MARRIAGE

J
Marriage is different from any other type of contract as it creates status, that is of husband and
wife, as also the status of legitimacy on children of marriage. Marriage can be a contract. a
sacrament. soluble indissoluble or a mixture of contract and sacrament.

Under the English law marriage is defined as a voluntary union for life between one man and
one woman to the exclusion of others( Hyde v Hyde). This notion gives rise to problems in
polygamous marriages. AU monogamous marriages whether Christian or non-Christian were
recognized. Also the marriage need not be pennnnent marriage. What was necessary was that at
time of marriage it must be indefinite in duration and may even be dissoluble in future . Also the
date for considering whether marriage polygamous or monogamous is not date of marriage but
date on which proceedings for matrimonial relief are filed.

Note on Polygamous Marralges

The extreme view in Harvey v Famie wa'i that polygamous marriages cannot be recognised for
any purpose. Historically polygamous marriages were not recognised even if they were
potentially polygamous. Even if personal law permitted monogamy but also allowed concubines
then still considered 10 be polygamous marriages. If personal law does not pennil polygamy but
person marries at place where polygamy was allowed then also marriage was not recognized in
England. As per Matrimonial Proceedings( Polygamous Marriages) Act 1972 polygamous
marriages outside England between English party (both or one) domiciled in England will be
void even if potentially polygamous.

The modem English law now gives full recognition to polygamous marriages.( Baindail v
Bai11dail ) Indian domiciled Hindu having a wife married an English domiciled English girl.
English girl petitions for nullity of marriage on the ground that al the time of marriage already
had wife living. English Court granted the petition. Recognition of marital status being
universal the court would recognise marital status of even polygamously married persons but not
for all purposes.

In Sinlw Peerage Claim case, the children of potentially polygamous marriage of an lodian
domiciled Hindu was recognised us legitimate and entitled to inherit the English peerage. In Ali v
Ali the potentially polygamous marriage converted to a monogamous Union on acquiring a
domicile of choice in Englund as law of domicile of choice did nol permit polygamy.

The Matrimonial Proceedings( Polygamous Marriages) Act 1972 empowers court to grant
matrimonial relief two parties whose legal system permits polygamous marriages irrespective
whether the marriage is polygamous or potentially polygamous. However a valid polygamous
marriage is not a sufficient first marriage to support an indictment for bigamy.

Some purposes for which Polygamous marriages will be recognized

 • Wife of polygamous union would be treated as wife unless something contrary is true.

• husband and wife status of polygamous married persons would be recognised in English
law

• it would also be recognised for citizenship Maternity Benefit insurance an case of

potentially polygamous or polygamous spouses.

• it would also be recognised for succession to property by children however subject to

exception that cannot succeed to real estate iin England

• it would also be recognised for the purpose of succession by spouse of the propeny of
spouse in case of intestacy.

The question is under which law should marriage be classified as monogamous or polygamous
whether it should be the personal law of either party or the pre marriage domicile or the law of
matrimonial home or lex loci celebrationis.
In lee v Lau the nature and incidents of marriage were detennined by Lex loci celebrationis and
whether to be characterized as polygamous or monogamous by Lex fori.

Indian Scenario
India each religious community has its own personal law. Hindus are goveme{I by Hindu law
Muslims are covered by Muslim law, the Parsis are covered by Parsi law and Christians by
Christian law. In other words there is no one concept of marriage.

• Hindus consider marriage as sacrament and it is permanent ind.issoluble and eternal.

• Muslim marriage is considered to be a co-ntract. Shia Muslims recognise two types of

marriages permanent marriage and Temporary marriage (muta). Shia Mus lim cannot
contract a valid permanent marriage with a non Muslim. A Shia male can contract a
valid M11ta marriage with a female Muslim. Christian, Jew or fire worshipper but with
follower of no other religion. Shia female cannot enter into a Muta marriage with a non
Muslim. Sunnis do not recognize Muta marriages. A Sunni male can marry a female of
any sect of Muslims. Christian. Jew but not fire or Idol worshipper. However it is nol
void or voidable but irregular. A Sunni female cannot contract a marriage with non
Muslim but marriage with Christian or Jew .is not void but irregular.

