[TYPE THE COMPANY NAME]

EFFECT OF MARRIAGE ON PROPERTY

RIGHTS
PRESENTED TO: FACULTY OF CONFLICT OF LAW

[Type the author name]

PRESENTED BY: RICHA JHA, 5TH YEAR, ROLL. 52

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ACKNOWLEDGEMENT

The encouragement, help, guidance and support of many well wishers have helped me in
accomplishment of my project entitled “EFFECT OF MARRIAGE ON PROPERTY
RIGHTS”.

Technical contributions apart, the moral and assistance that was extended by a family friend,
who forms part of research team at Center for Internet and Society which was the mainstay
for successful completion of this project, needs its due appreciation as well.

I will be failing in my duty if I do not acknowledge and convey our special thanks to Mr. P.P
Rao, Faculty of Conflict of Law for his unstinted encouragement throughout the effort. I
would also like to extend my heartfelt gratitude to my parents and all those unseen hands that
helped me out at every stage of our project work.

Thanking all for their aid...

RICHA JHA (R. No. – 52)

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TABLE OF CONTENTS

RESEARCH METHODOLOGY...........................................................................4

REFERENCES.....................................................................................................4
A. EFFECT OF MARRIAGE ON PROPERTY RIGHTS -
INTRODUCTION....................................................................................................5
B. WORKING OF CONFLICT OF LAW IN MARITAL
ISSUES.....................................................................................................................6
C. MARITAL PROPERTY RIGHTS – RELATED ISSUES......................................8

1. PUBLIC POLICY...........................................................8
2. THE CHOICE OF LAW.................................................9

D. VALIDITY OF THE MARRIAGE ...........................................................10

E. CONFLICT OF LAWS AND MARITAL PROPERTY........................................11
F. LAW OF CAPACITY IN INTERNATIONAL MARRIAGES............................14
G. NEED FOR CONFLICT OF LAW RULES IN MARITAL PROPERTY
ISSUES...................................................................................................................16
H. ''LEX LOCI CELEBRATIONIS
''............................................................................19
I. CONFLICT OF LAW ON MARITAL PROPERTY-CASES ..............................20

1. Ogden v Ogden.............................................................20
2. Schwebel v Ungar.........................................................21
3. Lawrence v Lawrence...................................................21

J. POSITION IN INDIA ...........................................................................................22

K. CONCLUSION......................................................................................................24
L. BIBLIOGRAPHY..................................................................................................25
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RESEARCH METHODOLOGY
The researcher has adopted a purely doctrinal method of research as the research paper
discusses the matter in which no field work is required for the same and the Doctrinal
approach is perfectly suited for the same. The researcher has made extensive use of several
libraries, namely, the library at the Chanakya National Law University, Indian Law Institute,
New Delhi, the Indian Society of International Law library, and also the Internet sources.

SCOPE AND LIMITATIONS:

Though the detailed and extensive study of This project, The subjective nature of the present
project topic is so diversified in its approach that one can talk volumes on the topic. The researchers
are limited by the resource availability and limitations and are unable to deal in the most exhaustive
way with the topic and deal with the sub areas (sub heads) at length.
SOURCES OF DATA AND MODE OF CITATION :

The researcher has used secondary sources of data in the project like Articles , Websites,
Journals and Books.The researchers have followed a uniform mode of citation throughout the
course of this research paper.

________________________________________________

REFERENCES
1. Arendell v. Arendell
2. Bilasraj Joharmal v. Shivnarayan Sarupchan
3. Birmingham Water Works Co. V. Hume, 121 Ala. 168, 25 So. 806 (1898).
4. Brien dit Desrochers v. Marchildon
5. De Nicols v. Curlier,
6. Fisher v. Fisher
7. Kashinath Govind v. Anant Sitaramboa
8. Krishnaji Pandurang Sathe v. Gajanan Balwant Kulkarn.
9. Lawrence v Lawrence
10. Mahadeo Govind Suktankar v. Ramachandra Govind Suktankar
11. Mason v. Fuller
12. mcanally v. O'Neal
13. Ogden V Ogden
14. Mueller v. Mueller,
15. Nelson v. Goree's Adm'r, supra note 3;
16. Nilkanth Balwant Natu v. Vidya Narsinh Bharathi Swami
17. Routh v. Her Husband
18. Schwebel v Ungar [1964] 48 DLR (2d) 644.
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A. EFFECT OF MARRIAGE ON PROPERTY RIGHTS

