Marriage & Matrimonial Causes in Private International Law: Issues in Common

Law Countries.1

Introduction

Despite the changes in society in recent decades, there remains much truth in the Lord
Westbury‟s dictum in Shaw v. Gould2 “Marriage is the very foundation of the civil society, and
no part of the laws and institutions of a country can be of more vital importance to its subject
than those which regulate the manner and condition of forming, and if necessary of dissolving,
the marriage contract.” In English law, a marriage though a contract, is a contract sui generis.
Each legal system determines the attributes of a marriage; at Common Law in England, it is in
essence a consensual union of a man and a woman. A marriage was a voluntary union for life of
one man with one woman to the exclusion of others.3 This decision was the foundation of the
rule that polygamous marriages were not recognized in England but the situation has been
changed and such marriages are now recognized in England.
The Hague Conference on Private International Law has drafted the Hague Convention on the
Celebration and Recognition of the Validity of Marriages 1978. Few Common Law States have
adopted it, Australia being the only exception, having amended the (Australian) Marriage Act
1961, in 1985 to give statutory force of convention relating to the recognition of marriage. The
Law commission in the United Kingdom recommended against its adoption. Indian has not
adopted it. The convention thus has little direct usefulness, some of its provisions are being
briefly indicated, however to show what can be called the international consensus of opinion on
the subject.
A contract to marriage differs fundamentally from a commercial contract, 4 since it creates a
status that affects the parties themselves and the society to which they belong. It is sui generis. It
is fulfilled on the solemnization of the marriage ceremony, and thereafter there is a change in the
law that governs the relationship between the parties. As far as matrimonial causes are concern
they are now generally taken to include petition for divorce, nullity of marriage, judicial

1
Nishant Chaturvedi, V year student & Sugandha Nayak, IV year student
2
(1868) L.R, 3 H.L, 55 at 82
3
See Hyde v. Hyde, (1866) LR 1 P & D 130.
4
Under the Law Reform (Miscellaneous Provision) Act 1970, s. 1, an agreement to marry does not have effect as a
contract.

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separation and presumption of death and dissolution of marriage as well as similar foreign
proceedings which may fall recognition here.

Meaning of Marriage
Marriage is a contract by which a man and a woman express their consent to create the
relationship of husband and wife. This contract, however, differs fundamentally from a
commercial contract in the following ways:
 As a general rule, it can only be concluded by a formal public act.
 It can only be dissolved by a formal public act.
 More importantly, it creates a status which is taken into account in relation to, for
example, succession, tax, legitimacy of children, and to some extent in relation to
immigration laws.5

In English law, a marriage though a contract, is a sui generis. Each legal system determines the
attributes of a marriage, at Common Law in England; it is in essence a consensual union of a
man and woman. In a celebrated (or notorious) case in 1866, Hyde v. Hyde,6 it was held that a
marriage was voluntary union for life of one man with one woman to exclusion of others. This
decision was the foundation of the rule that polygamous marriages were not recognized in
England.7 Even when divorces became easier, the concept was maintained, as the dissolubility of
a marriage did not affect its legal character.8 This was also the position in Australia, and
Canada.9 In India, among Hindus marriage has always been regarded as sacrament, whilst in
Mohomedan Law, it is a contract.
The formal requirement of the marriage will be governed by the law of the country where the
marriage is celebrated. A marriage can be celebrated if the parties meet the substantive
requirement of the domestic law of the country where the marriage is celebrated, and one of the
parties is a national of that state, or habitually resides there; and each party satisfies the

5
See Cheshire & North, Private International Law, thirteenth edn, p. 741.
6
(1866) LR 1 P & D 130
7
Today the situation has been changed under this and now they are recognized for many purposes.
8
Nachimson v. Nachimson [1930] P 217 (CA), a marriage in the USSR at a time when a unilateral divorce was
available to either party was recognized as a valid marriage in England.
9
Marriages celebrated according to Chinese, Japanese, Eskimo and Jewish rites were also recognized on proof that
such marriages were monogamous. See Castels & Walkers, Canadian Conflict of Laws, sixth edn, para 16.6

