Choice of Law Rules Pertaining to Marriage (L11)

Question 1

What are the three considerations as to whether the forum will recognise a foreign marriage?

Answer 1

Nature of the relationship.
Formal validity of the marriage.
Essential validity of the marriage.

Question 2

What is the lex loci celebrationis?

Answer 2

The law of the place where the marriage is celebrated.

Question 3

Why is the nature of the relationship important?

Answer 3

In order to determine whether a marriage is valid, the forum must determine the nature of the relationship. Only a valid marriage can be subject to the choice of law rules.

Question 4

How did Lord Penzance define marriage in Hyde v Hyde & Woodmansee (1866)?

Answer 4

“… The voluntary union for life, of one man and one woman, to the exclusion of all others”.
“There is no magic in a name … if the relation there existing between a man and a woman is not the relation … we recognise by the words ‘husband’ and ‘wife’, but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same”.

Question 5

How might the nature of the marriage vary depending on forum?

Answer 5

Just because something is recognised abroad as a ‘marriage’, this does not mean the UK courts will treat it as such.
Characterising a relationship as a marriage is a job for the forum. They should do this in an enlightened sense.
The nature of a union as constituting a marriage for the purpose of English or Scots law will be determined by the forum.
Lee v Lau (1967).

Question 6

How does the case of Nachimson (1930) show a ‘potentially lifelong’ union?

Answer 6

The ‘husband’ could unilaterally bring it to an end.

The ease of dissolution does not conclusively mean it is not a valid marriage.

Question 7

What does the ‘one man and one woman’ part of Lord Penzance’s speech matter?

Answer 7

Before 2014 —– Civil Partnership Act 2004.
No person had the capacity to enter into a same-sex marriage. The law of one party’s domicile or the lex loci celebrationis do not matter if one party is from Scotland.
Since 31/12/14 ——– Marriage and Civil Partnership (Scotland) Act 2014.

Changes in the domestic laws of marriage in Scotland and England, respectively, have had significant repercussions in IPL terms.

Limping status — one’s legal status is not the same throughout the world e.g. not considered to be married in some legal systems. Universal status is ideal.
Note: some countries including EU states where same sex marriage is still not legal.

Question 8

What is the significance of ‘to the exclusion of all others’ in Lord Penzance’s definition?

Answer 8

Special rules for polygamous marriages.
UK courts for some purposes have recognised these marriages. Only where one of the parties to the marriage have a connection to that overseas legal system.

Question 9

Which issues are covered by formal validity?

Answer 9

Residence requirements; notice periods; need for witnesses; permitted celebrant etc.

Question 10

Which issues are covered by essential validity?

Answer 10

Legal capacity, e.g. mental capacity; age; consanguinity (e.g. not incest); affinity (e.g. can’t marry your in-laws).

Physical capacity, e.g. impotency.

Question 11

What is the rule in Scotland for which law governs a marriage (after 4th May 2006)?

Answer 11

Family Law (Scotland) Act 2006, s38(1).
Governing law is law of the place where the marriage was celebrated [i.e. lex loci celebrationis].

Question 12

What is the rule in England (in Scotland before 2006) for which law governs a marriage?

Answer 12

Principle of locus regit actum.
The law of the place governs the act.

Question 13

What are the facts of Berthiaume v Dastous [1930] AC 79?

Answer 13

Respondent was a Catholic woman, domiciled in Quebec. Met the appellant, also Catholic and domiciled in Quebec, but he was living in Paris.
They went through a Catholic marriage ceremony.
She brings divorce actions in a French court.
She was asked to produce the civil certificate of marriage. The document from the ceremony was not actually the correct civil certificate. Merely a notice of intention to marry. Never gone through the correct civil ceremony before the religious ceremony. This was a requirement of French law.

In Quebec, she requested a declarator of marriage so she could get the relationship ended.
English court, on referral, stated that since it wasn’t recognised in French law, it would not recognise it either.

Question 14

What is the useful quote from Berthiaume v Dastous [1930] AC 79 about the formal validity of marriage?

Answer 14

“If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the ceremony which constituted marriage … would not constitute marriage in the country of the domicil of one or other of the spouses.”

Question 15

What does the Apt case tell us about formal validity?

Answer 15

Woman represented by a proxy at the marriage in Argentina. She was informed the marriage had taken place, wished to return. Husband turned her down. She requested a decree of nullity.
Question of whether the proxy marriage was valid, is a matter of form. This must be determined by Argentinian law.
The marriage was valid by Argentinian law so it was valid in the eyes of the English courts.

Question 16

What is the importance of time in formal validity?

Answer 16

Assess formal validity at the date when it is called in issue (as opposed to the [earlier] date of celebration of the purported marriage).

Question 17

What are the facts of Starkowski v AG 1954?

Answer 17

Christopher brings action seeking a declaration that his parents were validly married, to know his status on whether he was legitimate.

Mother gone through a previous Catholic marriage in Austria. Both lived in Austria but both Polish nationals domiciled in Poland.
At the time they married, Austrian law only recognised civil ceremonies.
Months after they married, Austrian law provided for retrospective validation of civil ceremonies by registering.
Had a daughter. But they separated. She then acquired an English domicile.
Met Christopher’s father. She gave birth to him. After this, without her knowledge, she registered her marriage to the first man.
Months later, she marries the father in England.
Only one of the children could be legitimate.
Before the second marriage took place, the Austrian authorities had registered the first marriage.

Decided: the second marriage was invalid. HoL said the validity of the first marriage should be viewed AT the time the question arises.

Question 18

What is the HoL authority for applying the lex loci celebrationis AS AT THE DATE OF COMMENCEMENT of legal proceedings?

