UNIT 6

Marriage, Divorce and Matrimonial Relief

Subject matter

 Nature of Marriage
 Formalities of Marriage
 Capacity to marry
 Consent of Parties
 Polygamous marriage
 Divorce, nullity, and judicial separation
 Legitimacy, Legitimating, and Adoption

Marriage
Laws are quite complex
Persons domiciled in different countries can marry in a third and divorce in fourth
Recognition of foreign divorce decrees
Consideration of Public Policy
Public Policy Grounds
 Prohibition of Polygamous marriage
 Prohibition of Child Marriage
 Incestuous Marriage
 Validity and Nullity of marriage
 Divorce and Partition
 Recognition of foreign divorces
 Co-habitation and Judicial Separation
 Legitimacy of Child-conflicting rule of Legitimacy with foreign country
 Adoption by foreigner-What are the provision and are they sufficient?
 Nepalese Provision
 India/America/UK and other countries
 Is there any convention related with matrimonial relief
Challenges
 No universally accepted concept of marriage
 Monogamy is in many legal system but other legal system recognizes marriage can be
polygamous or polyandrous ( Even in Nepalese culture some community accepts )
 In some country death is the only event which terminates a marriage,
 In some legal system, approve of other method of termination of divorce
 Nature of family law is differs in each society
 These are the creation of Public Policy
 Decision which is against public policy impossible to execute
 Nature of Marriage
• Traditional (as per religious practices followed
• Modern Marriage (civil marriage)
In private International law, if marriage has to be concluded it mainly focus over lex loci
celebrations (where marriage took place)
Country that practices lex parties may not recognizes marriage as valid that is celebrated
where lex domicile occurs and vice versa. For instance, Two persons, French (lex parties)
by domicile, contracted a marriage in london (lex domicile),which though formally valid
as per English law ,but would have been void if tested by French law .
Capacity to Marriage
Capacity to marry ought strictly to be confined to rules which lay down that a particular
class of person lacks a power to marry which other people possess (for instance, rule that
a person below a certain age may not marry).
According to Muluki Ain chapter of marriage, no. 2(9)- In case either a male or female
below the age of twenty years is married and no offspring has been born from the
marriage, the male and female who is below the age of twenty years may get such a
marriage declared void if he or she does not agree with such a marriage upon having
attained the age of twenty years.
Validity of Marriage
Only can be valid if condition be fulfilled as prescribed by law
Age, Consent, No fraudulent, unmarried, Sound mind
Mostly, in any system of law for the validity of a marriage the fulfillment of two
conditions is essential:
Parties to marriage must have capacity to marry
Parties must have performed necessary ceremonies and rites of marriage.
If any of the two requirements is not fulfilled the marriage is void.
• In Pugh vs. Pugh where a marriage was solemnized in Austria between a domiciled
Englishman and a domiciled Hungarian girl who was then fifteen years old. The marriage
was valid both by the Austrian and Hungarian laws. The English court, before which the
matter was brought, held the marriage void. Because capacity to marriage is dealt by law
of domicile.
In practice, however, capacity to marry also includes cases where the reason for the
invalidity, is that such a marriage relationship is objectionable in the eyes of law (for
instance, rules prohibited marriages between relatives of certain degrees)
According to Nepalese Law, marriages celebrated within the prohibited degree of
relationship are punishable and void. If such marriage is concluded, the spouses shall be
separated.
If one has deliberately concluded such marriage, one shall be liable to the punishment set
forth in the chapter on incest. (Chapter On Marriage of Muluki Ain 2020)
 Consent of the Parties
Consent of Parties: Essential matter for validity of marriage and governed by domicile of
the parties. According to Nepalese law, marriages concluded by force without consent of
the parties are void. (No 1 and 9 of Chapter on Marriage of Muluki Ain 2020)
• In UK In the case of H vs. H, a Hungarian domiciled girl underwent a ceremony of
marriage in Hungary with France domiciled boy with sole purpose of getting out of
Hungary. Parties never lived together. Eventually husband left for France and wife for
England. The wife petitioned in an English court for a decree of nullity on the ground that
marriage was void for lack of consent. The court passed decree on her favor.
Polygamous marriage
• In Hyde vs. Hyde, a husband of a polygamous marriage petitioned for divorce in an
English court. The petition was dismissed because the English courts were not prepared
to accord recognition to polygamous unions, and they considered that their matrimonial
jurisdiction could not be made available to such marriages.
• Under Sharia Law, men have up to four wives while women may only have one husband.
The Mormon Church (USA) also allowed polygamy until the late 19th century, when it
renounced the practice and now ex-communicates any members who practice it. South
Africa prohibits bigamy in Civil Marriage, but allows for multiple customary marriages
under the Recognition of Customary Marriage Act (Sec. 2(3)). South Africa's law
requires a husband, who is already in a customary marriage and seeking to enter an
additional customary marriage, to obtain court approval of a contract governing the
"matrimonial property systems of his marriages"(Sec.7(6)
• For more details.. http://www.endvawnow.org/en/articles/625-polygamous-
marriages.html
Also see the provision of Bigamy in Nepalese law
UK
 Marriage
 Civil Partnership
Conditions:
• 16 or over
• free to marry or form a civil partnership (single, divorced or widowed)
• not closely related

