MDU-CPAS

ASSIGNMENT
OF
PRIVATE INTERNATIONAL LAW

SESSION – 2020-2021

TOPIC – VALIDITY OF FOREIGN MARRIAGES BEFORE

Submitted to Submitted by
Dr. Meenu Tanya Chhabra
Roll no. 3591-B
B.A L.L.B (IX Sem)

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards

I also take the opportunity to express a deep sense of gratitude to my

Last but not the least, I think the almighty, my parents, brother, sisters and
friends for their constant encouragement without which this assignment
would not have been possible.

Tanya Chhabra

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Table of Contents
INTRODUCTION...............................................................................................................................4
MARRIAGE........................................................................................................................................4
MEANING OF MARRIAGE.............................................................................................................4
PROBLEM OF CHARACTERISATION.........................................................................................5
CONDITIONS FOR VALIDITY OF MARRIAGE..........................................................................5
ESSENTIALS FOR VALIDITY OF MARRIAGE...........................................................................6
CAPACITY TO MARRY...................................................................................................................6
CONSENT OF PARTIES...................................................................................................................7
CHOICE OF LAW..............................................................................................................................7
EXCEPTIONS TO LEX LOCI CELEBRATIONIS RULE.............................................................9
CONCLUSION....................................................................................................................................9
BIBLIOGRAPHY..............................................................................................................................10

Introduction
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“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.” 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 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. This article basically focuses on the marriage as a contract which is sui generis along
with the opinion of various Judges though the judgments in different cases. However it also talks about the
position, legal formalities along with the validity and capacity of the parties to marriage and the choice of law
rules governing such marriages in England and other common law countries though out the world. On the other
hand the focus on the matrimonial causes like polygamous marriages; divorce, judicial separation, nullity of
marriage in different countries has also been made. Towards the end of the article it talks about the jurisdiction
and the choice of law for solving such causes after marriage and the recognition of foreign divorces in other
countries. The conclusion part tries to give an overall view along with the present scenario on the subject.

MARRIAGE:

The dictum in Shaw v. Gould (1868) states marriage as “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. In Hyde
v. Hyde (1866), A marriage was a voluntary union for life of one man with one woman to the exclusion of
others. 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.

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.

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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.

According to Tomlin’s Dictionary, “Marriage is a civil and religious contract, whereby a man is joined and
united to a women, for the purpose of civilized society.”

Each legal system determines the attributes of a marriage in a different way. English law considers marriage as
a contract, whereas in India, among Hindus marriage has always been regarded as sacrament, whilst in
Mohammedan Law, it is a contract. Hence the perception of marriage differs from different legal entity, the
practice of religion etc. as the case may be.

Problem of Characterization

 The Conflict of Laws exists due to the applicability of domestic laws within the territory of countries.
But all the legal systems have common denominator which is expressed in terms of connecting factor.
Characterization/ classification of connecting factor has been regarded as a fundamental problem in the
conflict of laws.
 Characterization or classification in a suit is a process taken up by authorities of Courts to arrange facts,
knowledge and experience into classes in order to decide which law will be applicable to the given
situation/ fact.
 The process of Characterization is easy under municipal law, while, it becomes difficult under private
international law where two or more legal systems are involved. The Characterization of connecting
factors and cause of action under conflict of law rules unfolds general problems related to choice of law.
 It is called Conflict of Law rules as conflict arises between two or more legal systems in private
international law. Within municipal system, generally, there is one logical or traditional ordering of
concepts, principles and rules.

Conditions for Validity of Marriage:

Two conditions are to be fulfilled to constitute validity of marriage:

1. Parties to Marriage should have the capacity to marry, which in Private International Law called as the
question of essential or material validity.
2. Parties to Marriage must have performed necessary rites and ceremonies, which in Private International
Law called as the question of Formal Validity.

The above two conditions should be fulfilled for the marriage to be valid.

In De Renville v. De Renville(1948)P100 the hon’ble court laid down conditions for conferment of status of
marriage as:

1. That the marriage conforms in its essentials with the law of each party’s domicile at the time of
marriage; and

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 2. That it has been performed in accordance with the formal requirements of the law of the place where the
ceremony takes place, generally called Lex loci celebrationis.

