes it valid), elective dual domicile test( any of the two domicile should regard it as valid) Indian law ‘The marriages performed in India amongst the members of any community would be generally governed by the personal laws of the parties and both material and formal validity depend on Lex loci celebrationis. For marriages performed amongst Hindus or Muslims or Christians or Jews under their personal laws, the courts would recognise marriages even if one of the parties or both of the parties have no capacity to enter into marriage under their antenuptial domicile or their matrimonial home domicile. imilarly the special Marriage Act 1954 also governs the marriages performed under it respective of the domicile. For marriages solemnized abroad the foreign Marriage Act 1969 governs it and section 11 states that the marriage officer will refuse to solemnize the marriage if Lex loci celebrationis prohibits such marriage or it is inconsistent with international law or comity of nations. Section 23 lays down conditions for recognition of marriages solemnized under foreign countries laws, Statutes enacted in India also recognise that capacity to marry is governed by the law of domicile. For example Hindu Marriage Act 1955 which lays down the conditions for a valid marriage applies to Hindus domiciled in India even if they are outside India. In Perumal Nadar v Ponnuswami Nadar it could be inferred that question of capacity to contract a bigamous marriage was dependent on the law of a person's domicile. Section 5 of the Hindu Marriage Act 1955 lays down the conditions for a valid marriage among Hindus. The conditions include prescribed minimum age, free consent, not within prohibited degrees of relationship or Sapindas. Christian marriage can be annulled if the conditions set out in section 19 of the divorce act 1869 are satisfied, marriage must not be within the prohibited degrees of consanguinitw” or affin? neither party should have a spouse alive. Customary Mohammedan law is applied by the courts in relation to Musi 7/18 anc requirements relating to capacity are attainment of the age of puberty, not. rule. consanguinity, affinity or fosterage as well as marriage with non Muslims which may be vou. (shias) or irregular( sunnis). Section 3 of the Parsi Marriage and Divorce Act 1936 prescribes the capacity as not being within the degrees of consanguinity and affinity. Foreign Marriages Act 1969 also set out that neither party has a spouse living, or is an idiot or lunatic and prescribed minimum ages. FORMALITIES OF MARRIAGE Locus regit actum applies to formalities of marriage implying that an act is governed by the law of the place where it is done. Whether any particular ceremony constitutes a formally valid marriage depends on the law of the country where the ceremony took place. If the marriage isMARRIAGE Marriage is different from any other type of contract as it creates status, that is of husband and wife, as also the status of legitimacy on children of marriage. Marriage can be a contract, a sacrament, soluble indissoluble or a mixture of contract and sacrament, Under the English law marriage is defined as a voluntary union for life between one man and ‘one woman to the exclusion of others( Hyde v Hyde). This notion gives rise to problems in polygamous marriages. All monogamous marriages whether Christian or non-Christian were recognized. Also the marriage need not be permanent marriage. What was necessary was that at time of marriage it must be indefinite in duration and may even be dissoluble in future. Also the date for considering whether marriage polygamous or monogamous is not date of marriage but date on which proceedings for matrimonial relief are filed. Note on Polygamous Marraiges ‘The extreme view in Harvey v Farnie was that polygamous marriages cannot be recognised for any purpose. Historically polygamous marriages were not recognised even if they were potentially polygamous, Even if personal law permitted monogamy but also allowed concubines then still considered to be polygamous marriages. If personal law does not permit polygamy but person marries at place where polygamy was allowed then also marriage was not recognized in England. As per Matrimonial Proceedings( Polygamous Marriages) Act 1972 polygamous marriages outside England between English party (both or one) domiciled in England will be void even if potentially polygamous. The modern English law now gives full recognition to. polygamous marriages.