• Only same sex couples can form a civil partnership.

There will be no change to the rights and status of EU nationals living in the UK, nor UK
nationals living in the EU, while the UK remains in the EU.
Same sex couples
 Can form a civil partnership in England, Scotland, Wales and Northern Ireland
 Can get married in England, Scotland and Wales
 Can convert your civil partnership into a marriage in England, Scotland and Wales
Also check….. Getting married or forming a civil partnership abroad and
Marrying in England or Wales if you live abroad
Marriage Law in USA
In the United States, the marriageable age is an issue of state law, not federal. Every state allows
exceptions to their age of marriage. Most states allow marriage at 16 and 17 with parental
consent, and some states also make exceptions subject to judicial approval, or case of pregnancy.
Age of consent to marry Medical exams Marriage license

Max.
Common Age period Scope Waiting Duration of
State Law Age with
without between of period license
Marriage parental parental exam medical before validity
consent
consent and exam license (expiration)
license

Alabama- Title
Yes 16 a, b 18 - - - 30 days
30, Chapter 1

Alaska- Title
No 16 c 18 - - 3 days, d 3 months
25, Chapter 5

Arizona-
Chapter 1, No 16 c (2) 18 - - - 1 year
Article 1

Arkansas- Male-
Title 9, No 17 c, eFemale- 18 - - f -
Subtitle 2, § 11 16c, e

California-
30
Family Code, No b, g 18 - - 90 days
days, d, h
§§ 300-500

Colorado- §§
14-2-105 thru Yes 16 c 18 - - - 30 days
14-2-110

Connecticut-
Title 46b, § No 16 c (2) 18 - i 4 days, d 65 days
815e
Delaware-
Title 13, No Male- 18 - - 24 hours, j 30 days
18 eFemale-16 e
Chapter 1

Florida- Title
43, Chapter No 16 a, e 18 - - - 60 days
741

Georgia- §§
19-3-1 thru 19- No gg 16 e, k 18 - i 3 days, l 30 days
3-68

Hawaii- § 572 No 15 k 18 - - ---- 30 days

Idaho- § 32-
301 thru 32- No gg 16 c 18 - m, n - -
501

Illinois-
Chapter 750, No 16 o 18 - p 1 day 60 days
CS 5, Part II

Indiana- Title
No gg 17 e 18 - q - 60 days
31, Article 11

Iowa- Chapter
Yes 16 k 18 - - 3 days -
595

Kansas-
Chapter 23, Yes 16 c (2) 18 - - 3 days, d 6 months
Article 1

Kentucky-
No 18 k 18 - - - 30 days
Chapter 402

Louisiana-
Title IV,
No 18 c 18 10 days - - -
Chapter 1
(Civil Code 86)