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substantive requirements of the law applicable to the parties in accordance with the conflict of
law rules of the place where the marriage is celebrated.10

Formal Validity of Marriage

A. Position in England
In recent years, the Common Law rules have been considerably varied by statute; such
changes are not discussed as the statutes would have no application outside England or
United Kingdom. A marriage is formally valid when any one of the following conditions
as to the form of celebration is complied with (that is to say):11
i. If the marriage is celebrated in accordance with the form required or recognized as
sufficient by the law of the country where the marriage was celebrated.12
ii. If the marriage was celebrated in accordance with the English common law in a country
where the use of the local form is impossible.13
iii. If the marriage, between parties of whom at least one is United Kingdom national is
celebrated outside the Commonwealth in accordance with the provisions of, and the form
required by, the Foreign Marriage Acts, 1892.14
The leading more modern authority in England on the point is Sottomayor, otherwise De Barros
v. De Barros,15 where the Court of Appeal held that „the law of a country where the marriage is
solemnized must alone decide all questions relating to the ceremony by which the marriage is
alleged to have been constituted; but, as in other contracts, so in that marriage, personal capacity
must depends on the law of the domicile; and if the laws of any country prohibits its subject
within certain degree of consanguinity from contracting marriage, and stamp a marriage between
persons within the prohibited degree as incestuous.‟ In Berthiaume v. Dastous,16 a decision of the
Privy Council in an appeal from Canada, held that a marriage would be regarded as valid if the
form adopted by the parties was in conformity with the law of the country where the marriage
took place, even if it was not a proper form of law of the domicile of the parties.

10
Refer, Art. 3 of the Hague Convention on the Celebration & Recognition of the Validity of Marriages, 1978.
11
See Dicey & Morris, Conflict of Law, thirteenth edn. P651.
12
Rule 67(1) of Common Law Rules.
13
Ibid, Rule 67(2)
14
Ibid, Rule 67(5)
15
(1877) 3 PD 1, p 5.
16
[1930] AC 79, p 83.
In English Law, two rebuttable presumptions are drawn presuming the validity of marriage:
a) That if the parties go through a ceremony of marriage and live together, they were validly
married.
b) If the parties cohabit and are reputed to be married, they regarded as validly married;
there must, however, be some evidence that the marriage complied with local form.17

B. Position in Common Law Countries

I. Position in Australia
 Marriage by proxy will be recognized as valid if they are valid under the lex loci
celebrationis.18
 Where the marriage is performed without the presence of an ordained priest, it had been
held that the marriage would not be recognized in Australia.19
 Australian Court also recognize as a valid marriage performed according to religious
ceremonies of the parties even if the formalities prescribed by law of the place where the
marriage took place were not complied with in conditions prevailing at the time, whether
the parties were British subject or not.20

II. Position in Canada

The formal validity of a marriage is generally determined by the lex loci celebrationis.21
The lack of parental consent, when required by the lex domicilii is treated in the Canadian
Common Law Province, as in England, as a question of formal validity, and, therefore governed
by the law of the place where the marriage is celebrated. 22 If the lex loci recoginses as valid a
marriage by cohabitation and repute, such marriage will be accepted as a valid marriage in
Canada.

17
Cristofaro v. Cristofaro (1948) VLR 163.
18
Supra, no. 10
19
See Nygh v. Davies, Conflict of Law in Australia, seventh edn, para 24.14
20
Savenis v. Sevenis, (1950) SASR 309.
21
See Castel & Walkers, Canadian Conflict of Laws, sixth edn, para 16.2; Forbes v. Forbes (1912) 3 DLR 324.
22
Hunt v. Hunt 14 DLR (2d) 243.
 If a marriage, though invalid by the lex loci when considered, is retrospectively validated in the
foreign country the marriage will recognized as valid in Canada even if , by then, both the parties
were domiciled in Canada.23
Capacity to Marry
Essential validity covers all questions of validity other than formal validity. „Capacity to marry‟
is a category within essential validity. 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). 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). Capacity to marry does not, however, cover the whole field
of essential validity; it does not include the consent of the parties or the non consummation of the
marriage.
There is general agreement that this terminology includes matters of legal capacity such as
consanguinity and affinity, bigamy and lack of age. Consideration is given later to a law to
govern matters of consent and physical incapacity. The fact that capacity as a term encompasses
a wide range of matters does not necessitate the conclusion that all matters of capacity should be
subject to the same choice of law rule- a matter to which we shall return. A further preliminary
point which ought to be borne in mind is that, provided that a person has capacity under the
relevant law, the fact that he is, for example, under age according to English law will not
invalidate the marriage in the eyes of English law as the law of the forum at least if the marriage
is not in England.
There are two main views as to the law which should govern capacity to marry- the dual
domicile doctrine, and the intended matrimonial home doctrine.

