INTRODUCTION

The concept of Private International Law is the rules voluntarily chosen by given states for the

decision of cases which have a foreign complexion. Where it has involved foreign transactions or

individuals from foreign domicile states, that a legal issue may arise the Private law is applicable

before the forum court.

With Reference to the Concept of Marriage has been defined in section 9(1)1 of the Law of

marriage Act Cap 20 of 1971 (R.E 2002) as a voluntary union between a man and women

intended to last for their joint lives. In the landmark case of Hyde v. Hyde2 the Lord Penzance,

Prescribed that,

‘’Marriage as understood in Christian dome may be defined as the voluntary union for life, of

one man and woman to the exclusion of others”.

Therefore, the term marriage is a wide term, which has discussed not only nationally but also

internationally. In broader sense Marriage is a legally and socially sanctioned union, usually

between a man and a woman that regulated by laws, rules, customs, beliefs and attitudes that

prescribe the rights and duties of the partners and accords status of their offspring. Under this

definition, we observe that, three elements must be present in a legal marriage. First, Marriage

must be voluntary, it must be intended to last for life and it must be heterosexual that is to say

the Marriage must be opposite sex3.

Therefore, With reference to the Private International Law in the world, the marriage issue is one

of the most issues to be considered and the forum court most entertained this matter that has

foreigner elements. In entertain that matter before the forum court, the court merely passing

1
Marriage Act 1971.
2
Hyde v. Hyde (1866).
3
Colbert v. Colbert
through various theories explaining the development of Private International Law to entertain

that matter before him. That theory includes the theory of vested or Acquired Rights, The local

law theory, and The American Revolution theory4.

More importantly, When the forum court determine the issue of marriage which have the

foreigner element the forum court merely fall under the last theory of the American Revolution

theory, which basically describe much or make analysis of issues in individual cases (marriage

issue) which require the court to examine the particular substantive rules of law in conflict in the

case before the forum court.

Moreover, The American Revolution Theory provides analysis of issues in individual cases

which require the court to examine the particular substantive rules of law in conflict in the case,

to identify the cause of Actions and to resolve any conflict so identified by choice of law rules

appropriate to that narrowly defined under the conflict. Also, this Theory may raise incidental

question that help the forum court on using appropriate choice of law before entertain a case.

MAIN BODY

Therefore, in relation to the fact that capacity or essential validity of marriage 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-matter to which shall return. Therefore,

we argue that before the forum court to entertain matter related to Private international law there

are key traditional rules to uphold related to marriage capacity as prescribed here under;

4
Principles of Conflict of law, Author-George Wilfred Stumbles , 2nd Edition
  Formal Validity of the Marriage; Formal validity it concerned with the law of place

where marriage is performed, which governs the ceremony, and procedures of the

marriage. This rule governing this validity of marriage known is as Lex loci celebrationis

which means, the law of the country where the marriage is celebrated. In simple word is

that, if a marriage contracted in certain place, the law that will govern the said marriage

will depend on where that marriage contracted. In addition, there is common maxim

under Private international law which assert that, Locus Regit Actum, which mean that an

act governed by the law of the country where the marriage is celebrated. 5Therefore, in

event that the marriage contract concluded in one state but the obligation concluded, the

applicable law under Private international law is the law that contracted the marriage and

assigned it. This cemented under the case of PRITCHARD V. NORTON (1968) the court

held that,

‘’The rule lex loci apply to invalidating of the contract, as well. if the contract was legal or
illegal in the place that created it became illegal or not everywhere based on element of natural
justice. under this notion there is exception that No nation can be bound to enforce contracts that
would be considered injurious to the citizen or public interest’’

In addition, the case of Berthiaume V Dastous,6 where in this case two Roman Catholic

domiciled in Quebec was married in France in a Roman Catholic Church. Owing to the

carelessness of the priest who married them, there was no civil ceremony as required by French

law. So due to this the court held that the marriage was void. In cementing this lord, Dunedin

says that

“As regard marriage, putting aside the question of capacity, locus regit Actum. If a marriage is
good by the laws of the country where it is affected, it is good all the world over, and if the so