Maine- Title 3
No 16 c 18 - - 90 days
19, Chapter 23 days, d, f
Maryland- §§
48
2-201 thru 2- No 16 e, r 18 - - 6 months
hours, d
503

Massachusetts-
Male- 3-60
Title III, No 18 - 3 days, f 60 days
14 kFemale-12 k days, s
Chapter 207

33 days
Michigan-
No 16 18 - - 3 days, d after
Chapter 551
application

Minnesota-
No 16 k 18 - - 5 days, d 6 months
Chapter 517

Mississippi- Male-17
Title 93, No g, k Female- 30 days t 3 days, d -
Chapter 1 15

Missouri-
No 15 u 18 - - - 30 days
Chapter 451

Montana- Title
Yes 16 k 18 - t - 180 days
40, Chapter 1

Nebraska-
No 17 19 - i - 1 year
Chapter 42

Nevada- Title
11, Chapter No 16 c 18 - - - 1 year
122

New
Male-
Hampshire- 3
No 14 vFemale- 18 - - 90 days
Title 43, days, d, f
13v
Chapter 457

New Jersey- 72
No 16 c, e 18 - - 30 days
Title 37 hours, d

New Mexico-
Chapter 40, No 16 e, u 18 30 days t - -
Article 1
New York-
Domestic
Relations
No 16 v 18 - w 24 hours 60 days
(Chapter 14),
Articles 1 and
2

North
Carolina- No 16 e 18 - - - -
Chapter 51

North Dakota-
No 16 18 - - - 60 days
Chapter 14-03

Male-
Ohio- Title 31, 5
No gg 18 kFemale- 18 - - 60 days
Chapter 3101 days, d, x
16 c, e

Oklahoma- 43- 30
No gg 16 c, e 18 t y 30 days
3 days, d

Oregon- Title
No 17 z 18 - - 3 days, d 60 days
11-106

Pennsylvania-
No gg 16 u 18 30 days t 3 days, d 60 days
Title 23, Part 1

Rhode Island-
Title 15, Ma1e-
Yes 18 - aa - 3 months
Chapters 15-1 18 uFemale-16u
thru 15-3

South
Carolina- Title Yes 16 e 18 - - 1 day -
20, Chapter 1

South Dakota-
Title 25,
No 16 e 18 - - - 20 days
Chapters 1
and 2

Tennessee- No 16 u 18 - - 30 days
3
Title 36,
Chapter 3 days, d, bb

Texas- Title 1,
Subtitles A Yes 16 k, v 18 - - cc 30 days
and B

Utah- Title 30,

Yes 16 a 18 dd - - - 30 days
Chapter 1

Vermont- Title 30
No 16 k 18 t 1 day, d -
15, Chapter 1 days, d

Virginia- Title
No 16 a, e 18 - ee - 60 days
20, Chapter 2

Washington-
Title 26, No 17 u 18 - ff 3 days 60 days
Chapter 4

West Virginia-
Chapter 48, No 18 e 18 - t 3 days, d -
Article 1

Wisconsin-
Chapter 765 No 16 18 - n 5 days, d 30 days
thru 767

Wyoming-
Title 20, No 16 u 18 - i - -
Chapter 1

District of
Columbia-
Division VIII,
Yes 16 a 18 30 days t 3 days, d -
Title 46,
Subtitle 1,
Chapter 4

Male-
Male-
21
Puerto Rico No 18 c, e, uFemale- - t - -
Female-
16 c, e, u
21 e
---- indicates that the authors of this table were unable to locate any information regarding the
topic
(a)Parental consent not required if minor was previously married.
(b)Other statutory requirements apply.
(c)Younger parties may marry with parental consent.
(c) (2)Younger parties may marry with parental and judicial consent.
(d)Waiting period may be avoided
(e)Younger parties may obtain license in case of pregnancy or birth of child.
When unmarried man and unmarried woman, not minors, have been living together as
man and wife, they may, without health certificate, be married upon issuance of
appropriate authorization.
More detail, please visit https://www.law.cornell.edu/wex/table_marriage
India

INDIA

There are different rules and regulations for different religions. For example there are Hindu
Marriage Act 1955, Muslim Marriage Act, and Christian Marriage Act and for the Parsee there is
Parsee Marriage and Divorce Act.