( Baindail v Baindail ) Indian domiciled Hindu having a wife married an English domiciled English girl. English girl petitions for nullity of marriage on the ground that at the time of marriage already had wite living. English Court granted the petition. Recognition of marital status being universal the court would recognise marital status of even polygamously married persons but not for all purposes. In Sinha Peerage Claim case, the children of potentially polygamous marriage of an Indian domiciled Hindu was recognised as legitimate and entitled (o inherit the English peerage. In Ali v Ali the potentially polygamous marriage converted to a monogamous Union on acquiring a domicile of choice in England as law of domicile of choice did not permit polygamy. The Matrimonial Proceedings( Polygamous Marriages) Act 1972 empowers court to grant matrimonial relief two parties whose legal system permits polygamous marriages irrespective whether the marriage is polygamous or potentially polygamous. However a valid polygamous marriage is not a sufficient first marriage to support an indictment for bigamy. Some purposes for which Polygamous marriages will be recognizedHowever a marriage officer may refuse to solemnize or register a marriage which in his, opinion is inconsistent with international law or the comity of nations. Section 23 of the foreign Marriage Act 1969 provides that a marriage performed outside India would be regarded as valid if it was performed in accordance with the law of the country where the marriage was performed, implying the applicability of lex loci celebrationis. In Noor Jehan Begum v Eugene Tiscenco it was observed that formal validity would be governed by Lex loci celebrationis.* Parsis also consider marriage as a contract. A Parsi marriage is monogamous union and cannot contract another marriage during the lifetime of spouse. Parsis are regulated by the Parsi Marriage and Divorce Act 1936 and a marriage can be performed only between two Parsis and requires the ceremony of Ashirbad. * Indian Jews consider marriage as a monogamous union and a contract. A written contract called Katuba along with marriage ceremony is essential. © Also Special Marriage Act 1954 allows a civil marriage between any two persons which may be inter caste, inter communal or inter religious. Once the parties choose to marry under the act all matrimony matters will be regulated by the act. * Also under the Foreign Marriages Act 1969, an Indian national can marry abroad with another Indian national or national /domicile of any other country. Cases related to conflict in marriage laws usually in India are related to conversion of spouse to another religion. If both parties changed their religion then they will be governed by the new personal law. However if one of the spouses alone changes his religion then no matrimonial relief can be granted to the convert spouse on the basis of his new personal law.( Nuyjahan v Tiscenco). In Saeeda Khatun v Ovedia it was observed that the marriage performed under one personal law could not be dissolved under another personal law just because one of the parties has converted to another religion. Validity of Marriages Validity of marriage requires two conditions first parties to marriage must have capacity to marry that is essential or material validity of marriage and secondly the parties must have performed the required ceremonies for marriage that is formal validity of marriage. Valid marriage requires both essential and formal validit However the most difficult problem is how the validity of marriage is to be decided that is the problem of characterization. A legal system may characterize a matter related to marriage as as related to formal validity whereas the same may be characterized as related to essential validity by another legal system. Ogden v Ogden To resolve this Graveson recommends a functional test that is what is the purpose of a particular legal system in imposing any requirement for marriage? Whether a particular matter is of essential or formal validity will then depend on the degree of social interest it embodies, Those matters which are vital for the maintenance of accepted standards of marriage or family relations in a society will be governed as essential and those matters of less vital social interest will be governed as related to formal validity. Characterization of any requirement of marriage is to be made as per the law of each parties domicile on the basis of justice and logic according to Graveson and on the other hand Cheshire recommends it to be determined by the matrimonial home of the parties. Generally the materialeither of the two doctrines makes it valid), elective micile test( any of the two domicile should regard it as valid) } Indian law ‘The marriages performed in India amongst the members of any community would be generally governed by the personal laws of the parties and both material and formal validity depend on Lex loci celebrationis. For marriages performed amongst Hindus or Muslims or Christians or Jews under their personal laws, the courts would recognise marriages even if one of the parties or both of the parties have no capacity to enter into marriage under their antenuptial domicile or their matrimonial home domicile. imilarly the special Marriage Act 1954 also governs the marriages performed under it respective of the domicile. For marriages solemnized abroad the foreign Marriage Act 1969 governs it and section 11 states that the marriage officer will refuse to solemnize the marriage if Lex loci celebrationis prohibits such marriage or it is inconsistent with international law or comity of nations. Section 23 lays down conditions for recognition of marriages solemnized under foreign countries laws, Statutes