5
www.oxfordrefence.com.
6
1929 UKPC 73.
 called marriage is no marriage in the place where it is celebrated, there is no marriage
anywhere”

 Essential validity of the Marriage or Capacity to marry governed by Lex Domicil of

the parties; The general rule in the private international law governing capacity of

parties to marriage is Lex Domicil of the parties to marriage. The doctrine of domicile it

identifies a person, in cases having a foreign element, with a territory subject to a single

system of law, which is regarded as his personal law. There are several misconception

about the issue of domicil on whether it Nationality or residence but the general view is

the permanent home. Therefore, under Private international law the validity of marriage

may be determined by the domicil of the parties to marriage. Under English private

international law there are four general rules in respect of domicile of the parties to

marriage;

 No person can be without a domicile

 No person can at the same time have more than one domicile

 An existing domicile is presumed to continue until it is proved that a new domicile has been

acquired.

 Domicile denotes the connection of a person with a territorial system of law.

Note been, under Private international law the domicile of the Parties to marriage may classify in

to three classes which include Domicile of Origin, Domicile of Choice, and Domicile of

dependence. Therefore, this made an effect that; the parties to marriage under the forum court

may look the validity of the parties and choice of law by looking the domicile of the parties to

the case. This cemented under the case of Kedar Pandey v. Narain Bikram sah [1966]
 ‘’every child Acquires at birth a domicile of origin based on that of his father if the child is
legitimate, and that of the mother if the child is illegitimate. The decision relies, though this
proposition made under private international law on English decisions on conflict of laws’’

On second hand of these Question, After looking the Traditional rule regarding the essential

validity of the marriage issue under Private international law, Also we prefer the American

revolution theories in relation with the theories of the Private International law associated with

the marriage matter in Private international law as mentioned here under.

There are two theories under the American Revolution theories associated with the rules of

Marriage of Private international law that guides the forum court to entertain the matter that has

foreign elements before the forum court;

 The dual domicile Theory

This is the first theory of essential validity, of which according to this doctrine the law of each

party’s domicile at the date he gets marriage is highly considered. For the marriage to be valid,

each party must have capacity by the law of his or her domicile to contract the marriage. The

doctrine of domicile it identifies a person, in cases having a foreign element, with a territory

subject to a single system of law, which is regarded as his personal law. There are several

misconception about the issue of dual domicile on whether it Nationality or residence but the

general view is the permanent home7. Therefore, under Private international law theory the

validity of marriage may be determined by the domicile of the parties to marriage before the

forum court. There, General rules that, the marriage must be valid by the law of domicile of both

parties. This rule has got some advantage on dual domicile theory that refers essential validity to

the law, which, up to that time, has governed the personal status of each party. In terms of

7
Dicey: Conflict of Laws, 6th (End), p 78
principle, it is appropriate that people be governed by the law of their existing domicile. Note

been, under Private international law the Dual domicile of the Parties to marriage may classify in

to three classes which include Domicile of Origin, Domicile of Choice, and Domicile of

dependence8. Therefore, this made an effect that; the parties to marriage under the forum court

may look the validity of the parties and choice of law by looking the domicile of the parties to

the case. This cemented under the case Pugh V Pugh[1951]9 this is another judicial decision,

which support the dual domicile doctrine in which a British army officer, domiciled in England,

married in Austria a girl aged 15 who domiciled in Hungary. The wife had capacity to marry

under Hungarian law. However, under the English law a marriage solemnized between persons

either of whom is under the age of 16 shall be void.