• The Christian Marriages Act 1872 regulates Christian marriages and marriage may be
perfonned before marriage registrar or solemnised by a licensed Minister of religion.
Marriage with the non Christian can be only perfonned under the Christian Marriage Act.
otherwise it will be void. However if the personal law of any of the parties forbids such
marriage then it cannot be performed.
 • Parsis also consider marriage as a contract. A Parsi m ,age is monogamous union and
cannot contract another marriage during the lifetime of spouse. Parsis are regulated by
the Parsi Marriage and Divorce Act 1936 and a marriage can be performed onJy between
two Parsis and requires the ceremony of Ashirbad.

• Indian Jews consider marriage a,; a monogamous union and a contract. A written contract
called Kat11ba along with marriage ceremony is essential.

• Also Special Marriage Act 1954 allows a civil marriage between any two persons which
may be inter caste, inter communal or inter religious. Once the parties choose to many
under the act all matrimony matters will be regulated by the act.

• Also under the Foreign Marriages Act 1969, an Indian national can many abroad with
another Indian national or national /domicile of any other country.

Cases related to conflict in marriage laws usually in India are related to conversion of spouse to
another religion. If both parties changed their religion then they will be governed by the new
personal law. However if one of the spouses alone changes his religion then no matrimonial
relief can be granted to the convert spouse on the basis of his new personal law.( Nurjahan v
Tiscenco).
In Saeeda Kha11111 v Ovedia it wa,; observed that the marriage performed under one personal law
could not be dissolved under another personal law just because one of the parties has converted
to another religion.

Validity of Marriages

Validity of marriage requires two conditions first parties to marriage must have capacity to
marry that is essential or material validity of marriage and secondly the parties must have
performed the required ceremonies for marriage that is formal validity of marriage. Valid
marriage requires both essential and formal validity.
However the most difficult problem is how the validity of marriage is to be decided that is the
problem of characterization. A legal system may char.1cterize a matter related to marriage a.,;
us related to formal validity whereas the same may be characterized as related to essential
validity by another legal system. Ogde11 v Ogden

To resolve this Graveson recommends a functional test that is what is the purpose of a particular
legal system in imposing any requirement for marriage? Whether a particuJar matter is of
essential or formal validity will then depend on the degree of social interest it embodies. Those
matters which are vitaJ for the maintenance of accepted standards of marriage or family relations
in a society will be governed as essential and those matters of less vital social interest will be
governed as related to formal validity.

Characterization of any requirement of marriage is to be made as per the law of each parties
domicile on the basis of justice and logic according to Graveson and on the other hand Cheshire
recommends it to be determined by the matrimonial home of the parties. Generally the material
validity of marriage is determined by the law of domicil of each pany at the time of marriage
and the formal Validity of marriage is determined by loci celebrationis that is the place of
celebration or marriage.

As per the English law characterization of a marriage solemnized in England will be made under
the English law irrespective of domicile or if the marriage is solemni1.ed outside England and if
one of the parties is a domicile of England, then also under English law. However if both the
parties are domiciled outside England and the marriage is also solemnized abroad then
characterization will be done according to the place of celebration of marriage. Apr v Apr
An Argentina domiciled man married a woman domiciled in England. The marriage was
performed by proxy which is recognised under the Argentina law. When deciding the validity of
marriage, a,; one of the parties was of an English domicile, the English law characterized the
same as regarding formal validity and as formal validity is governed by lex loci celebrationis
it was held a,; valid.

Essential Or Material Validlty Of Marriage Or Capacity or Marriage

This includes matters of legal capacity such as consanguinity and affinity. bigamy and lack of
age. consideration was later also given to matters of consent and physical incapacity.

The two main theories as to the law which should govern capadty to marry
1 dual domicile doctrine
2 the intended matrimonial home doctrine

DUAL DOMICILE DOCTRINE

The traditional and still prevalent view is that capacity to marry is governed by dual domicile
doctrine which prescribes that a marriage is invalid unless according to the law of domicile of
both the contracting parties at the time of marriage. they each have capacity to contract that
particular marriage. For example a marriage between a man or Jewish faith domiciled in Egypt
and his niece of the same faith domiciled in England was invalid as the marriage between the
persons so related though permissible in Egypt. is prohibited by English law( place of domicile
of one of 1.he parties)

THE INTENDED MATRIMONIAL HOME DOCTRINE

The basic presumption is that capacity to marry is governed by the law of the husband's
domicile at the time of marriage for normally it is in the country of that domicile that the parties
intend to establish their permanent home.