INTRODUCTION

In divorce cases, when a court is attempting to distribute marital property, if the divorcing
couple is local and the property is local, then the court applies its domestic law lex fori. This
becomes much more complicated when local laws allow polygamy. Each state has its own
marital property laws. In some of the spouses receive/give marital property from two or more
simultaneous spouses, while others may only receive/give from one spouse only, depending
on whether their home province allows polygamy.

The case becomes even more complicated if foreign elements are thrown into the mix, such
as when the place of marriage is different from the territory where divorce was filed; when
the parties' nationalities lex fori and residences do not match; when there is property in a
foreign jurisdiction; or when the parties have changed residence several times during the
marriage.1 Each time a spouse invokes the application of foreign law, the process of divorce
slows down, as the parties are directed to brief the issue of conflict of laws and provide
translations of the foreign laws. Different jurisdictions follow different sets of rules. Before
embarking on a conflict of law analysis, the court must determine whether a property
agreement governs the relationship between the parties. The property agreement must satisfy
all formalities required in the country where enforcement is sought.

Whereas commercial agreements or prenuptial agreements generally do not require legal

formalities to be observed, when married couples enter a property agreement, stringent
requirements are imposed, including notarization, witnesses, special acknowledgment forms.
In some countries, these must be filed or docketed with a domestic court, and the terms must
be “so ordered” by a judge. This is done in order to ensure that no undue influence or
oppression has been exerted by one spouse against the other. Upon presenting a property
agreement between spouses to a court of divorce, that court will generally assure itself of the
following factors: signatures, legal formalities, intent, later intent, free will, lack of
oppression, reasonableness and fairness, consideration, performance, reliance, later
repudiation in writing or by conduct, and whichever other concepts of contractual bargaining
apply in the context.

1
Dicey and Morris, “Conflict of Laws” (13th ed., para 23-060) in Atul M. Setalvad, “Conflict of Laws” (Lexis
Nexis Butterworths, Delhi) p. 420.
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B. WORKING OF CONFLICT OF LAW IN MARITAL ISSUES

In the absence of a valid and enforceable agreement, here’s how the conflict of law rules
work:

1. Movable v. Real Estate - In general, applicable matrimonial law depends on the

nature of the property. Lex situs is applied to immovable property i.e., real estate,
and the law of matrimonial domicile applies to movable property, provided there
has been no subsequent change in the spouses’ domicile.2

2. Full Mutability Doctrine - property relations between spouses are governed by their
latest domicile, whether acquired before or after the marriage. This is also the norm
in England, except for a few cases where severe injustice results from a harsh
application. In those cases, the court also examines whether newly acquired
property can be traced back to property owned before the change.

3. Immutability Doctrine - the original personal law of the parties at the time of
marriage continues to govern all property including subsequently acquired property,
regardless of a later change in domicile or nationality. This is the Continental
approach in France, Germany and Belgium. Also, with certain reservations, see Art.
7 of the 1976 Hague Convention on Marriage and Matrimonial Property Regimes.
Also in Israel: “property relations between spouses shall be governed by the law of
their domicile at the time of the solemnisation of the marriage, provided that they

2
1) For the purposes of Rules 27 to 30, the domicile of an individual shall be determined as follows:

(a) an individual is domiciled in the U.K. if he is resident in, and the nature and circumstances of his residence
indicate that he has a substantial connection with U.K.;

(b) an individual is domiciled in a particular place in the U.K. if he is domiciled in the part of the U.K. in which
that place is situated and is resident in that place;

(c) an individual who is not domiciled in the U.K. in accordance with paragraph (a) of this clause is domiciled in
another Regulation State or Convention State if by the law of that State he is domiciled in that State;

(d) an individual is domiciled in a State other than a Regulation State or Convention State if he is resident in,
and the nature and circumstances of his residence indicate that he has substantial connection with that State…
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may by agreement determine and vary such relations in accordance with the law of
their domicile at the time of making the agreement”. Note that the Israeli
application of the Immutability Doctrine does not distinguish between personal and
real property. Both are subject to the law of domicile at marriage.