“Therefore, in that essence English court held that, the marriage was void,”

In addition ,under this theory pinned under case of Mohamed V Knott[1968]10 in this case a

man of 26 and a girl of 13 both domiciled in Nigeria, had a married each other there, and come to

England 4 month later, where they were to live while the husband was a student. On this

situation, the court has to decide whether such marriage was valid

“The English court accepted that the marriage was valid, because the wife was old enough by

Nigerian law, even though she was much too young by English law”

 The intended matrimonial home Theory

This theory the capacity to marriage is governed by the law of the countries where the parties at

the time of marriage intended and did actually establish their matrimonial home, in many cases

8
Paras Diwan: Private International Law,4th (End), Deep & Deep Publication, p145
9
[1951] 2 ALL E.R.680.
10
[1968] 2WR 1446.
this is considered will be in the country where the husband is domiciled at the time when he

intended to establish the permanent home. On other word this theory or law it depend where the

parties at the time of marriage intended and did actually establish their matrimonial home. This

theory known as Cheshire theory.11 The main advantage of this doctrine is that, it allows the

validity of marriage to be tested by the choice of law of the certain country where parties

establish matrimonial home and most affected by and interested in the marriage. Therefore, the

court forum under this doctrine of matrimonial domicile choice the law that the property

allocated to enforce matter before him.

This cemented un12der the case of WELCH v. TENNENT (1891), House of lord held that,

‘’There can be no doubt that the rights of the spouses regarded to the property must be regulated

by the law of the matrimonial domicile. it is equally clear that their rights in relation to heritable

estates are governed by the law of the place where it was situated’’

It is important to note that, presumption is rebutted, if it can be inferred that the parties at the

time of the marriage intended to establish their home in a certain country and that they did in fact

establish it there within a reasonable manner. But this theory has many advantage, since it allows

the forum court the validity of marriage to be tested by the choice of law of the certain country

where parties establish matrimonial home and most affected by and interested in the marriage.

CONCLUSION

General speaking ,Basing on what we have discussed above, we sum up by stipulating that, it is a

true that, there are three fundamental incidental questions, which may arise in the cause of

examining a civil legal issue relating to Private international law, which has foreign complexion.

11
Private international law, Author- Cheshire and North’s, oxford publication, p64
12
Welch V. Tennent (1891),
These are questions as to jurisdiction of the court of forum, recognition and enforcement of the

foreign judgments, and choice of law. However, it should stick in our minds that, before the

court of forum decide a correct choice of law to guide a case at hand it first has to classify the

problem, the forum court will choose which proper theory can be used to entertain matter

amicable and justice. On the essence that, they preserving all rules and factors related to Private

international law in the world with reference to the theory of international law.
 REFERENCE
Books:
 Cases and materials on Private International Law, Author – J.H.C Morris.

 Conflict of Laws, Atul M Setalvad, Lexis Nexis Butterworths Wadhwa, Nagpur, 1st
Edition, Reprint 2011, Page 342.

 Principles of Conflict of law, Author-George Wilfred Stumbles , 2nd Edition.

 The Conflict of Laws, Author- David mc clean, 4th Edition.

 Conflict of Law, Author – Eugene F. Scoles, West publishing Co, 2nd Edition.

 Private international law, Author- Cheshire and North’s, oxford publication.

CASE LAW
 Hyde V.Hyde[1866] LR 1.P &.130
 Berthiaume V Dastous[1929] UKPC 73
 Mohamed V Knott [1968] 2WR 1446
 Pugh V Pugh[1951] 2 ALL E.R.680
 Welch V. Tennent (1891)

STATUTES
 The Law of Marriage Act Cap 29 R.E 2010
MUSLIM UNIVERSITY OF MOROGORO

FACULTY OF LAW AND

SHARIAH

COURSE NAME : PRIVATE INTERNATIONAL LAW

COURSE CODE : LW 4102

INSTRUCTOR : MR. SHAIB

PARTICIPANT : SULEIMAN S. MRISHO

REG NO : 2018-04-02911

TASK : INDIVIDUAL ASSIGNMENT

QUESTION

“The fact that capacity or essential validity of marriage as a term, encompasses a wide
range of matters does not necessitate the conclusion that the conclusion that all matters
of capacity should be subject to the same choice of law rule-matter to which shall
return.”

With aid of decided cases, discuss the above assertion and in your arguments, describe the
theories associated with.