Essential validity of marriage / capacity to marry:

Essential validity involves three elements:

1. An agreement, which may be affected by mistake, duress, undue influence or fraud;

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 rule has been laid down by House of Lords in Brook vs Brook (1861), 9 H.L.C. 193, 1 E.R. 703. In this
case, parties were domiciled in England, and under English law they were within the prohibited relationship.

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The solemnized their marriage in Denmark where such marriages are valid. The House of Lords held the
marriage as void because he parties lacked the capacity to marry under their common ante-nutial domicile.

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. 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 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 (law of the
place where a contract of marriage is performed). It was also held that the consent is governed by the law of the
domicile of the parties. The question that arises is as to which lex domicilii (law of the person’s domicile) 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(2005) 255 D.L.R. (4th) 757 (BC), 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.

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 GOVERNING MATTERS OF CAPACITY TO MARRY:

 Consent of parties
 Non-Age
 Prohibited degrees of relationship

2. Intended Matrimonial Home Doctrine

An alternative approach is that the law of the intended matrimonial homes governs the essential validity of a
marriage. 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.
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. 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.

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.

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 in
capabilities which are imposed to protect the public interest of countries, rather than the interest of the
parties to the marriage.

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Exception to the Lex Loci Celebrationis Rule

There are certain exceptional circumstances in which a marriage may be recognized even though it has followed
the law of the place of celebration of the marriage. The general rule of private international law is that the
formal validity of marriage is governed by the law of the place of celebration of marriage. Cheshire while
explaining the formal validity of marriage celebrated within common law system has espoused that ‘common
law marriage is better known as cannon law marriage since it emerged at a time when the cannon law governed
the matrimonial affairs of Christian throughout Western Europe.’ The only essential to the formal validity of a
marriage required by common original law was that parties to the marriage must take each other as husband and
wife.

In Kent v. Burgess (1840) it was held that a marriage shall be regarded as formally valid if performed in non-
compliance with the local formalities due to some insuperable difficulty. Therefore, the marriage in Belgium
was held void for non-compliance with the Belgian residence requirements there being no insuperable
difficulties for the parties to wait for the prescribed six months period. The term ‘insuperable difficulty’ has
been expressed in various ways.

Lord Eldon in Sussex Peerage case (1844) was clear that the ‘parties can invoke the common law if they could
not avail themselves of the law of the place of celebration or if there was no local law’.

In Kochanski v. Kochanska (1958) the English court again upheld the rule that the parties to the marriage can
invoke common law in case they could not avail themselves of the local laws of the place of celebration of
marriage due to insuperable difficulty. In this instant case two polish nationals, occupants of displaced persons’
camp in Germany, to whom everything German was anathema, were married by a Catholic Priest without
compliance with the local forms.

Conclusion

The problem in conflict of law is regarding classification of connecting factor. In a law suit regarding validity of
marriage involving foreign element the court often finds it difficult to classify whether a particular requirement
is related to formality only or is more than that and extends to capacity of parties to the marriage. There are
some areas where confusion is recognizable. This is what happened in Ogden v. Ogden (1908) case. In this case
the English court applying English conflict of laws rule has characterized ‘parental consent’ as a matter of form.
After that English court applied Lex Fori and upheld the validity of the marriage in question. While, the
marriage was already held null and void by the French court by its municipal law for the want of required
parental consent. Thus, in conflict of laws the areas of confusion are,

i) Characterization of the connecting factor,

ii) Characterization of cause of action and allocation of it to correct legal category, &

iii) Post characterization application of law i.e. choice of law.

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Bibliography

 Paras Diwan, Peeyushi Diwan “Private International Law-Indian and English” (Fourth Revised
and Updates Edition, 1998)
 Cheshire & North, Private International Law, thirteenth edn,
 http://shodhganga.inflibnet.ac.in/bitstream/10603/26528/10/10_chapter%203.pdf
 https://in.answers.yahoo.com/question/index?qid=20080207174420AACGmRJ
 http://www.lawyersclubindia.com/forum/Legal-validity-of-marriage-of-indians-abroad--
61079.asp#.Vc6vmqqko
 http://moia.gov.in/pdf/Marriages_to_Overseas_Indians_a_Guidance_Booklet.pdf

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