enacted in India also recognise that capacity to marry is governed by the law of domicile. For example Hindu Marriage Act 1955 which lays down the conditions for a valid marriage applies to Hindus domiciled in India even if they are outside India. In Perumal Nadar v Ponnuswami Nadar it could be inferred that question of capacity to contract a bigamous marriage was dependent on the law of a person's domicile. Section 5 of the Hindu Marriage Act 1955 lays down the conditions for a valid marriage among Hindus. The conditions include prescribed minimum age, free consent, not within prohibited degrees of relationship or Sapindas. Christian marriage can be annulled if the conditions set out in section 19 of the divorce act 1869 are satisfied, marriage must not be within the prohibited degrees of consanguinity or affint neither party should have a spouse alive. Customary Mohammedan law is applied by the courts in relation to Musi 7/18 nc requirements relating to capacity are attainment of the age of puberty, not. rule, consanguinity, affinity or fosterage as well as marriage with non Muslims which may be vou. (shias) or irregular( sunnis). Section 3 of the Parsi Marriage and Divorce Act 1936 prescribes the capacity as not being within the degrees of consanguinity and affinity. Foreign Marriages Act 1969 also set out that neither party has a spouse living, or is an idiot or lunatic and prescribed minimum ages. FORMALITIES OF MARRIAGE Locus regit actum applies to formalities of marriage implying that an act is governed by the law of the place where it is done. Whether any particular ceremony constitutes a formally valid marriage depends on the law of the country where the ceremony took place. If the marriage is\ 6 However a marriage officer may refuse to solemnize or register a marriage which in his, opinion is inconsistent with international law or the comity of nations. Section 23 of the foreign Marriage Act 1969 provides that a marriage performed outside India would be regarded as valid if it was performed in accordance with the law of the country where the marriage was performed, implying the applicability of lex loci celebrationis. In Noor Jehan Begum v Eugene Tiscenco it was observed that formal validity would be governed by Lex loci celebrationis.© Wife of polygamous union would be treated as wife unless something contrary is true. © husband and wife status of polygamous married persons would be recognised in English law © it would also be recognised for citizenship Maternity Benefit insurance in case of potentially polygamous or polygamous spouses. © it would also be recognised for succession to property by children however subject to exception that cannot succeed to real estate in England © it would also be recognised for the purpose of succession by spouse of the property of spouse in case of intestacy. The question is under which law should marriage be classified as monogamous or polygamous whether it should be the personal law of either party or the pre marriage domicile or the law of matrimonial home or lex loci celebrationis. In Lee v Lau the nature and incidents of marriage were determined by Lex loci celebrationis and whether to be characterized as polygamous or monogamous by Lex fori. Indian Scenario 1 India each religious community has its own personal law. Hindus are governed by Hindu law Muslims are covered by Muslim law, the Parsis are covered by Parsi law and Christians by Christian law. In other words there is no one concept of marriage. © Hindus consider marriage as sacrament and it is permanent indissoluble and eternal. © Muslim marriage is considered to be a contract. Shia Muslims recognise two types of marriages permanent marriage and Temporary marriage (muta). Shia Muslim cannot contract a valid permanent marriage with a non Muslim. A Shia male can contract a valid Muta marriage with a female Muslim, Christian, Jew or fire worshipper but with follower of no other religion. Shia female cannot enter into a Mura marriage with a non Muslim. Sunnis do not recognize Mura marriages. A Sunni male can marry a female of any sect of Muslims, Christian, Jew but not fire or Idol worshipper. However it is not void or voidable but irregular, A Sunni female cannot contract a marriage with non Muslim but marriage with Christian or Jew is not void but irregular. © The Christian Marriages Act 1872 regulates Chri performed before marriage registrar or solemni: Marriage with the non Christian can be only performed under the Christian Marriage Act, otherwise it will be void. However if the personal law of any of the parties forbids such marriage then it cannot be performed. ian marriages and marriage may beman and wife and not their pre-marriage domicile. Also in cases of domicile, the peculiar difficulties associated with reversion to domicile of origin may occur and there may be a case that the country in which party is technically domiciled immediately prior to marriage does not represent his home, Also in intended matrimonial home theory only one law is to be applied. Dual domicile theory tends towards invalidity of marriages. It also is prone