In case of the Hindus, Sikhs, Jains and Buddhists, they are governed by the Hindu Marriage Act,
1955, which provides for the conditions of a marriage where under the bridegroom should be the
age of 21 years and bride of 18 years, they both should not be within the degree of prohibited
relationship.

Divorce under the Hindu Marriage Act 1955 can be obtained on the various grounds.

Muslims also have their own personal law, which states that Nikah or marriage is a contract and
may be permanent or temporary and permits a man four wives if he treats all of them equally.

Similarly for the Parsees there is a Parsee Marriage & Divorce Act, 1939, which governs the
provisions of their marriage and law.

For Indian Christian there is a Indian Christian Marriage Act 1889. Likewise Indian Special
Marriage Act 1954 permits marriages between persons who are not of the same community or
who have different religions or nationalities. The scope of the Act includes the entire territory of
India and extends to intending spouses who are both Indian nationals.

Parties who do not wish to marry in a religious ceremony can instead opt for a civil ceremony
pursuant to the Indian Special Marriage Act of 1954.

Foreigner

In case a marriage between an Indian and a foreign national is to take place in India, generally
it's required to file a notice of intended marriage with a Marriage Registrar of your choice in
India. That notice is required to be published for the stipulated 30 days. At the end of the 30 days
the Marriage Registrar is free to perform the marriage. The notice of intended marriage can only
be given in India, if at least one partner is permanently and the other partner temporarily resident
in India.

If one partner is residing in a foreign country then the partner who is resident in India will have
to fill out the “Marriage Notice” collected from the Marriage Registration Office of his/her
choice in India and send it to his/her partner in the foreign country who will also have to fill it
out. This “Notice” should then be sent back to the partner in India who will have to re-submit it
at the Marriage Registration Office. After the stipulated waiting period of 30 days the marriage
can take place in India. Under the Special Marriage Act, 1954 a certificate showing the
signatures of the persons married, the registrar and the witnesses will be issued. This Certificate
is required as proof of the marriage and when applying for a visa to for a foreign country.

The following documents are required for both the partners:

 a valid Passport
 original Birth Certificate showing parents' names
 if the person concerned is widowed, the original death certificate of the deceased spouse
 If divorced, copy of the final decree
 documentary evidence regarding stay in India of the parties for more than 30 days (ration
card or report from the concerned SHO)

The American citizen who wishes to participate in a civil marriage ceremony may be required to
present to the marriage officer a “no objection letter” from the U.S. Embassy or Consulate, as
well as proof of termination of any previous marriages. Similarly, a citizen of another foreign
country may be required to present to the marriage officer a “no objection letter” from the
Embassy or Consulate of his country, as well as proof of termination of any previous marriages.

In a nutshell, under the Special Marriage Act, the parties generally are required to wait at least 30
days from the date of initial application to formalize the marriage so that the marriage officer can
publish a newspaper ad allowing for the opportunity for any objections to the marriage to be
voiced.

What about Civil marriage of foreigner in Nepal?

