Approaches to choice of law: marriage

Question 1

Validity of a marriage: traditional approach

Answer 1

Validity is governed by the law of the place where the marriage was celebrated, i.e., the place of the ceremony.

But a court may refuse to recognize a marriage if it violates a particularly strong public policy of the domicile of either party.

Question 2

Validity of a marriage: Second Restatement approach

Answer 2

A marriage that is valid where celebrated will be valid everywhere—unless it violates the public policy of the state with the most significant relationship with the parties at the time of marriage.

The state with the most significant relationship with the parties is usually the state of domicile.

Question 3

Incidents of the marriage: First Restatement

Answer 3

The First Restatement distinguishes the validity of a marriage from the incidents of marriage.

Incidents of marriage are rights that come from marital status, and they are determined by the law where they are sought to be exercised:

• A state may recognize some incidents of marriage but not others;
• A state may refuse to recognize the validity of a marriage yet still enforce the incidents.

Question 4

Marital property: immovable property

Answer 4

Immovable property generally is governed by the law of the situs.

Question 5

Marital property: movable property

Answer 5

Movable property generally is governed by the law of the state where the couple was domiciled at the time of acquisition.

Question 6

Marital property: community property

Answer 6

Community property remains community property even if moved to a non-community property state.

If marital funds or property are used by a spouse to acquire property in another state, the acquired property has the same character (including community property) as the funds or property used to acquire it.

Question 7

Premarital agreements: Second Restatement approach

Answer 7

In determining the enforceability of a premarital agreement, most states apply the law of the state with the most significant relationship to the matter at hand.

When determining which state has the most significant relationship, the forum court generally considers:

(1) the “connecting facts” or contacts that link each jurisdiction to the case, e.g.:

(a) The locations of the spouses;
(b) The locations of the marital assets;
(c) The location of the separation;
(d) The location where the premarital agreement was executed;
(e) The location of the marriage ceremony;
(f) The locations where the spouse had children; and
(g) The location where the spouses lived the longest during the marriage.

(2) as well as the seven policy principles that are set forth in the Second Restatement.