EVALUATION OF THE DOCTRINEs

On social grounds the doctrine of dual domicile is inferior to that of intended matrimonial home
as marriage is an institution which is closely concerned with public policy and social morality of
the state. If the parties domicile differs. then whose domicile will be accorded primary
consideration. Also marriage of two persons should be prohibited or not prohibited based on
the social moral or religious norms of the community in which the parties live/intend together as
man and wife and not their pre-marriage domicile. Also in cases of domicile, the peculiar
difficulties associated with reversion to domicile of origin may occur and there may be a case
that the country in which party is technically domiciled immediately prior to marriage does not
represent his home. Also in intended matrimonial home theory only one law is to be applied.
Dual domicile theory tends towards invalidity of marriages. It also is prone to misuse as, if a
particular domicile prohibits marriage then that person can acquire a domicile where it is valid

One of the disadvantages of the intended matrimonial home theory is that any rule is undesirable
which renders it impossible to decide whether a marriage is valid or void at the time of it's
celebration. This is so because it may be doubtful whether the parties intend to establish their
home in a particular country. Howover the counter to this is that any question of validity of
marriage arises mostly incidentally in the course of some other proceedings and by that time the
intended matrimonial home will be known. Also post marriage intentions should be irrelevant to
determine pre-marriage capacity.

One of the advantages of dual domicile theory is that it refers capacity to marry to that law

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which up to the time has governed the status of each part'{. It also preserves equality of sexes.

English Scenario
Looking at the English decisions it is inconclusive whether in England dual domicile or
matrimonial home theory is supported.
For example in Brook v Brook a Danish marriage was held void because both spouses lacked
capacity under English law. that is the law of the domicile and of the intended matrimonial home
Also similarly in Mette v Mette as antenuptial domicile and post marriage domicile was same.
Support for intended matrimonial home theory may be found in in The Will of Swan case, De
Reneville v De Reneville, Kenward v Kemvard. Radwan v Radwan. Lawre11ce v l.Awrence.

Support for dual domicile theory may be found in Re Paine, Pugh v Pugh, A Local Authority v X,
Padoleccl,ia v Padolecchia. Further support for dual domicile theory may be found in two
statutory provisions.
Marriage( Enabling) Act 1960 lays down a rule for the choice of law by providing that no such
marriage is valid if a party to it had at the time of marriage domiciled in a country outside
Great Britain and under the law of that country there cannot be a valid marriage between the
parties.(sec l (3)). It provides a clear statutory reference to the dual domicile theory though in
admittedly limited circumstances.
The second statutory reference section I l(d) of the Matrimonial Causes Act 1973 which
stipulates that an actually polygamous marriage celebrated abroad is void if either party was
domicile in England at the time of marriage.

As a General rule capacity to marry is governed by the ante-nuptial domicile of each party
(Brook v Brook)(Souomayor v De Barros)

Consent of the parties:

It has been characterized as a matter of essential validity of marriage. In H v H a
Hungarian domiciled girl married in Hungary with her French domiciled cousin. They did not
live together and husband left for France and wife for England. On the petition of the wife in an
English court for a decree of nullity on the ground of lack of consent the English court passed
decree in her favour on the basis of lack of capacity under her prenuptial domicile.

Age of the parties:

Als o has been characterized as a matter of essential validity and differs from country to country.
In Pugh v Pugh, marriage between a domiciled English man and a domiciled Hungarian 15 year
old girl was held as void.

Prohibited Degrees or relationship:

Marriages within prohibited degrees of consanguinity and affinity have been considered void
under the English law. In Mette v Mette German domiciled in England married in Germany after
the death of his wife, his wife's sister who was domiciled in Germany and whose marriage was
held as void. -'

CERTAIN EXCEPTIONS
• The validity of a marriage celebrated in England between persons of whom one has
an English and other a foreign domicile is not affected by an incapacity though existing
under the law of such foreign domicile does not exist under the law of
England.(Sottomayor v De Barros). However it may lead to limping marriages which
may be valid in England but not in the country of the domicile of one spouse.

• In some the cases the law of place of celebration was also taken into consideration in
addition to the law of domicile or intended matrimonial home for determining the
essential validity of marriages. This is so especially where the place of marriage is the
forum So a marriage celebrated in England is possibly not valid if either of the parties is
under English domestic law under an incapacity to marry the other.