4. Partial Mutability or Mutability of New Acquisition - this is the American approach

to conflicts of law in matrimonial property division cases. All movable property
acquired during the marriage is subject to the parties’ domicile law at the time of
acquisition, and not that of the original or intermediate domicile. What was acquired
before the marriage is governed by the law of the parties' domicile at the time of
marriage. Thus, if rights vested in a property when and where it was purchased, it
would not be adversely affected by a later change of domicile.
5. Lex Fori - In many cases, courts simply avoid this complicated and expensive
analysis by applying their local law to the parties' entire property, even if there is a
foreign element. This is based on the assumption that laws around the world are
basically similar in their treatment of marriage as a co-partnership. Since the
partnership can be placed in the forum, the forum’s law applies to all its aspects.

Note that Lex Fori also applies to all procedural relief as opposed to substantive relief. Thus,
issues such as the ability to grant pre-trial relief, procedure and form, as well as statutes of
limitations are classified as “procedure” and are always subject to domestic law where the
divorce case is pending.

C. MARITAL PROPERTY RIGHTS – RELATED ISSUES

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In conflict of laws, the issue of marriage has assumed increasing public policy significance in

a world of increasing multi-ethnic, multi-cultural and multi-national relationships. When
marriage-related issues arise between couples with diverse backgrounds, questions as to
which legal systems and norms should be applied to the relationship naturally follow with
various potentially applicable systems frequently conflicting with one another.

1. PUBLIC POLICY

The central political issue for each state is the choice between potential conflict and
accommodation, between assimilation and the preservation of minority rights in a
diversified society. Many nations formally adopt a policy to achieve a full cultural integration
and a uniform identity for all their citizens no matter what their ethnic, religious or social
origins. Regardless whether this is a realistic aspiration, it contrasts starkly with a policy to
allow "discrete and insular minorities" to form and retain their individual identities which
may be seen as a question of equality: as to whether a modern state should be aiming for
equality between its citizens or equality between groups.

As an institution, marriage represents a significant set of values which helps to define how

each country or state wishes to constitute the family unit, marital property matters,
disallowance of polygamy, regulate some aspects of sexual behavior, and plans for the
continued growth of population. The state may also allow religious qualities to be attributed
to the relationship or, as an aspect of the constitutional separation in
some countries between church and state, view it as no more than a form of domestic
partnership. It will also reflect deeply held beliefs and norms describing at which age people
may marry, the number of people who may enter the relationship, and whether same-sex
marriage is acceptable. Questions on the legitimacy of any children may also be difficult to
resolve.

So long as people remain in their own countries or states, they may hopefully understand the
prevailing values and, whether willingly or not, decide on the extent to which they will
conform. But, as attitudes change and travel between states becomes
routine, governments have found it increasingly necessary to decide what forms of ceremony
or "common law marriages" they will allow to create valid marriages or conjugal unions in
their own territories, and whether all forms of marriage, lawfully recognized in
another sovereign state, will be recognized for the purposes of immigration and access to
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social welfare and other benefits nominally available to spouses. 3The problem for each state
as it acts as a host for new cultures and belief systems is that a failure to accept and
accommodate the new social realities may simply drive the practice of the many customs
underground where the potential for abuse is significant. On the other hand, many would
agree that the host country may be permitted to stipulate the basic tenants of their law upon
whom ever wishes to live in their country. If the law as officially published and the reality on
the ground differ dramatically, this poses serious questions about the role of the judiciary in
protecting the human rights andcivil rights of the men, women and children who find
themselves victimized by the failure of the law to offer them protection.

2. THE CHOICE OF LAW

The standard choice of law rules for adjudicating on issues relating to marriage represent a

balance between the various public policies of the laws involved:

1. Status and capacity- Status and capacity are defined by the personal laws of the

parties, namely:

- The lex domicilii or law of the domicile in common law states, and

- either the lex patriae or law of nationality, or law of habitual residence in civil law states).