Consent of Parties
The rule states that „no marriage is valid if by the law of either party‟s domicile he or she does
not consent to marry the other‟.24 There appears to be no specific authority in England on the
subject though observation by the Court of Appeal, in a case where the issue was whether a

23
Re Howe v. Louis (1970) 14 DLR (3d) 49, cited in Dicey & Morris, Conflict of Law, thirteenth edn para 14-010.
24
Supra no. 10.
marriage by proxy was valid, observed that the mode of giving consent, as opposed to the fact of
consent would be governed by the lex loci celebrationis. It was also held that the consent is
governed by the law of the domicile of the parties.25 The question that arises is as to which lex
domicilii has to be considered, of both parties, or of the party whose consent is in question. The
consensus seems to be, though there is no decision on the subject, that is should be domiciled of
the person who is alleged to have lacked consent. In Davison v. Sweeney,26 it was held that
alleged absence of consent was a matter for a domicile of the party concerned.
In Canada, consent is regarded as a part of essential validity of a marriage and depends on the
ante nuptial domicile of the parties.

The Choice of Law Rule

Formal validity is governed by the law of the country where the marriage is celebrated, that law
is not generally thought appropriate in the English conflict of laws to govern the essential
validity. This is because the marriage may be celebrated in a country which in other respect has
no connection with the marriage or the parties. Neither of the parties may be domiciled there
before the ceremony and they may not establish their home there after it. The choice of law rule
doctrines are as under:
1. Dual Domicile Doctrine
According to the dual domicile doctrine rule is that a person‟s domicile at the date of the
marriage has to be considered. For marriage to be valid, each party must have capacity
by the law of his or her domicile to contract the marriage. This rule commands most in
English law, has several advantages. In terms of principle, it is appropriate that people be
governed by the law of their existing domicile. The main rationale of this rule is that a
person‟s status is a matter of public concern to the country to which he belongs at the
time of marriage; and therefore the domiciliary law of each party has an equal right to be
heard. Another advantage of this doctrine is that it is easy to apply in prospective
situation.
2. Intended Matrimonial Home Doctrine

25
Way v. Way [1949] All ER 959.
26
(2005) 255 D.L.R. (4th) 757 (BC)
 An alternative approach is that the law of the intended matrimonial homes governs the
essential validity of a marriage.27 This provides a basic presumption in favour of the law
of the country in which the husband is domiciled at the date of the marriage. This
presumption can be rebutted if at the time of the marriage the parties intended to
establish a matrimonial home in a different country and if they implemented that
intention within a reasonable time.28
3. Real and Substantive Connection
Another possibility is that the essential validity of marriage should be governed by the
law of the country with which the marriage has its most and real and substantial
connection. As with the intended matrimonial home doctrine this rule is trying to
connect the marriage with the country to which it belong. Normally, the country with
which a marriage is most closely connected will be the country where the matrimonial
home is situated.29 Further, while the real and substantial connection test has its
supporters, it is, in reality, a question- begging test. The question in which, choice of law
rule will best lead to the application of the law to which the parties and marriages
„belong‟. This test does not answer the question, but rather simply restates the problem.30
4. Validity of either Party‟s Domiciliary Law
Under this test a marriage would be regarded as essentially valid if it were valid under
either party‟s ante nuptial domiciliary law. This proposal has the advantage that it would
promote the policy in favour of validity of marriage, but has little else to commend it.31
5. A Variable Rule
In order to determine the most appropriate choice of law rule, one should examine why a
particular impediment exists and which law has the most interest in the validity of the
marriage. On this basis, the modified intended matrimonial home rule proposed above
seems the more appropriate to govern incapabilities which are imposed to protect the
public interest of countries, rather than the interest of the parties to the marriage.32