to. misuse as, if a particular domicile prohibits marriage then that person can acquire a domicile where it is valid One of the disadvantages of the intended matrimonial home theory is that any rule is undesirable which renders it impossible to decide whether a marriage is valid or void at the time of it's celebration. This is so because it may be doubtful whether the parties intend to establish their home in a particular country. Howover the counter to this is that any question of validity of marriage arises mostly incidentally in the course of some other proceedings and by that time the intended matrimonial home will be known. Also post marriage intentions should be irrelevant to determine pre-marriage capacity. One of the advantages of dual domicile theory is that it refers capacity to marry to that law which up to the time has governed the status of each party. It also preserves equality of sexes. English Scenario Looking at the English decisions it is inconclusive whether in England dual domicile or matrimonial home theory is supported. For example in Brook v Brook a Danish marriage was held void because both spouses lacked capacity under English law, that is the law of the domicile and of the intended matrimonial home Also similarly in Merte v Mette as antenuptial domicile and post marriage domicile was same. Support for intended matrimonial home theory may be found in in The Will of Swan case, De Reneville v De Reneville, Kenward v Kenward, Radwan v Radwan, Lawrence v Lawrence. Support for dual domicile theory may be found in Re Paine, Pugh v Pugh, A Local Authority v X, Padolecchia v Padolecchia. Further support for dual domicile theory may be found in two statutory provisions. Marriage( Enabling) Act 1960 lays down a rule for the choice of law by providing that no such marriage is valid if a party to it had at the time of marriage domiciled in a country outside Great Britain and under the law of that country there cannot be a valid marriage between the parties,(sec 1(3)). It provides a clear statutory reference to the dual domicile theory though in admittedly limited circumstances. The second statutory reference section 11(d) of the Matrimonial Causes Act 1973 which stipulates that an actually polygamous marriage celebrated abroad is void if either party was domicile in England at the time of marriage. ‘As a General rule capacity to marry is governed by the ante-nuptial domicile of each party (Brook v Brook)(Sottomayor v De Barros) Consent of the parties: It has been characterized as a matter of essential validity of marriage. In H v H a Hungarian domiciled girl married in Hungary with her French domiciled cousin. They did not* Parsis also consider marriage as a contract. A Parsi mMfriage is monogamous union and cannot contract another marriage during the lifetime of spouse. Parsis are regulated by the Parsi Marriage and Divorce Act 1936 and a marriage can be performed only between two Parsis and requires the ceremony of Ashirbad. © Indian Jews consider marriage as a monogamous union and a contract, A written contract called Katuba along with marriage ceremony is essential. © Also Special Marriage Act 1954 allows a civil marriage between any two persons which may be inter caste, inter communal or inter religious. Once the parties choose to marry under the act all matrimony matters will be regulated by the act. * Also under the Foreign Marriages Act 1969, an Indian national can marry abroad with another Indian national or national /domicile of any other country. Cases related to conflict in marriage laws usually in India are related to conversion of spouse to another religion. If both parties changed their religion then they will be governed by the new personal law. However if one of the spouses alone changes his religion then no matrimonial relief can be granted to the convert spouse on the basis of his new personal law.( Nurjahan v Tiscenco). In Saeeda Khatun v Ovedia it was observed that the marriage performed under one personal law could not be dissolved under another personal law just because one of the parties has converted to another religion, Validity of Marriages Validity of marriage requires two conditions first parties to marriage must have capacity to marry that is essential or material validity of marriage and secondly the parties must have performed the required ceremonies for marriage that is formal validity of marriage. Valid marriage requires both essential and formal validit However the most difficult problem is how the validity of marriage is to be decided that is the problem of characterization. A legal system may characterize a matter related to marriage as as related to formal validity whereas the same may be characterized as related to essential validity by another legal system. Ogden v Ogden To resolve this Graveson recommends a functional test that is what is the purpose of a particular legal system in imposing any requirement for marriage? Whether a particular mater is of essential or formal validity will then depend on the degree of social interest it embodies, Those matters which are vital for the maintenance