• Where a foreign domiciliary law governs the capacity of the parties to marriage. it will
not be recognised if it is repugnant to public policy

• Also different choice of law rules may be applied to different issues of essential validity
so as to enable the courts t.o retain flellibility necessary to reach just results in difficult
cases.
• Marriage is not valid if either of the parties being a descendant of George 11 marries in
contravention of the royal Marriage Act 1772

• Marriage is not invalid on accoun.t of of incapacity imposed by the law of domicile of the
parties if it is penal in nature. Scott ,, A-G the two persons domiciled in South Africa
were divorced in that country and th.e law provided that the guilty party could not
remarry as long as the other party remained unmarried. The guilty pany remarried in
England and which was upheld by the English court on the ground that the restriction on
remarriage was a penalty.

Also in recent years consideration has been given to other approaches such as real and
substantial connection (Vervaeke v Smith). Alternative reference( marriage regarded as valid
either of the two doctrines makes it valid). elective ~ icile test( any of the two
domicile should regard it as valid) J
Indian law
The marriages performed in India amongst the members of any community would be generalJy
governed by the personal laws of the parties and both material and formal validity depend on
lex loci celebrationis.

For marriages performed amongst Hindus or Muslims or Christians or Jews under their
personal laws, the couru would recognise marriages even if one of the parties or both of the
parties have no capacity to enter into marriage under their antenuptial domicile or their
matrimonial home domicile.
Similarly the special Marriage Act 1954 also governs the marriages performed under it
irrespective of the domicile.
For maniages solemnized abroad the foreign Marriage Acl 1969 governs ii and section I I states
that the marriage officer will refuse to solemnize the marriage if lex loci celebrationis prohibits
such marriage or it is inconsistent with international law or comity of nations. Section 23 lays
down conditions for recognition of marriages solemnized under foreign countries laws.

Statutes enacted in India also recognise that capacity to marry is governed by the law of
domicile. For example Hindu Marriage Act 1955 which lays down the conditions for a valid
marriage applies to Hindus domiciled in India even if they are outside India.

In Perumal Nadar v Ponnuswami Nadar it could be inferred that question of capacity to

contract a bigamous marriage was dependent on the law of a person's domicile.

Section 5 of the Hindu Marriage Act 1955 lays down the conditions for a valid marriage among
Hindus. The conditions include prescribed minimum age, free consent. not within prohibited
degrees of relationship or Sapindas.
Christian marriage can be annulled if the conditions set out in section 19 of the divorce act 1869
are satisfied, marriage must not be within the prohibited degrees of consangi1in;.,, " r affin·
neither party should have a spouse alive.
Customary Mohammedan law is applied by the courts in rel at-ion to Musli1 7/ 1 8 .m
••
••
requirements relating to capacity are attainment of the age of puberty. not ~ J rulet
••
consanguinity, affinity or fosterage as well as marriage with non Muslims which may be vo1 ...
(shias) or irregular( sunnis).
Section 3 of the Parsi Marriage and Divorce Acl 1936 prescribes the capacity as not being
within the degrees of consanguinity and affinity.
Foreign Marriages Act 1969 also sel out that neither party has a spouse living. or is an idiot or
lunatic and prescribed minimum ages.

FORMALITIES OF MARRIAGE
Locus regit actum applies to formalities of marriage implying that an act is governed by the law
of the place where it is done. Whether any particular ceremony constitutes a forrnally valid
marriage depends on the law of the country where the ceremony took place. lf the marriage is
fonnally valid in accordance with the law of the place where it took place then the marriage
would be valid everywhere.The reverse is also true that is if the marriage is no marriage in the
place where it is celebrated then it is not a marriage anywhere although the cere mony if
conducted in the place of the parties domicile would be considered to be a marriage.
Also the application of the law of the celebration of marriage to the formaljties of marriage will
not be disturbed even if the sole object of the parties in celebrating the marriage abroad is to
evade some requirement of their domicile law.(Simonin v Ma/lac).

The ceremonies which should be performed is entirely governed by the local law where it is
celebrated. Thus a marriage performed by cohabitation or being known as living as husband
wife may also be formally valid.