27
See Cheshire & North, Private International Law, seventh edn, p 276.
28
Cook, The Logic and Legal Bases of the Conflict of Laws (1942) p 448.
29
Lawrence v. Lawrence [1985] 1 All ER 506.
30
Davie, „The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English Conflict of Laws’
(1994) 23
31
Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.
32
Jaffey, Topics in Choice of Law (1996) pp 3-7.
Matrimonial Causes
Matrimonial causes are now generally taken to include petition for divorce, nullity of marriage,
judicial separation and presumption of death and dissolution of marriage as well as similar
foreign proceedings which may fall recognition here. The rules relating to the jurisdiction of the
courts and to the recognition of the foreign divorces, annulments and judicial separations are, in
essence, the same for all three matrimonial causes, and therefore be examined together,
identifying where appropriate any rule which do not apply to all three. It will be seen that the one
major area of difference remaining concerns the determination of the law to be applied by the
English Court. It is also necessary to discuss a further preliminary issue, namely whether an
English court will assume jurisdiction to grant matrimonial relief in the case of an actually or
potential polygamous marriage.

Polygamous Marriages and Matrimonial Relief

A. At Common Law
Until 1972, the rule of English Law was that the parties to a polygamous marriage were
“not entitled to the remedies, the adjudication, or relief of the matrimonial law of
England.”33 It meant that, in the case of a polygamous marriage, the court would grant a
divorce, a decree of nullity even where the petitioner claimed lack of capacity to enter a
polygamous marriage,34 or a decree of judicial separation. It can be realized, however,
that fundamental reform was called for a view of the number of immigrants from
jurisdictional where they had contracted valid marriages in polygamous form. A
substantial number of people, permanently residents through not domiciled in England,
were denied all matrimonial relief.
B. Matrimonial Causes Act, 1973
The entire above rule have been changed now and Section 4735 of the Matrimonial
Causes Act, 1973 makes it available to the parties to an actually polygamous marriage a

33
Supra no. 5.
34
Risk v. Risk [1950] 2 All ER 973.
35
A Court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration
concerning the validity of a marriage by reason only that either party to the marriage is, or has during the substance
of the marriage been, married to more than one person.
 wide range of matrimonial relief,36 namely decrees of divorce, nullity, judicial separation,
presumption of death and dissolution of marriage, order for financial provisions in the
cases of neglect to maintain, variations of maintenance agreement, orders for financial
relief or relating to children which are ancillary to any of the preceding decree 37 or order,
order made under Part I of the Domestic Proceedings and Magistrates‟ Court Act 1978,
order for financial relief after a foreign divorce, annulment or legal separation 38 and any
declaration under Part III of the Family Law Act 1986 involving a determination as to
validity of a marriage.39 Indeed it has been said that the effect of section 47 of the 1973
Act is to abolish entirely the old rule, so that all forms of relief which can be classed as
matrimonial are now available in the case of polygamous marriages.

C. Remaining Problems
Where the party to an actually polygamous marriage brings proceeding for divorce
alleged irretrievable breakdown of the marriage, 40difficulties may arise over adultery,
unreasonable behavior or desertion as proof of breakdown. 41 If a wife alleges that her
husband has committed adultery with another wife, such a claim will usually fail because,
“it is an essential element of adultery that intercourse has taken place outside the
marriage relationship i.e. between persons not married to each other. This being so,
intercourse with a wife could not be adultery.”42 In terms of policy this conclusion seems
right if both the marriages were entered into in polygamous form. It has been said 43 that
in such a case there has been no breach of the obligation of fidelity imposed by the law
governing the marriage, followed by a valid polygamous one.
If a wife divorces petition is based on the husband‟s unreasonable behavior, 44 the court
will have to examine all the circumstances of the marriage45 and it been also held that the