Answer 18

“Once it is settled that the formal validity of a marriage is to be determined by reference to the law of the place of celebration, there is no compelling reason why reference should not be to that law as it is when the question arises for decision” (Starkowski v AG (1954)).

Question 19

What is the presumption in favorem matrimonii?

Answer 19

Any ‘marriage’ should get the benefit of any change in the law on formal validity

Question 20

What is the question when looking at celebrating marriage ‘remotely’?

Answer 20

Are there then two leges celebrationis, if the parties are in different jurisdictions?

Question 21

What are the facts of A v K (2011)?

Answer 21

Marriage between a UK national woman, resident in Edinburgh, and a man who seemed to be resident in Dubai.
Couple met online. They never met in person at any point.
Marriage over the telephone. A was in Scotland at the time. K was believed to be in Pakistan.
A copy of the marriage certificate was sent to A. It claimed the place of the marriage was Pakistan.
It appeared that the marriage was or at least was intended to be registered in Pakistan.
During the marriage, the celebrant was in Pakistan.
A took the certificate to the Pakistan consulate in Glasgow, he stamped it and returned it to Pakistan.
Later, A seeks a declarator of nullity in a Scots court. Was the marriage valid?

Question 22

What were the questions for the court in A v K (2011) and what did it decide?

Answer 22

Was the marriage valid?
Determined based on the law of the law the marriage was celebrated.
Where was this?
Should the court take a single locality approach or a dual locality approach?
They could say formal validity is satisfied if either of the loci are satisfied.
Took a single approach, the validity criteria in Pakistan was satisfied.
Refused to grant the declarator. Judge said the marriage took place purely in Pakistan.

Question 23

SB v Secretary of State for Work & Pensions [2014] is an English case on remote marriage. What happened in this case?

Answer 23

Claim by a woman for a bereivement benefit allowance.
Before their marriage, he had undergone a telephone marriage with another woman.
Was this first marriage valid?
One party in England, one in Pakistan.
Panel adopted a dual locality approach.

Marriage can only be formally valid if it is valid in the law of both England and Pakistan.
Not valid in England.

Question 24

Coventry City Council v MK [2023] is an English case on remote marriage. What happened in this case?

Answer 24

The judge took a single locality approach.
Marriage conducted on a WhatsApp call. Male domicile in England, he had learning difficulties. Woman domiciled in Pakistan.
Groom lacked capacity to marry.
He was purportedly represented at the ceremony in Pakistan by his grandfather.
The laws of neither England nor Pakistan were satisfied.
The judge held the locus to be in Pakistan alone. The bride was there, there was an attempt to have the man represented there, the one conducting the ceremony was in Pakistan.

Question 25

Family Law (Scotland) Act 2006, s38(2) is valid in Scotland after 4th May 2006, and sets out the dual domicile theory. What is this?

Answer 25

“The question whether a person who enters into a marriage –
(a) had capacity; or
(b) consented to enter into it shall … be determined by the law of the place where, immediately before the marriage, that person was domiciled”.

Question 26

Family Law (Scotland) Act 2006, s38(2) is subject to
s38(3)… What is this?

Answer 26

Protective application of Scots law where marriage takes place in Scotland.

I.e. where a marriage takes place in Scotland, there must also be legal capacity by the Scots lex loci celebrationis.

Question 27

Family Law (Scotland) Act 2006, s38(2) is subject to s38(4)… What is this?

Answer 27

Public policy provision.
The application of the ante-nuptial domicile(s) is subject to public policy.
The provision can operate to strike down on policy grounds both an incapacity imposed, and a capacity conferred, by the law of the domicile.

Question 28

What does it mean to say that the effect of capacity is cumulative?

Answer 28

Each party must have capacity to marry the other.
Hence, in a proposed marriage, e.g of first cousins of different domiciles, each party’s domicile must permit first cousin marriage, for the marriage to be valid in Scots conflict rules.

Question 29

How does Brook v Brook show the cumulative effect of capacity?

Answer 29

Englishman wanted to marry his late wife’s sister, also of English domicile. They wanted to marry in Denmark.
The rule of affinity in Danish law was weak. But it was prohibited by English law.
Capacity to marry is governed by the law of a person’s domicile.
The valid was invalid as to essentials.

Question 30

How does the China case show the cumulative effect of capacity?

Answer 30

Jewish couple, uncle and niece. Domiciled in Egypt.
Came to England when they had been married for 30 years.
Woman asked the court to declare the marriage nul.
English court refused, by the law of each party’s domicile immediately before the marriage, they had capacity to marry.

Question 31

How does Westminster City Council v C show the cumulative effect of capacity?

Answer 31

Man with severely impared mental functioning, English domiciliary. Married a woman of Bangladeshi domicile.
Telephone ceremony.
Court said this young man did not have capacity under his English domicile to marry.

Question 32

Which cases demonstrate application of the dual domicile theory?

Answer 32

Mette.
In re Paine.
Pugh.

Question 33

What is the rule for capacity in England (and Scotland pre-2006)?

Answer 33

Dual Domicile Theory
OR
(Cheshire’s) Intended Matrimonial Home theory:
“The substantial validity of a marriage is governed by the law of the country where the parties intend to live or on the basis of which they agreed to marry”.
Kenward (1950).
(E.g also Radwan; Lawrence).

Question 34

What is the law around the parties’ consent to marry?

Answer 34

A question of essential validity.

Family Law (Scotland) Act 2006, s38(2)(b) (governing law is lex domicilii).

Question 35

What is the law around third party consent to marry?

Answer 35

Before 2006, e.g Simonin v Mallac; Ogden; Bliersbach v McEwan.

Family Law (Scotland) Act 2006, s38(5).
Examine the content and nature of the rule requiring 3rd party consent.