Marriage under private International law

Marriage is a universal human institution which has formed the very foundation of the family throughout
the history. It usually means voluntarily union for life of one man with one woman to the exclusion of
others. All over the civilized world and in every legal system of the world, marriage is a very important
social institution. Whether considered as sacrament or a contract, marriage gives rise to status. It confers a
status of husband and wife on the parties to marriage and it confers a status of legitimacy on the children
of such marriage. Thus, the basic difference between the marriage and any other contract is that while a
commercial and mercantile contract does not give rise to any status, marriage gives rise to status.

Conflict of laws; now a question may arise as to how a question may arise as to how a marriage between
two interested parties may lead to conflict of laws situated between laws of two different countries for
example, tom and Mary are a married couple in England, although originally, tom is from France but he
marries Mary who is from England. Now suppose they want to get divorced there could be a conflict of
laws situation between French and English laws, as to which law would be applicable. Thus, every
country in order to deal with this problem of conflict every country has to develop certain rules or laid
down certain statutes which determines the laws of the place would be applicable in case of a matrimonial
dispute of this particular kind. Now, in every system of law for the validity of marriage the fulfillment of
the two conditions is necessary;

1. Parties to marriage must have the capacity to marriage and have agreed to marry each other with
free consent and not under any sort of coercion or force. This is in private international law,
called the question of essential or material validity of marriage.
2. Parties must have preformed necessary ceremonies and rites of marriage, which is, in private
international law, known as question of formal validity of marriage.
3. Only that marriage will be valid which is both formally essentially valid, and if any of the two
conditions are not satisfied or fulfilled, the marriage is void
Two principles need to be known before going on to the discussion about the rules applicable in
different countries on various matrimonial issues;
Lex loci celebrations; The law of the place where contract of marriage is performed. For a
French citizen marries b, an Italian citizen in India, now in case of any dispute which needs to be
solved the principle of lex loci celebrations will be solved according to the Indian law rather than
French law or Italian law, as the marriage was contracted or performed in India. The original rule
was that the validity of marriage was solely depended upon the law of the place of celebration.
There is nothing in the constitution or any other source that prevents a state from not following
the place of celebration rule for recognizing marriages but in continues to be the rule followed in
every jurisdiction.
Lex domicilii; the law in force in country or place where a person is domiciled, or the law of
person’s is domicile. For example, a and b, who are domiciled in England, marry in France. But
certain matrimonial dispute arises which needs to be determined or solved according to the
principle of lex domicilii then the English law will be applicable rather than French law as
England was the place were both the parties were domiciled.
Formal validity of marriage; the term formalities includes such questions such as whether a civil
ceremony or any ceremony at all is required, the number of witnesses necessary, the permitted
hours during which the marriage can be celebrated, whether publication of marriage is necessary,
and so on, now as general principle, the formal validity of a marriage is determined under the
municipal lex loci celebrations on the date of the ceremony ( the principle of renvoi does not
apply unless it will refer to a law that will validate the marriage), and the lex domicilii of either
party will be irrelevant. This rule is simply and easy to apply. It should be obvious to parties
wishing to marry that they should comply with the local formalities.