The personal laws will usually define status in rem so that it is recognised wherever the
individual may travel subject only to significant public policy limits. Hence, for example, as
an aspect of parens patriae, a state will define the age at which a person may marry. If such a
limitation could simply be evaded by the young person traveling abroad on a holiday to a
country with a lower age limit, this would clearly breach the policy of the "parental" state.
The same principle would apply to an adult who wished to create a polygamous marriage or
to evade a restriction on consanguinity. In Family Law as opposed to the Law of Contract,
there is also a strong case for legal capacity to be universally enforced to limit to ability of
individuals to evade normally mandatory rules. The claims of the lex loci celebrationis to
apply are weak given that the significance of the location may be no more than the
convenience of their laws to those wishing to marry.

D. VALIDITY OF THE MARRIAGE

3
Collins, Dicey and Morris, “The Conflict of Laws” (12th ed., vol. 2, Sweet and Maxwell, London) p. 939.
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The form of the marriage is governed by the lex loci celebrationis or the law of the place
where the marriage was celebrated or occurred, and is usually considered definitive on
whether the ceremony or legal recognition has been effective to create the relationship of
marriage and marital rights(see nullity). The validity of the marriage is governed by the
capacity of the parties to marry each other. Capacity to become a spouse, is usually governed
by the domicile of the parties.

1. Lex fori

The lex fori, or proper jurisdiction to adjudicate legal disputes, will usually be the state where
the spouses have sought to make their matrimonial home. This state will usually have a clear
and direct interest in the applications of its policies to regulate the nature of relationships
permitted to confer the status of husband and wife within their territorial boundaries. It may
also attempt to regulate the behaviour of those who wish to cohabit within their territory
although this may contravene privacy rights.

There are serious problems of characterisation and the possibility of an incidental question in

the Family Law field because of the strength of the prevailing attitudes and prejudices on
sexual propriety. Hence, for example, given the increasing prominence given to the
phenomenon of paedophilia, the issue of age in relation to sexual activity has come to
represent a major issue for many Western states and, no matter what the claims of the lex loci
celebrationis to be applied as the determinant of the validity of any alleged marriage
involving young adults, the policies of the personal laws of the parties and the lex fori are
often given greater prominence.

Some think that these cultural responses to different customs are given impetus by an
underlying lack of respect for people of different race, religion or ethnicity. Whereas
traditionally the law is viewed as driven by the Doctrine of Comity and the principles of
reciprocity, those who administer and apply the law are undoubtedly affected by local social
or political pressures to disapprove some customs of "foreign" states.

E. CONFLICT OF LAWS AND MARITAL PROPERTY.

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Where a man and a woman domiciled in different states are married in a third, and perhaps go
to live successively in a fourth and a fifth, the problem arises, in the absence of an
agreement4between the parties, as to what law shall determine their relative rights in property
owned at the time of marriage or acquired thereafter. With regard to immovables 5 the result;
is clearly established: the law of the situs will normally refuse to allow the application of
foreign rules! to determine the title to its very domain. 6But in dealing with movable goods it
is permissible to adopt a rule of greater convenience, since the situs of such property is of less
significance. 7

The desirability of applying a single uniform regime to the entire estate of the parties at the
time of marriage is sufficient to justify eliminating the law of the situs from the field of
competing possibilities. 8And since the place of celebration of the marriage may be purely
fortuitous, its law should not effect such far-reaching consequences. 9The pre-marital domicil
of the wife would hardly be chosen in preference to that of the husband. 10There remain for
serious consideration the pre-marital domicil of the husband, which automatically becomes
that of the wife, and the subsequent “matrimonial domicil.” In most of the cases that have
arisen the domicil of the husband and the matrimonial domicil have coincided, at least
temporarily, and the law of this jurisdiction has been followed on one ground or the other.
11
Where there is a diversity, however, it might be argued that the law of the matrimonial
domicil should prevail, on the basis of its greater interest in the new relationship and the
probability that controversies in relation to the property will arise in its forum.

