Marriage

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. Marriage is a legal contract or social union between
two people who want to be married. It sets out their rights and responsibilities to each
other, their children, and their in-laws.

In English law, marriage is a contract, and the details of that contract depend on the
legal system. In "Hyde v. Hyde," England did not accept marriages to more than one
person. In Australia, Canada, and India, where marriage is seen as both a ritual and a
contract under Mahomedan Law, this idea still stands.

The laws of the country where the marriage ceremony takes place will decide what the
formalities need to be. A marriage can happen if both people meet the substantive
requirements of the domestic law of the country where the marriage is celebrated and
one of them is a citizen or regularly resides in that state. Additionally, each person
must also meet the substantive requirements of the law that applies to them in line
with the conflict of law rules of the place where the marriage is celebrated.

Formal Validity of Marriage

A. Position in England

Recently, laws have made a lot of changes to the Common Law rules. These changes
aren't talked about because the laws wouldn't apply outside of England and the United
Kingdom.

Any of the following conditions must be met for the ceremony to be legally
recognized as a marriage:

i. If the wedding takes place in a way that is required by law of the country where the
wedding took place.

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ii. If the wedding followed English common law in a country where the use of the
local form is impossible.

iii. The Foreign Marriage Acts, 1892, must be followed if a marriage between parties
of whom at least one is UK citizens is celebrated outside the Commonwealth.

 English law has two disputable presumptions of marital validity:

a) They were legally married if they went through a wedding ceremony and lived
together afterward.

b) If both parties live together and are believed to be married, they are legally married.
However, there must be proof that the marriage followed the rules in their area.

B. Position in Common Law Countries

1. Position in Australia

If the lex loci celebrationis says that the marriage can happen, then the marriage by
proxy will also be valid.

An appointed priest had to be present for the marriage to be legal in Australia. If they
weren't, the marriage would not be acknowledged.

The Australian Court also recognizes as valid a marriage that took place in a religious
ceremony, even if the legal requirements of the place where the marriage happened
were not met at the time.

2. Position in Canada

The formal validity of a marriage is generally determined by the lex loci celebrationis.

In the Canadian Common Law Province, as in England, not having parental

permission when needed by the lex domicii is seen as a matter of official validity and
is therefore controlled by the law of the place where the wedding takes place. It will
be a legal marriage in Canada if the law says that a marriage by living together and
knowing each other is acceptable.

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If a marriage that was legally illegal in the first place is later recognized as valid in
another country, it will be recognized as valid in Canada, even if both parties lived in
Canada at the time of the marriage.

Capacity to Marry

The capacity to marry is an essential aspect of family law, and it is often subject to the
laws of the jurisdiction where the marriage takes place. The capacity to marry can
involve various factors, including age, mental capacity, and the absence of any legal
impediments.

In Way v. Way (1949) it was held that, the consent is governed by the law of the
domicile of the parties.

Different jurisdictions may have different minimum age requirements for marriage.
Private International Law determine which jurisdiction's laws apply when individuals
from different jurisdictions marry, especially if the minimum age varies.

For entering into a marriage parties have to have the mental capacity to understand
the nature and consequences of marriage. Private International Law assesses whether
the parties had the necessary mental capacity.

Certain legal impediments, such as existing marriages, close blood relationships, or

the lack of consent, may affect the validity of a marriage. Private International Law
determine which jurisdiction's laws govern the recognition or annulment of such
marriages.

In some cases, individuals may have the option to choose the law that will govern
their marriage. Private International Law principles, such as party autonomy, may
allow the parties to select the law of a particular jurisdiction to govern their marriage
contract.

Private International Law also deals with the recognition of marriages across
borders. Even if a marriage is valid in the jurisdiction where it took place, other
jurisdictions may have rules regarding the recognition of foreign marriages.

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English law does not invalidate a legally able underage marriage if it does not occur in
England.

There are two main views as to the law which should govern capacity to marry such as
the dual domicile doctrine, and the intended matrimonial home doctrine.

a) 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.

This rule is based on the idea that a person's status is a public concern in the country
to which he belongs at the time of marriage, therefore each party's domiciliary laws
has an equal right to be heard.

Another advantage of this doctrine is that it is easy to apply in prospective situation.

b) Intended Matrimonial Home Doctrine

Another way to look at it is that the law of the intended matrimonial houses decides
whether or not a marriage is legal. This gives the law of the country where the
husband lives at the time of the marriage more weight than other laws.

This presumption can be ruled out if both parties planned to set up a home together in
a different country before they got married and followed through on their plan within
an acceptable amount of time.

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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.

If a divorce is granted without going through the courts, it will not be accepted by the
English courts. It will be recognized if it is valid under the law of the country where it
was issued and if, at the time of the decree, one party was residing in that country and
the other was residing in a country that recognizes such decree and neither party had
been a regular resident of the UK for one year prior to the decree 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.

 Importance of the Recognition of Foreign Divorce

The importance of the recognition of foreign divorces are:

Recognition of a foreign divorce is essential for determining the legal status of the
parties. Once a divorce is recognized, it means that the marriage is legally terminated,
and the individuals are no longer considered spouses.

The recognition of a foreign divorce affects the rights and obligations of the parties,
particularly in matters such as property division, alimony, and child custody. The legal

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consequences of divorce, including the extinguishment of marital rights, depend on
the divorce being recognized.

The ability to remarry is contingent on the recognition of the divorce. Without

recognition, individuals may be legally considered married, preventing them from
entering into a new marital relationship.

The recognition of foreign divorces is crucial for individuals who move or travel
internationally. It ensures that their marital status is acknowledged globally and
avoids legal complications when dealing with different legal systems.

Recognition of foreign divorces is particularly important in cases involving child

custody and support. It establishes the legal framework for determining which
jurisdiction's laws govern these matters.

Some international conventions, such as the Hague Convention on the Recognition

of Divorces and Legal Separations, provide a framework for the recognition of
divorces across borders. Adherence to such conventions facilitates the recognition
process.

The Choice of Law Rule

The law of the country where the wedding takes place determines the formal validity,
but most people don't think that law should be used to decide the essential validity in
the English conflict of laws.

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.

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This rule is based on the idea that a person's status is a public concern in the country
to which he belongs at the time of marriage, therefore each party's domiciliary laws
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

Another way to look at it is that the law of the intended matrimonial houses decides
whether or not a marriage is legal. This gives the law of the country where the
husband lives at the time of the marriage more weight than other laws.

This presumption can be ruled out if both parties planned to set up a home together in
a different country before they got married and followed through on their plan within
an acceptable amount of time.

3. Real and Substantive Connection (বাস্তব এবং মূল সংযোগ)

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 belongs.

4. Validity of either Party’s Domiciliary Law (উভয় পক্ষের আবাসিক আইনের বৈধতা)

The rule says that a marriage is basically legal if it was legal in the two party's home
country before the wedding. The proposal would help promote the policy in favor of
validity of marriage, which is an advantage.

5. A Variable Rule (একটি পরিবর্ত নশীল নিয়ম)

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.