Choice of Law in Consistorial Proceedings (L13)

Question 1

Which law do the Scottish and English courts tend to prefer to apply?

Answer 1

Display clear preference for application of the lex fori on grounds of clarity, convenience and expense.

Zanelli 1948.

Question 2

How do EU Member State divorce rules differ?

Answer 2

The divorce rules of EU Member States in their substance differ in character from liberal (Scandinavian countries) to more conservative (Ireland; Malta).

A forum at one end of the spectrum might find policy difficulties in awarding (or withholding) divorce in accordance with a law at the other end.

Question 3

How has EU harmonisation of divorce laws been progressed?

Answer 3

The UK chose NOT to participate in EU harmonisation of choice of law rules pertaining to divorce and legal separation.
Nonetheless … by means of ‘enhanced cooperation’ procedure, some EU Member States decided to proceed with a harmonised approach to applicable law in divorce, sub nom. Rome III.
Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia, Spain.
Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.

Question 4

When does Rome III apply?

Answer 4

Rome III applies only in participating EU Member States, from 21 June 2012.
Rome III does not apply to marriage annulment.
UK was NOT a participating country. Rome III never applied in the UK.

Question 5

Which piece of legislation governs nullity of marriage in Scotland?

Answer 5

Family Law (Scotland) Act 2006, s38.

Question 6

What are the potential defects leading to nullity of marriage under the Family Law (Scotland) Act 2006?

Answer 6

Form.
Incapacity.
Lack of consent.

Question 7

What is the law for the defect of form leading to nullity?

Answer 7

Scots forum must apply lex loci celebrationis.
S38(1).
(e.g., at common law, Berthiaume v Dastous; Apt; Ponticelli; A v K; Starkowski).

Question 8

What is the law for the defect of incapacity leading to nullity?

Answer 8

Apply immediate ante-nuptial domicile of party alleged to lack capacity (subject to FLA 1986, s50).
S38(2).
(e.g., at common law, Brook; Mette; Paine; Cheni).

Question 9

What is the law for the defect of lack of consent leading to nullity?

Answer 9

Apply immediate ante-nuptial domicile of relevant party.
S38(2).
(e.g., in England, Coventry City Council v MK).

Question 10

What are the complexities for choice of law in marriage?

Answer 10

For the choice of law issue to arise, the applicability of a foreign law must be argued and its content proved.
Since there are many subtle differences between the substantive content of domestic laws of nullity, proof of foreign law is particularly important.

The distinction between void (ab initio) and voidable (valid until annulled) marriages is not known in all private law systems.

Question 11

How does H v H [1954] show altruism providing lack of consent?

Answer 11

Marriage of expediency.
Woman domiciled in Hungary. Married a French domiciled man, just to get a passport so she could leave Hungary.
Left for England, she raised the nullity action.

Question 12

How does Szechter [1971] show altruism providing lack of consent?

Answer 12

Polish professor married a young family friend.
She wanted to be extradited from prison.

Question 13

What is the distinction between arranged and forced marriages?

Answer 13

Forced marriages are arranged but LACK consent.
An arranged marriage can involve consent though.

Question 14

How does Mahmood (1993) show forced marriages providing lack of consent?

Answer 14

Judge did not explicitly refer to the law of the domicile.
Girl subjected to marriage without her prior knowledge.

Question 15

How does Mahmud (1994) show forced marriages providing lack of consent?

Answer 15

Pressurised by family to marry his cousin in Pakistan.
The force applied was of an unreasonable nature.

Question 16

What does the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 provide?

Answer 16

Protected person can seek a Forced Marriage Protection Order. Or a local authority can seek it for them.
Breaching an Order is an offence!!

Question 17

How does City of Edinburgh Council v S (2015) show when a Forced Marriage Protection Order may be granted?

Answer 17

Order that parents refrain from any contact that could force 13 year old daughter into a marriage.
Social workers + taking away her passport.
Risk was inferred from what had happened to her 2 older siblings. Older sister said she was forced to marry at 16. Sheriff noticed that the older sister was estranged from her sister. Another older sister, brought the matter to the attention of the council.
No evidence that this sister had been forced into marriage either.

The young girl opposed the granting of the order.
No evidence of an actual planned marriage. Legislation didn’t require this.
NOT granted.

Question 18

How does Akram (1979) show a sham marriage providing lack of consent?

Answer 18

Pakistan domicile + Scottish domicile. Cousins.
Marriage arranged by parents.
Woman said she didn’t consider herself to be bound. Her religion only accepted religious ceremonies.
They had a subjective reservation.

Question 19

How does Hakeem v Hussain (2003; on appeal 2006) show a sham marriage providing lack of consent?

Answer 19

Young woman of Muslim faith. Sought nullity of marriage to Pakistani husband.
They married in a civil ceremony in Scotland.
If the man could persuade the immigration authorities that he was married then he could remain in the UK. But they agreed not to live as man and wife until she had left school and they underwent a religious ceremony. Defender got permission to live in the UK and the following year he got indefinite leave to remain in the UK. After this, he decided he didn’t want to go through with the religious ceremony.
She argued the civil ceremony was just a precursor to the religious ceremony.
Argued neither of them had properly consented to the civil marriage.
CSIH granted the nullity.

Question 20

What remedies are available for null marriages?

Answer 20

S23(2) FL(S)A 2006.
S2.
- Imposing in effect ‘mandatory rules’ of the Scots forum, where the marriage was solemnised in Scotland.
Note: s20(A)(4).
- If an individual purports to consents to marriage it can’t be declared void just because they have some tasset reservation.

Question 21

What are the complexities for choice of law in nullity?

Answer 21

For the choice of law issue to arise, the applicability of a foreign law must be argued and its content proved.
Since there are many subtle differences between the substantive content of domestic laws of nullity, proof of foreign law is particularly important.
The distinction between void (ab initio) and voidable (valid until annulled) marriages is not known in all private law systems.