of accepted standards of marriage or family relations in a society will be governed as essential and those matters of less vital social interest will be governed as related to formal validity. Characterization of any requirement of marriage is to be made as per the law of each parties domicile on the basis of justice and logic according to Graveson and on the other hand Cheshire recommends it to be determined by the matrimonial home of the parties. Generally the materialvalidity of marriage is determined by the law of domicil§ of each party at the time of marriage and the formal Validity of marriage is determined by loci celebrationis that is the place of celebration of marriage. As per the English law characterization of a marriage solemnized in England will be made under irrespective of domicile or if the marriage is solemnized outside England and if is a domicile of England, then also under English law. However if both the parties are domiciled outside England and the marriage is also solemnized abroad then characterization will be done according to the place of celebration of marriage, Apt v Apt An Argentina domiciled man married a woman domiciled in England. The marriage was performed by proxy which is recognised under the Argentina law. When deciding the validity of marriage, as one of the parties was of an English domicile, the English law characterized the same as regarding formal validity and as formal validity is governed by lex loci celebrationis was held as valid. Essential Or Material Validity Of Marriage Or Capacity Of Marriage This includes matters of legal capacity such as consanguinity and affinity, bigamy and lack of age. consideration was later also given to matters of consent and physical incapacity. The two main theories as to the law which should govern capacity to marry 1 dual domicile doctrine 2 the intended matrimonial home doctrine DUAL DOMICILE DOCTRINE ‘The traditional and still prevalent view is that capacity to marry is governed by dual domicile doctrine which prescribes that a marriage is invalid unless according to the law of domicile of both the contracting parties at the time of marriage, they each have capacity to contract that particular marriage. For example a marriage between a man of Jewish faith domiciled in Egypt and_ his niece of the same faith domiciled in England was invalid as the marriage between the persons so related though permissible in Egypt, is prohibited by English law( place of domicile of one of the parties) THE INTENDED MATRIMONIAL HOME DOCTRINE, The basic presumption is that capacity to marry is governed by the law of the husband’ domicile at the time of marriage for normally it is in the country of that domicile that the parties intend to establish their permanent home. EVALUATION OF THE DOCTRINEs On social grounds the doctrine of dual domicile is inferior to that of intended matrimonial home as marriage is an institution which is closely concerned with public policy and social morality of the state. If the parties domicile differs, then whose domicile will be accorded primary consideration, Also marriage of two persons should be prohibited or not prohibited based on the social moral or religious norms of the community in which the parties live/intend together asCommon law exception There are certain exceptional circumstances in which a marriage-"may be recognised even though it has not been solemnised according to the law of the place of celebration provided it satisfies the form required by the common law of England. A common law marriage requires that the parties to take each other as husband and wife. A further condition was added that an episcopally ordained priest or deacon performs the ceremony. The exceptions under the common law are * Common law marriages performed abroad where the common law is in force in the foreign country. This was so in the Colonial countries * a marriage in a foreign country where local formalities are non existent or where those that exist are inapplicable to an English marriage is valid if it is contracted in the presence of a episcopally ordained priest. * insuperable difficulty the situation is that the parties though not subject to the common law in the foreign place of celebration have without regard to local formalities taken each other as husband and wife at a ceremony performed by an episcopally ordained priest will be valid if compliance with local formalities has been prevented by some insuperable difficulty. This is that difficulty which cannot be overcome and not just difficult to obey. which means if the difficulties are not insurmountable compliance with the local form is essential. © marriages of military forces in belligerent occupation although the compliance with local law is not impossible it may be unreasonable such as during World War Il there are many people married without recourse to Nazi authorities. © marriages on high seas there may be situations that there may be no one system of law common to law of the flag which the ship is flying. Indian law Indian private international law entails that a marriage to be formally valid must