Divorce Nullity and Judicial Separation

 Common Grounds of divorce
o Adultery
o Desertion
o Conversion
o Mental disorder/Unsound Mind
o Venereal disease
o Not heard alive for long years (differs to country to country)
o Judicial Separation (Not in Nepal)
 o No Resumption of Co-habitation
o Cruelty
o If husband is guilty of rape, sodomy or bestiality
o Polygamy
Common theories of divorce
• Faulty Theory
• Non-Faulty Theory
• Break Down Theory
UK
Basis of jurisdiction: residence and mode of marriage.
A divorce cannot be applied for until a couple has been married for at least one year. Divorce
proceedings are started by filling a petition at court.
There is only one legal ground divorce, which is that the marriage has irretrievably broken down.
The person, who starts proceedings, must prove that the marriage has irretrievably broken down
by establishing one of the following five facts:
 Adultery
 Unreasonable behavior
 Desertion
 Two years separation with consent
 Five years Separation (no consent required)
Related Laws

– Matrimonial Causes Act, 1857

– Matrimonial Causes: Actions for nullity of marriage, divorce, judicial separation,
restitution of conjugal rights (now abolished) and
– Judicature Act, 1925)
– For detail, Please visit https://www.gov.uk/browse/births-deaths-marriages/marriage-
divorce
USA
Divorce in America is governed by the laws of the individual state in which it occurs.
Divorce laws vary from state to state. While divorcing spouses once were required to show a
reason for the dissolution of the marriage by assigning fault to one of the parties (Like
adultery, sterility, abandonment, insanity or imprisonment), every state now allows for "no
fault" divorce (usually on the basis of "irreconcilable differences).
Nevertheless many states still allow their courts take into account the behavior of the parties
when dividing property and debts evaluating child custody issues, and determining child and
spousal support.
Some states require a period of separation prior to divorce (some also require therapy), and
this has led to the creation of another category of relationship called "separation".
The terms of a divorce are usually determined by court though they may take into account
ante nuptial agreements (also called "prenuptial agreements") or postnuptial agreements.
Courts may also allow the parties to agree privately to terms for the divorce, subject to the
courts final approval. Such agreements are often reached after mediation of other forms of
alternative dispute resolution. If the spouses are able to agree to the terms of the final divorce
prior to filling, it is often called an "uncontested divorce". Uncontested divorces are usually
much less expensive, much more amicable, and much quicker than disputed divorce cases.
In cases involving children, states have a significant public interest in ensuring that the
children are adequately provided for, and that they are in the custody of a parent or guardian
who will provide a stable and supportive home environment. All states now require parents
to file a parenting plan or to decide on custody and visitation, either by reaching a written
agreement or in a court hearing, when they legally separate or divorce.
Once a divorce is final, parties to a divorce are free to remarry. Grounds for divorce vary by
state statutes. Some states still require a minimal showing of fault, but no-fault divorce is
now the rule, with some states allowing divorce based on fault and no-fault grounds.
Only state courts have jurisdiction over divorces, so the petitioning or complaining party can
only file in the state in which he/she is and has been a resident for a period of time. In most
states the period from original filing for divorce, serving the petition on the other party and
final judgment, or decree, takes several months to allow for a chance of reconciliation.

The possible issues needed to be addressed in divorces include: division of property and
payment of debts, child custody and support, maintenance (spousal support), child visitation
and attorney's fees. For purposes of distributing assets after a divorce, courts divide property
under one of two basic schemes: community property or equitable distribution.
In community property states both the husband and wife equally own all money earned by
either one of them from the beginning of the marriage until the date of separation. In
addition, all property acquired during the marriage with community money is deemed to be
owned equally by both the wife and husband, regardless of who purchased it. Community
property is generally divided equally between the spouses, while each spouse keeps his or her
separate property. With equitable distribution, assets and earnings accumulated during
marriage are divided fairly, but not necessarily equally.
Further more https://www.hg.org/divorce-law-center.html

In India,

– Indian Divorce Act, 1869

– Parsi Marriage and Divorce Act, 1865

– Dissolution of Muslim Marriages Act, 1939

– Special Marriage Act, 1954

 – Hindu Marriage Act, 1955

Nepal

See the provision of both Muluki Ain 2020, Civil Code 2074 Criminal Code 2074 (For Bigamy)