36
Matrimonial Causes Act 1973, Section 47(2).
37
Chaudhary v. Chaudhary, [1976] Fam 148 at 151.
38
Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15.
39
Matrimonial Causes Act 1973, Section 47(3).
40
Ibid, Section 1.
41
Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when Part II of the
Family Law Act, 1996 is bought into force.
42
Onobrauche v. Onobrauche (1978) 8 Fam Law 107
43
Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110
44
Matrimonial Causes Act 1973 Section 1 (2) (b)
45
Gollins v. Gollins [1964] AC 644.
 taking by the husband of a second wife is unreasonable behavior towards the first. 46
Similarly, if a husband‟s petition is based on desertion by the first wife, the fact that he
was the validity married a second wife has been held to give the first wife reasonable
ground for leaving him.47

Jurisdiction
 Divorce and Judicial Separation
It was lead by the Privy Council in Le Mesurier v. Le Mesurier, that „according to
international law, the domicile for the time being of the married pair affords the only
jurisdiction and only true test of jurisdiction to dissolve their marriage.‟ The essence of
the rule in this case was that there should be only one test of jurisdiction and only one
court capable of dissolving a particular marriage, the court of the parties domicile. The
Matrimonial Causes Act, 1937, provided that the Court should have jurisdiction to grant a
divorce, in proceeding by a wife, notwithstanding that the husband was not domiciled in
England, if she had been deserted by her husband, or the husband had been deported from
United Kingdom, and the husband was immediately before the desertion or deportion
domiciled in England.48 These enactments were confined to proceeding by a wife. They
did not extend to cross-petition by a respondent husband. 49 The exercise of the English
Courts jurisdiction in proceeding for divorce is subject to rules requiring or enabling the
court to stay those proceedings in certain circumstances.50
 Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions for the nullity of
marriages was one of the most vexed and difficult question in the whole of the English
conflict of laws. An enormous simplification of the law was effected by section 5(3) of
the Domicile and Matrimonial Proceeding Act 1973. This provides that the English Court
have such jurisdiction to entertain such petition if (and, subject to section 5(5), on if)
either party to the marriage:

46
Poon v Tan (1973) 4 Family Law 161.
47
Quoraishi v. Quoraishi [1985] FLR 780 CA
48
Section 13, but now repealed.
49
Levett v. Levett and Smith [1957] P. 156
50
Family Proceeding Rules, 1991
 (a) Is domiciled in England on the date when the proceedings are begun
(b) Was habitually resident in England throughout the period of one year ending with the
date, or
(c) Dies before that date and either was at death domiciled in England, r had been
habitually resident in England throughout the period of one year ending with the date
of the death.
Without this insignificant exception, the bases for jurisdiction in nullity of marriage are now the
same as in divorce and judicial separation. A voidable marriage no longer confers the husband‟s
domicile at the date of the marriage.51 The bases for jurisdiction are now same whether the
marriage is alleged to be void or voidable. It is therefore no longer necessary to consult foreign
law i.e. the law of the husband‟s domicile at the date of the marriage.52

Choice of Law
A. Divorce
The question of choice of law has never been prominent in the English rules of the conflict of
laws relating to divorce, which has always been treated as primarily a jurisdictional question.
English Court when deciding whether to recognize foreign divorce have never examined the
ground on which the decree was granted in order to hand, when English Court have themselves
assumed jurisdiction, they have never applied any other law than that of England. In English law
the only possible alternative to the lex fori would be the law of the domicile. No difference
between them could exist before 1938, because English courts did not exercise jurisdiction
unless the parties were domiciled in England. The Court of Appeal determined the question of
divorce by the law which would be applicable thereto if both the parties were domiciled in
England at the time of the proceeding, i.e. English law.53
The rule may be justified on the ground that it would be highly inconvenient and undesirable
from the practical point of view to apply foreign law in English divorce suit. Again, to require
English Court to dissolve marriage an exotic foreign ground would be distasteful to judge and
unacceptable to public opinion.