comply with Lex loci celebrationis. In India the personal law of Indians is not uniform. In India persons are governed by their personal law with regard to the marriage. They perform their marriage under the personal law to which both parties belong or they may perform a civil marriage under the Special Marriage Act 1954, The required ceremonies are laid down by the personal law of the parties if they marry according to their personal law. Non-compliance will render the marriage null and void. For example Hindus may marry in accordance with the ceremonies prescribed under Hindu law or the customary ceremonies. Under Muslim law proposal and acceptance in the same meeting is required along with the requirement of witnesses. However this varies under Shias and Sunnis with the requirement of witness not necessary in Shia marriages. Among Christians a marriage may be solemnized by a Minister of Church or in the presence of a marriage registrar along with the requirement of witnesses. The parties must declare to each other to take as husband and wife. A Parsi marriage to be solemnized requires Ashirbad form by a Parsi priest in the presence of two Parsi witnesses. Amongst Jews Katuba a written contract and witnesses is required. The foreign Marriage Act 1969 governs consular marriages between an Indian national and foreigner or between two Indian nationals abroad. It requires the presence of witnesses and declaration in the presence of the marriage officer to take each other as husband and wife.formally valid in accordance with the law of the place where it took place then the marriage would be valid everywhere.The reverse is also true that is if the marriage is no marriage in the place where it is celebrated then it is not a marriage anywhere although the ceremony if conducted in the place of the parties domicile would be considered to be a marriage. Also the application of the law of the celebration of marriage to the formalities of marriage will not be disturbed even if the sole object of the parties in celebrating the marriage abroad is to evade some requirement of their domicile law.(Simonin v Mallac). The ceremonies which should be performed is entirely governed by the local law where it is celebrated. Thus a marriage performed by cohabitation or being known as living as husband Wife may also be formally valid. English law No marriage in England is formally valid unless it complies with the requirements of English law laid down in Marriage Act 1949 (amended). However there is an important element that whether a particular rule in the place of ceremony is of formal validity of essential validity. Some matters may seem clearly to be formal in character such as whether a religious or civil ceremony is required, the time and place of the ceremony, the persons by whom the marriage ceremonies may be conducted, the need for witnesses, registration of marriage, prior notification of ceremony. For example a rule which permits a marriage by proxy must be classified as formal as it is concerned with the manner in which the marriage ceremony may be performed though if a woman domiciled and resident in England executes power of attorney appointing X to act as a representative in the celebration of a marriage between her and Y in a country where marriage by proxy is recognised and the ceremony is in fact performed, the marriage will be valid formally. Marriage which is initially invalid by local law will be recognised if it is subsequently by validated by local legislation(Starkowski v A.G) However in certain matters such as parental consent there is a difference across legal systems English law classifies this as a question of formal validity. Exceptions to the general rule in English law ‘There are two statutory exceptions and one common law exception to the rule that the law of the place of celebration governs formalities Statutory exception Prior to the adoption of the Marriage( Same Sex couples) Act 2013 the two statutory exceptions were contained in The Foreign Marriages Act 1892. The 1892 Act was repealed by section 13 (2) of the 2013 act and in its place schedule 6 of the 2013 act has effect. Schedule 6 pertains to marriage overseas such as with marriages in British consulate overseas, certificates of no impediment to facilitate Overseas marriages and civil partnerships under the local laws and marriages on armed forces bases overseas. © Consular marriage or a marriage of a member of British forces serving abroad contracted under these statutory provisions is formally valid in England regardless whether it complies with the law of the country where the marriage was celebrated.live together and husband left for France and wife for England. On the petition of the wife in an English court for a decree of nullity on the ground of lack of consent the English court passed decree in her favour on the basis of lack of capacity under her prenuptial domicile. Age of the parties: Also has been characterized as a matter of essential validity and differs from country to country. In Pugh v Pugh, marriage between a domiciled English man and a domiciled Hungarian 15 year old girl was held as void. Prohibited Degrees of relationshij Marriages within prohibited degrees of consanguinity and affinity have been considered void under the English law. In Mette v Mette German domiciled in England married in Germany after the death of his wife, his wife's sister who was domiciled in Germany and whose marriage was held as void. CERTAIN EXCEPTIONS © The validity of a marriage celebrated in England between persons of whom one has an English and other a foreign domicile is not affected by an incapacity though existing under the law of such foreign domicile does not exist under the law of England.