English law
No marriage in Englund is formally valid unless it complies with the requirements of English law
laid down in Marriage Act 1949 (amended).
However there is an importa nt element that whether a particular rule in the place of ceremony is
of formal validity of essential validity. Some matters may seem clearly to be formal in character
such as whether a religious or civil ceremony is required. the time and place of the ceremony, the
persons by whom the marriage ceremonies may be conducted, the need for
witnesses, registration of marriage, prior notification of ceremony. For example a rule which
permits a marriage by proxy must be classified as formal as it is concerned with the ma nner in
which the marriage ceremony may be performed though if a woman domiciled and resident in
England executes power of attorney appointing X to act as a representative in the celebration of a
marriage between her and Y in a country where marriage by proxy is recognised and the
ceremony is in fact performed, the marriage will be valid fonnally.
Marriage which is ini1ially invalid by local law will be recognised if ii is subsequently by
validated by local legislation(Starkowski v A.G)

However in certain mauers such as parental consent there is a difference across legal systems
English law classifies this as a question of formal validity.

Exceptions to the general rule in English law

There are two statutory exceptions and one common law exception to the rule that the law of the
place of celebration governs formalities

Statutory excepdon
8
Prior to the adoption of the Marriage( Sarne Sex couples) Act 2013 the two statutory exceptions
were contained in The Foreign Marriages Act 1892. The 1892 Act was repealed by section 13
(2) of the 2013 act and in its place schedule 6 of the 2013 act has effect. Schedule 6 pertains to
marriage overseas such as with marriages in British consulate overseas, certificates of no
impediment to facil.itate Overseas marriages and civil partnerships under the local laws and
marriages on armed forces bases overseas.
• Consular marriage or a marriage of a member of British forces serving abroad contrac ted
under these statutory provisions is formally valid in England regardless whether it
complies with the law of the country where the marriage was celebrated.
Common law exception

There are certain exceptional circumstances in which a marriage may be recognised even though
it has not been solemnised according to the law of the place of celebration provided it satisfies
the form required by the common law of England. A common law marriage requires that the
parties to take each other as husband and wife. A further condition was added that an
episcopally ordained priest or deacon perfonns the ceremony. The exceptions under the
common law are
• Common law marriages performed abroad where the common law is in :force in the
foreign country. This was so in the Colonial countries
• a marriage in a foreign country where local formalities are non existent or where those
that ex.isl are inapplicable to an English marriage is valid if it is contracted in the presence
of a episcopally ordai.ned priest.
• insuperable difficulty
the situation is that the parties though not subject to the common law in the foreign place
of celebration have without regard to local formalities taken each other as husband and
wife at a ceremony perfonned by an episcopally ordained priest will be valid if
compliance with local formalities has been prevented by some insuperable difficulty.
This is that difficulty which cannot be overcome and not just difficult to obey. which
means if the difficulties are not insurmountable compliance with the local form is
essential.
• marriages of military forces in belJigerent occupation
although the compliance with local law is not impossible it may be unreasonable such as during
World War U there are many people married without recourse to Nazi authorities.
• marriages on high seas there may be situations that there may be no one system of law
common to law of the tlag which the ship is tlying.

Indian law
Indian private international law entails that a marriage to be formalJy valid must comply with
Lex loci celebrationis. ln India the personal law of lndians is not uniform. In India persons are
governed by their personal law with regard to the marriage. They perform their marriage under
the personal law to which both parties belong or they may perform a civil marriage under the
Special Marriage Act 1954. The required ceremonies are laid down by the personal law of the
parties if they marry according to their personal law. Non-compliance will render the marriage
null and void. For example Hindus may marry in accordance with the ceremonies prescribed
under Hindu law or the customary ceremonies. Under Muslim law proposal and acceptance in
the same meeting is required along with the requirement of witnesses. However this
varies under Shias and Sunnis with the requirement of witness not necessary in Shia marriages.
Among Christians a marriage may be solemnized by a Minister of Church or in the presence of a
marriage registrar along with the requirement of witnesses. The parties must dedare to each
other to take as husband and wife. A Parsi marriage to be solemnized requires Ashirbad form
by a Parsi priest in the presence of two Parsi witnesses. Amongst Jews Katuba a written
contract and witnesses is required.
The foreign Marriage Act 1969 governs consular marriages between an Indian national
and foreigner or between two Indian nationals a·broad. It requires the presence of witnesses and
declaration in the presence of the marriage officer to take each other as husband and wife.
 \ 6
However a marriage officer may refuse to solemnize or register a marriage which in his
opinion is inconsistent with international law or the comity of nations. Section 23 of the foreign
Marriage Act 1969 provides that a marriage performed outside India would be regarded as valid
if it was performed in accordance with the law of the country where the marriage was
performed, implying the applicability of lex loci celebrationis.

In Noor Jehan Begum v Eugene Tiscenco it was observed that formal validity would be governed
by Lex loci celebrationis.