Yet the application of this rule may prove inconvenient if the vesting of rights must await the
adoption of the new domicil. To define “matrimonial domicil” as the place of residence

4
Express contracts purporting to fix the rights of husband and wife in all the property which they own or may
acquire will be enforced, in the absence of a strong opposing policy of the state of situs, as to movables
wherever situated, despite a change in the domicil of the parties.
5
Duncan v. Lawson, 41 Ch. D. 394 (1889); Young v. Young, 5 La. Ann. 611 (1850); Kneeland v. Emsley, 19
Tenn. 620 (1838); CONFLICT OF LAWS RESTATEMENT (Am. L. Inst. 1927) § 227.
6
This is true whether the property is owned at the time of marriage or subsequently acquired.
7
In determining succession to movables, for example, the law of the decedent's domicil is applied to the validity
of the will as well as to the question of what persons inherit in case of intestacy.
8
Although this reasoning seldom becomes articulate in the decisions, the rejection of the law of the situs is
implicit in the cases cited in note 8, infra.
9
Arendell v. Arendell, 10 La. Ann. 566 (1855); Fisher v. Fisher, 2 La. Ann. 774 (1847); Land v. Land, 22 Miss.
99 (1850); Brien dit Desrochers v. Marchildon, 15 Rapp. Jud. Que. (c.s.) 318 (1898).
10
Fisher v. Fisher, 2 La. Ann. 774 (1847).
11
Mason v. Fuller, 36 Conn. 160 (1869); Routh v. Her Husband, 9 Rob. 224 (La. 1844).
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intended by the parties at, the time of marriage would avoid this difficulty, but would be
inconsistent with the general principle that presence is necessary to the acquisition of a
domicil of choice. 12Furthermore, this criterion might often cause property to depend upon a
temporary 13whim of the parties. And so for the sake of certainty, the domicil of the husband
at the time of marriage should determine the respective property rights of the married couple,
14
even where they make their residence in a different jurisdiction.

In dealing with the subsequent acquisition of single items of property, the need for a uniform
regime has not always 15availed to cause a departure from the usual rule that the law of the
situs governs the passage of title to property. 16Yet it would seem that the domicil at the time
of the acquisition is more vitally interested in the relative rights of husband and wife than is
the situs. Furthermore, the application of the law of the situs might cause great confusion in
the ownership of the family possessions. The concern of the situs in the certainty of titles to
property in its jurisdiction might be safeguarded by statutory provisions protecting bona fide
purchasers and attaching creditors. In any case that interest would seem to be offset by the
similar interest of the domicil, to which the property will normally tend to move; and this
seems to be recognized by the courts. 17

The House of Lords has held, in the case of a marriage governed at the outset by French law,
that property rights in future acquisitions are determined by the law of the husband's domicil
at the time of marriage, on the ground that there is a tacit contract to abide by the provisions
of the French code despite changes of domicil. 18But the fiction of a contract formed by two
unsuspecting persons has prevailed nowhere else, 19and probably would not be extended by
the English courts to cover marriages made under less explicit statutory provisions. 20

12
Conflict Of Laws Restatement (Am. L. Inst. 1930) § 18.
13
Although some courts speak of the matrimonial domicil as that intended by the parties, no case has followed
this principle where the intention was not actually carried out. In such situations, outright denial of the principle
has been avoided only by holding that the intention was not adequately proved.
14
See note 8, supra.
15
The law of the situs has sometimes been held to apply. Shumway v. Leakey, 67 Cal. 458 (1885). This view is
adopted by CONFLICT OF LAWS RESTATEMENT (Am. L. Inst. 1927) § 311.
16
Green v. Van Buskirk, 7 Wall. 139 (U. S. 1868)
17
Nelson v. Goree's Adm'r, supra note 3; Birmingham Water Works Co. V. Hume, 121 Ala. 168, 25 So. 806
(1898).
18
De Nicols v. Curlier, [1900] A. C. 21.
19
. The doctrine of a tacit contract was expressly repudiated in Saul v. His Creditors, 5 Mart. (N.S.) 569 (La.
1827); Matter of Majot, 199 N. Y. 29, 92 N. E. 402 (1910)
13 | P a g e