Nullity/annulment of marriage

An annulment is a court ruling voiding a marriage and declaring that it was never valid. The
marriage is not merely dissolved, but is treated as though it never existed. As in divorce, it
returns the parties to their previous, single status, leaving them free to enter into a valid
marriage. Specific grounds must be met to obtain an annulment.
USA
Whether a couple has been married for one week or many years, the couple only qualifies for an
annulment if they meet the criteria outlined by their state's statutory requirements.
The most common include misrepresentation and fraud. Annulments may also be granted for
bigamy, incest, inability to consummate the marriage, close blood relationship between the
spouses, or marriage to a minor. Length of marriage is not a qualifying factor.
Annulments are very rare, and generally more difficult to attain than a divorce/dissolution.
• Declaration of court
• marriage is null and void
• No valid marriage exists between Parties
• Declaration that the supposed marriage never happened
• Nullity (or annulment) is not the same as divorce
• Generally no question of partition and maintenance
• A marriage can be declared null and void if certain legal requirements were not met at the
time of the marriage
Nepal
Grounds for annulment of marriage in Nepal
• Either party is below 20 years of age
• Marriage without consent
• Fraud marriages
• Polygamous marriages
• Marriages that are void under the municipal law-Child marriage, incestuous marriage etc
• Marriages which are void from the beginning for reasons of public policy
See Chapter on Marriage of Muluki Ain 2020 and Civil Code 2074 for the details
Issues of annulled marriage
• Rights of the children from annulled marriages
• Legitimacy of children of void and voidable marriages
Judicial Separation
– Separation de Corps
– Separation from bed and board.
– Does not bring the tie of marriage to an end.
– Spouses cannot marry another.
– If one of the parties die intestate, other succeeds the property.
– If they want to resume cohabitation, necessary to rescind the previous court decree.
– Does not affect status. (Le Mesurier v. Le Mesurier)(Anghinelli v. Anghinelli)
– Differs from country to country.
– Roman Catholic Countries (Spain, Italy, etc.,) the divorce is still not recognized.
– Norway, Sweden – Separation may lead to a divorce.
– India, Nepal, and France – If cohabitation is not resumed for a certain period of time, one
of the parties can claim for divorce.
– In British law, the grounds for breakdown of marriage are the grounds for judicial
separation too.
– Generally, considered as the preliminary stage for a divorce.

• Judicial separation is a state of relations between husband and wife when they are under
no obligation to live together or to perform marital obligations for each other.
• It is temporary suspension of marital rights between the spouses as a result decree passed
by the court on any one of the grounds mentioned in the section 10 of Hindu Marriage
Act (India).
• During the course of judicial separation, either party may be entitled to get maintenance
from the other if the situation so warrants. But during this period, the husband or the wife
would not acquire the competence to marry afresh.
• The right of fresh marriage would be available to them only after the dissolution of
marriage.
• Section 10 of Hindu Marriage Act (HMA), 1955 (India) provides that either party to
marriage may present a petition praying for a decree of judicial separation on any of the
grounds specified in the Act.
• There are some common grounds for husband and wife both and some grounds are only
for wife.
• Judicial/Legal separation is an alternative to divorce for people who can’t continue to live
together but do not want to end their marriage.
• A couple is legally separated after petitioning the court to recognize their separation.
Simply living apart does not constitute a legal separation.
USA
• In USA, It is called Legal separation; all states except, Florida, Georgia, Mississippi,
Pennsylvania, and Texas recognize legal documentation of separation. In these states
there is no provision of legal separation but have arranged maintenance for the children in
pending divorce process.
• UK has provision of Legal Separation. Party can ask for a legal separation for the same
reasons you could file for a divorce, for example adultery or unreasonable behavior.
However, party doesn't need to show that the marriage has broken down irretrievably.
There are other three grounds to ask for legal separation: (Matrimonial Cause Act 1857)
Religious reasons against divorce
Married less than a year
Want time and space to work out to end the marriage
Nepal
No provision of Judicial Separation.
The concept of Separation by Wife after taking partition and one of the grounds of
divorce: Living separately more than three years is mentioned in the law. However the
concepts are different from Judicial Separation (Muluki Ain 2020)