Marriage

1) What is the formal validity of a marriage? What law governs formal validity? What are
the exceptions to the Lex Loci Celebrationis rule?

Hyde v Hyde : At common law, marriage is ‘the voluntary union for life of one man and
one woman, to the exclusion of all others

Brook v Brook

HELD : a marriage celebrated during a temporary residence in Denmark between an

English widower and the sister of his deceased wife, being null and void is not valid,
although by the law of Denmark marriages are permitted between persons so related by
affinity

capacity to marry is regulated by the law of the domicile (lex domicilii) and the form of
the marriage is to be regulated by the law of the country in which it is celebrated (lex
loci celebrationis).

Formalities of the marriage include the nature of the ceremony, the parties to be
present at the ceremony and the person officiating.

The basic rule is that the formal validity rules of the country where the marriage is
conducted must be followed if the marriage is to be deemed valid.

Berthiaume v Dastous :

FACTS : The spouse who were domiciled in Quebec, were married in a Roman Catholic
church in France. The marriage was void by French law because, owing to a mistake by
the priest, it had not been preceded by a civil ceremony. Eventho by the law of Quebec a
religious ceremony alone was sufficient, the PC held the marriage is void

HELD : 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 proceeding would or would not constitute
marriage in the country of the domicile of one or other of the spouses. If the so-called
marriage is no marriage in the place where it is celebrated, there is no marriage
anywhere, although the ceremony or proceeding if conducted in the place of the parties’
domicile would be considered a good marriage.

Section 104 LRA : Marriages outside of Malaysia are valid if they are recognized by the
law of the countries where the marriages have taken place.

EXCEPTION

- Marriage at the embassy (with the permission of the country of origin of the
marrying parties).
- Where there is insuperable difficulty to follow the law (not mere inconvenience):

> Lord Clumcurry: the marriage was still valid even though it did not follow local laws because of the
insuperable difficulty. The difficulty cannot be mere inconvenience, it must be impossible.

–Where the party is a member of the military force in an occupied country:

> When you are at the enemy state, you do not need to follow the enemy state’s law of marriage,
you just follow your own country’s law of marriage.

>Taczanowskav Taczanowski, Kochanski v Kochanskaexception extended to refugees; Merkerv

Merkerthe exception was said to be only applicable during war time, and it is available to be used
by the soldier (actual member of military), or a member of the resistance force (civilian who took up
arms) or escaped prisoner of war.

2) Elaborate on the Dual Domicile test and the Intended Matrimonial Home test.

3) State the weaknesses of the Dual Domicile test and the Intended Matrimonial Home
test. What are the other possible tests to determine capacity and what are their
weaknesses?

4) Zane, an 18 year old Grab driver is domiciled in Gotham City and he meets and falls in
love with Lara a 15 year old blogger from Lala Land. After a heady romance they decide
to go on a holiday to Tanah Cintan and in an impulsive move they decide to get married
right away. Their marriage is conducted in a Lala Land religious ceremony. They then
move to live in Jollyland.

By Lala Land law a person can legally marry if they are above the age of 12, but by
Gotham City law you have to be at least 16 before you can marry, by Jollyland law you
can marry anyone as long as they are above 10 years of age. In Tanah Cintan u can marry
if you can read the ABC.

Two years later they find out that all marriages conducted in Tanah Cintan by foreigners
must be conducted in the Tanah Cintan traditional customary form otherwise it will be
deemed void.

Upon hearing this, Zane feels that he is not actually married to Lara so he leaves her and
goes fooling around with other girls. He doesn’t provide Lara any money or care because
he says, “She is not legally my wife”.

Advise Lara.

How would your answer differ if Lara was domiciled in Tanah Cintan?

How would your answer differ if the marriage was conducted in Malaysia?
Polygamy, Classification, Incidental Question and Matrimonial Causes

1) Han is a chef at a Michelin star restaurant in upstate London. At a luncheon that his
restaurant hosted he meets Ana, a Brazilian girl and falls in love with her. Their
wedding was conducted at the restaurant itself in a grand manner. It was a perfectly
legit ceremony. During a holiday in Barbados they got into a fight about Han’s
cooking skills when Ana said that he made the worst guacamole she had ever tasted,
and with that they got a divorce right away.

Three years later, a girl named Juliette from France enters Han’s life and he gets
taken up by her. According to French law Juliette needs the permission of her
parents to marry a foreigner. She didn’t get this permission but instead moved to
London and married Han there.

After living in London for half a year, Juliette gets a job offer as an insurance broker
for a Scottish company. She accepts the job and moves to Scotland.

Two years later, Juliette finds out that while she has been in Scotland, Han has been
secretly seeing some young waitresses. She also finds out that the Barbados divorce
that Han had was invalid in Brazil although it was valid in London.

Juliette wants a declaration of nullity. You are her esteemed lawyer, advise her
accordingly.

Would your answer differ if Juliette was Malaysian?

2) State the elements required by common law for a Malaysian court to recognize a
foreign divorce. Are there any differences between those rules and the English
Family Law Act 1986? If yes, state them.

3) Camillia Anand is a Malaysian girl from Taman Tun. After finishing fashion school, she
gets a stint as a model where she got to travel the world for a year. While in
Argentina she meets Darryl, a local charismatic (but married) journalist and they fall
for each other. They subsequently get married according to Argentinian custom
which allows for polygamy. They decide to live in the Maldives, a Muslim country.
What is the status of their marriage?