A further problem concerns the effect of a change of domicil of the spouses on their relative
property rights. 21If the law of the situs is regarded as the proper law to be applied to newly
acquired property, a change in the situs of the property may give rise to the same problem. A
change in domicil or situs, with nothing more, is not sufficient to alter the property rights of
husband and wife. 22

23
This is emphasized by the Conflict of Laws Restatement, which uses the situs as the
24
significant factor, but provides the qualification that rights shall remain unaffected by
transportation of the property into a new jurisdiction only until there has been some new
dealing with them there. What sort of “new dealing” is required is not specified. It seems
settled, however, that a single exchange of the goods for other property does not change the
nature of the property rights in the proceeds. 25It would seem indeed that the parties' vested
rights must remain undisturbed until the proceeds of the original goods can no longer be
identified. 26

F. LAW OF CAPACITY IN INTERNATIONAL MARRIAGES

20
In the De Nicols case the House of Lords relied heavily on the French Code, which purported to establish
rules covering every possible situation. see DICEY, CONFLICT OF LAWS 717.
21
The problem is the same whether the property involved belonged to one of the spouses at the time of marriage
or was subsequently acquired
22
Gluck v. Cox, 75 Ala. 310 (1883); Mueller v. Mueller, 127 Ala. 356, 28 So. 465 (1899); Estate of Drishaus,
199 Cal. 369, 249 Pac. 515 (1926);
23
§ 312.
24
See note 12, supra.
25
Stephen v. Stephen, 284 Pac. 158 (Ariz. 1930); Succession of Robinson, 23 La. Ann. 174 (1871)
26
See Mcanally v. O'Neal, 56 Ala. 299, 302 (1876).
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ONE of the most intricate questions that can arise out of the conflict of laws is that of the
validity of international marriage; and the effect of invalidity is so disastrous, both materially
and morally, that the right solution of the problem is one for which above all others the
conscientious lawyer should anxiously seek. Not only is the problem intricate in its nature,
but so various are the solutions reached in the different civilized states that no lawyer can
safely advise in the matter without some familiarity with the law of each country involved in
the marriage.

Marriage is now regarded in all civilized states as a status based upon legal consent of the
parties; this consent, however, is not self-operative, but gives rise to the status only as the
result of the consent of the proper sovereign power, acting through its law. So far as the
parties are concerned, assuming their consent in fact, nothing further is required for a valid
marriage but their capacity to give a legal consent; this capacity of parties is the greatest
difficulty involved in determining the validity of an international marriage.

There is a fundamental difference between the common law and the civil law of Europe in
their conception of personal capacity. The common law regards a man as a natural creature; if
he is alive, if he has a mind and exercises it, if he is a free and independent being, the law
accepts him as such. A few cases are, to be sure, dealt with artificially: an infant, though he
may in fact have a consenting mind, is incapable of contracting; a married woman, though
she may in fact be the moving spirit of the family, is dealt with as under her husband's
coercion; a corporation, though in fact an aggregation of individuals, is dealt with as a single
entity. These are recognized as exceptions to the general rule, based upon reason, but
technical and arbitrary.

In European countries, on the other hand, natural facts and powers of human life are nothing
to the law until the law makes them so. If the law will, a man lives; if it so decree, he dies
before the law, though his natural life continues unchanged. If the law endows him with
power to speak, to will, to act, he may effectively do so; if not, then so far as legal results go,
his speech is inarticulate, his will a mere thought, his act is as if never done. Until the law
gives a man any capacity, he is not regarded as possessing it. Civil capacity, in short, is
altogether a creature of the law, and is dependent, therefore, upon some law having conferred
it. Once conferred, the capacity to act becomes a status, continuing until taken away again by
the proper law, as may happen by civil death, interdiction, or bankruptcy.
15 | P a g e