(Sortomayor v De Barros). However it may lead to limping marriages which may be valid in England but not in the country of the domicile of one spouse. In some the cases the law of place of celebration was also taken into consideration in addition to the law of domicile or intended matrimonial home for determining the essential validity of marriages. This is so especially where the place of marriage is the forum So a marriage celebrated in England is possibly not valid if either of the parties is under English domestic law under an incapacity to marry the other. © Where a foreign domiciliary law governs the capacity of the parties to marriage, it will not be recognised if it is repugnant to public policy * Also different choice of law rules may be applied to different issues of essential validity so as to enable the courts to retain flexibility necessary to reach just results in difficult cases. © Marriage is not valid if either of the parties being a descendant of George II marries in contravention of the royal Marriage Act 1772 © Marriage is not invalid on account of of incapacity imposed by the law of domicile of the parties if it is penal in nature. Scott v A-G the two persons domiciled in South Africa were divorced in that country and the law provided that the guilty party could not remarry as long as the other party remained unmarried. The guilty party remarried in England and which was upheld by the English court on the ground that the restriction on remarriage was a penalty. Also in recent years consideration has been given to other approaches such as real and substantial connection (Vervaeke v Smith), Alternative reference( marriage regarded as validMARRIAGE Marriage is different from any other type of contract as it creates status, that is of husband and wife, as also the status of legitimacy on children of marriage. Marriage can be a contract, a sacrament, soluble indissoluble or a mixture of contract and sacrament, Under the English law marriage is defined as a voluntary union for life between one man and ‘one woman to the exclusion of others( Hyde v Hyde). This notion gives rise to problems in polygamous marriages, All monogamous marriages whether Christian or non-Christian were recognized. Also the marriage need not be permanent marriage. What was necessary was that at time of marriage it must be indefinite in duration and may even be dissoluble in future. Also the date for considering whether marriage polygamous or monogamous is not date of marriage but date on which proceedings for matrimonial relief are filed. Note on Polygamous Marraiges The extreme view in Harvey v Farnie was that polygamous marriages cannot be recognised for any purpose, Historically polygamous marriages were not recognised even if they were potentially polygamous, Even if personal law permitted monogamy but also allowed concubines then still considered to be polygamous marriages. If personal law does not permit polygamy but person marries at place where polygamy was allowed then also marriage was not recognized in England. As per Matrimonial Proceedings( Polygamous Marriages) Act 1972 polygamous marriages outside England between English party (both or one) domiciled in England will be void even if potentially polygamous. The modern English law now gives full recognition to. polygamous marriages.( Baindail v Baindail ) Indian domiciled Hindu having a wife married an English domiciled English girl. English girl petitions for nullity of marriage on the ground that at the time of marriage already had wife living. English Court granted the petition. Recognition of marital status being universal the court would recognise marital status of even polygamously married persons but not for all purposes. In Sinha Peerage Claim case, the children of potentially polygamous marriage of an Indian domiciled Hindu was recognised as legitimate and entitled to inherit the English peerage. In Ali v Ali the potentially polygamous marriage converted to a monogamous Union on acquiring a domicile of choice in England as law of domicile of choice did not permit polygamy. The Matrimonial Proceedings( Polygamous Marriages) Act 1972 empowers court to grant matrimonial relief two parties whose legal system permits polygamous marriages irrespective whether the marriage is polygamous or potentially polygamous. However a valid polygamous marriage is not a sufficient first marriage to support an indictment for bigamy. ‘Some purposes for which Polygamous marriages will be recognized