51
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
52
De Reneville v. De Reneville, [1948] P. 100.
53
Zenelli v. Zenelli (1948) 64 T.L.R 556.
 B. Judicial Separation
Unlike divorce a vinculo matrimonii, judicial separation was a remedy granted by the
ecclesiastical court before 1858. There it was called divorce a mensa et thoro( divorce
from bed and board). The principle effect of a decree was (and is) t entitle the petitioner
to live a apart from the respondent, but not to dissolve their marriage nor enable either
party to remarry. The remedy is sought chiefly by person who have religious scruples
about divorce. It has never been doubted that the English court will apply English
domestic law and no other, even if the parties are domiciled abroad.

C. Nullity of Marriage54
A nullity decree is concern with the validity of the creation of a marriage, unlike divorce
which dissolves a marriage which is admittedly validly created. This means that the
choice of law issues in nullity is essentially the same as those already examined in
context of marriage. The reason why the choice of law for nullity is more difficult area
than divorce is that the effect of annulment varies according to the particular ground in
issue and they vary in relation to the same ground even within United Kingdom. Some
defect avoids a marriage ab initio, i.e. render it void, whilst other merely renders it
voidable. If one party is below minimum age of marriage or is already married, English
Law regards the marriage as void.55 In Scotland, on the other hand, lack of consent also
renders the marriage void ab initio.56
There are further differences in relation to the effect of an annulment. The annulment of a
void marriage has retrospective effect; it declares the marriage never to have existed.
However the position is different in England in case of a voidable marriage. It has been
suggested that, as annulment of a voidable marriage and divorce decree both only have
prospective effect, the law of the forum should be applied to the former as to the latter.

54
Ireland also has decided not to opt on to Rome III: Press Release 10 October 2006, available at
http://www.justice.ie/en/JELR/Page/GovernmentrejectsEUdivorceproposals. last visited on 10th February, 2011.
55
Matrimonial Causes Act 1973, Section 11.
56
See, however, Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage (Scotland) Act
1977.
Recognition of Foreign Divorces
The English law of recognition of and foreign divorces has been codified and reformed by the
Recognition of Divorce and Legal Separation Act, 1971. Under this, the English Court would
recognize a foreign decree of divorce if it is recognized as valid by the court of the domicile of
parties. Basically two grounds were laid down for the recognition in 1971:

(a) At the time of institution of the proceeding either spouse was a habitually resident in the
country were divorce was obtained,
(b) At the time of institution of the proceedings either spouse was a national of the country
were divorce was obtained.

An extra-judicial divorce, if pronounced in England, will not be recognized by English Courts.

If, on the other hand, it was granted abroad, then it will be recognized if it is effective under the
law of the country where it was obtained and at that date, each party was domiciled in that
country and the other was domiciled in a country which recognizes such decree, provided that
neither party was habitual resident in the UK for one year immediately preceding that date.

A foreign decree may be refused recognition on the policy grounds, such as want of proper
notice, want of opportunity to take part, the absence of an official document, or contrary to
public policy.
Conclusion

A contract to marry fundamentally from a commercial contract, since creates a status that affects
both the parties themselves and the society to which they belong. It is fulfilled on the
solemnization of the marriage ceremony, and therefore there is a change in the law that governed
the relationship between the parties.

There are many different situations in which the existence of a marriage must be established as a
preliminary to legal proceedings. The matter may concern many different parts of the law. Thus
the institution of matrimonial causes, such as a petitioner for divorce and judicial separation,
implies that the parties are related to each other as husband and wife. Each legal system must
determine the attributes of the consensual union between man and woman, the common factor, in
eyes of the English law, of every marriage, which are necessary to create the relationship of
husband and wife. The above project concludes that the case law just illustrates the incidental
question does not attract a mechanical rule. Therefore each case is decided on its own facts and
circumstances.

As far as jurisdiction of English Court is concerned, to entertain proceedings for nullity, if either
party was habitual resident for one year or domiciled in England, or if either of the parties died
before that date and either was at domiciled in England or had been habitually resident foe one
year ending with the date of the death. A nullity decree may declare a marriage either void or
voidable.