Since civil capacity is a status, it must (according to this view) be conferred by the proper
law, which is the law of the sovereign who has power over the status. Down to the French
Revolution that sovereign was regarded in all European states as the sovereign within whose
territories the individual was domiciled; status (including capacity) was governed by the law
of the domicil. capacity, once regulated by the law of the individual's domicil, is now
regulated by the law of his nation. This doctrine, so clearly set forth in the codes and the
treatises of the continent, and stated as if it were to be applied in all cases, is nevertheless
subject to many exceptions when actually applied by courts in litigated cases. Where the
capacity created by the law of the status appears to be for the benefit of citizens of the forum,
the doctrine is rigorously applied; but where it would operate to the fraud, or even to the
disadvantage of citizens of the forum, the courts are quick to find an exception. Thus, in the
case of De Lizardi v. Chaize, 27where the defendant was an infant by his own law, though he
would have been of age in France, the Court of Cassation said: —

“It is proper in applying the foreign statute to enforce restrictions and limitations without
which there would be constant danger of error or surprise to the prejudice of French
citizens. Though on principle one is bound to know the capacity of the person with whom one
enters into a contract, the rule cannot be so strictly and rigorously applied with regard to
foreigners contracting in France. Civil capacity may in fact be easily verified in the case of
transactions between French citizens; but it is otherwise as to transactions that take place in
France between Frenchmen and foreigners. In such a case, the Frenchman cannot be held to
know the laws of various nations, and their provisions as to minority and majority and the
extent of the power of foreigners to make agreements within the limits of their civil capacity.
It is sufficient for the validity of the contract that the Frenchman has acted without laches
and negligence and in good faith.”

G. NEED FOR CONFLICT OF LAW RULES IN MARITAL

PROPERTY ISSUES

27
21 Clunet's Journal du Droit Internat. Privé 417.
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Matrimonial property is widely prevalent in civil law countries such as continental Europe
and Latin American nations. This concept has not yet received its due importance in India
and issues relating to this concept have not been agitated vehemently before Indian courts so
far. However, with the globalization, privatization and liberalization and large scale
immigrations that are taking place, in these countries too, legal issues concerning the
properties that may have been acquired or purchased or raised in India or in such jurisdictions
during the subsistence of marriage are becoming more and more important.

The current challenge is that if one of the spouses settled in civil law and / or common law
countries, how to address their problems. India has large scale NRI population in the USA
and the UK, not least to mention in African and Middle-East Regions. In the USA, 41 states
follow the Community Property System while other follows Separate Property System. Under
the CPS, predetermined assets of husband and wife either by law or contract are treated as a
single mass and on the termination of marriage, either by death or divorce is shared equally. –
advantage is that the danger of completely disinheriting a widow is checked by imposing
restriction on testation. Whereas, under the SPS – wife is the owner of her property, distinct
from her husband as she had been before her marriage as the husband is, of his. Each spouse
has independent powers of disposition over his or her property without the need for consent
of the other spouse. The sharing of assets of husband and wife is not institutionalized. CPS is
governed by contract or in the absence of contract by the law of state of dominant interest.
The state of dominant interest by and large will depend upon the nature of property.

The problem is not related to immovable property because the law relating to immovable
property is governed by the lex situs (location of property). Since no community of property
right attaches at the time of marriage to the existing assets the chances of conflict regarding
such are reduced to minimum. After marriage while the governing law remains the same lex
situs, but tracing rule also becomes important, i.e. marital rights in assets used to purchase
land will be recognized in the land after purchase – marital interest which attaches to
movable assets acquired by the spouses according to the law of their domicile at the time of
acquisition is recognized and traceable into real property located in another state in which
those assets are invested – rationale – one’s title to money or other assets, is not lost by
moving it across a state line and turning it into some other form of property. Income from
immovable property on receipt whether to be characterized as separate or community
property would depend upon the marital domicile at the time that income is acquired. 
17 | P a g e

As far as movable property is concerned, no state provides for an immediate marital interest
in the movable assets of the other spouse at the time of marriage – the law of domicile of the
party who has acquired the property will be applicable and law of common domicile will be
applicable for such properties after marriage.

In the United Kingdom, governing law depends upon the selection of party the law for
matrimonial property, in absence of such selection; law of matrimonial domicile will be
effective. It is important to note, however, that husband’s domicile is largely taken into
consideration as it is believed that such a rule provides a simple and certain means of
identifying controlling of law. This has serious disadvantage for disserted NRI wives in the
UK.

Looking at home, marriage does not have the legal effect of creating community property,
India has adopted SPS which prevails in England and whatever its pros and cons have been
inherited and applied by our legal and judicial system. Because of this our personal laws
suffer from a serious disadvantage of the Separate Property System namely, the unrestricted
power of testation that empowers one to disinherit one’s spouse, ignoring moral and social
obligation. India has followed the English rules of conflict that in absence of a settlement or a
contract between the parties to a marriage involving a foreign element, the parties to such
marriage shall continue to enjoy properties separately and the marriage will not bring any
change in their separate rights of ownership in the property with their individual and
exclusive right to own and dispose of the properties whether acquired before or during the
marriage. Lot of Indians find legal issues relating to their rights in such properties calling for
solutions as any other person from other jurisdictions. Therefore there is a need for a uniform
set of rules providing for solutions to such conflict of law situations and cannot be avoided.

At international level, the Hague Convention on Matrimonial Property of 1978 does not
provide a solution because it is partial towards the civil law countries, hence, NRI living in
common law countries, USA, UK and many other commonwealth nations cannot depend
upon this convention.

One solution has been proposed for a long time is the changes in our personal laws, but we
cannot wait for long and ignore that large number of Indians have already migrated to
Community Property System countries esp. to continental Europe
18 | P a g e

In view of the above, India needs to understand codify the matrimonial property regimes by
the PIO/NRIs who aspire to settle in those jurisdictions cannot be under estimated.

Indian Succession Act 1925 recognizes pre-marriage contract/settlements for opting out of
existing separate property regime entered into between the parties to a marriage, one of
whom is domiciled in India and the other being domiciled outside India. 28This provision is
intended to harmonize the Indian conflict of law on marital property and safeguard the
interests of Indian who are marrying in jurisdictions where community property regimes are
prevalent.

There are, if at all, no litigation before the Indian courts asserting rights by persons of Indian
origin in the matrimonial properties and therefore the issues of conflict of laws in respect of
PIOs could not be examined.  One of the reasons may be that most of the immigrants so far
have been investing their savings in India and therefore no litigation for asserting share in
matrimonial property could arise, however, this does not mean that India must not prepare
itself to meet the future litigation in the face of globalization.

H. ''LEX LOCI CELEBRATIONIS”

28
Nygh and Davies, “Conflict of Laws in Australia” (7th ed., para 32.2) in Atul M. Setalvad, “Conflict of Laws”,
(Lexis Nexis Butterworths, Delhi) p. 410.
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The ''lex loci celebrationis” is the Latin term for "law of the place where the marriage is
celebrated" in the conflict of laws. Conflict is the branch of public law regulating
all lawsuits involving a "foreign" law element where a difference in result will occur
depending on which laws are applied.29

Explanation-

When a case comes before a court and all the main features of the case are local, the court
will apply the lex fori, the prevailing municipal law, to decide the case. But if there are
"foreign" elements to the case, the forum court may be obliged under the conflict of laws
system to:

1. Consider whether the forum court has jurisdiction to hear the case (see the problem
of forum shopping);
2. Characterise the issues, i.e. allocate the factual basis of the case to its relevant legal
classes; and
3. Apply the choice of law rules to decide which law is to be applied to each class.

The lex loci celebrationis is a choice of law rule applied to cases testing the validity of
a marriage. For example, suppose that a person domiciled in Scotland and a person habitually
resident in France, both being of the Islamic faith, go through an Islamic marriage ceremony
in Pakistan where their respective families originated. This ceremony is not registered with
the Pakistani authorities but they initially establish a matrimonial home in Karachi. After a
year, they return to Europe. For immigration and other purposes, whether they are now
husband and wife would be referred to the law of Pakistan because that is the most
immediately relevant law by which to decide precisely the nature of the ceremony they went
through and the effect of failing to register it. If the ceremony was in fact sufficient to create
a valid marriage under Pakistani law and there are no public policy issues raised under their
personal laws of lex domicilii or habitual residence, and under the lex fori, they will be treated
a validly married for all purposes, i.e. it will be an in rem outcome.

I. CONFLICT OF LAW ON MARITAL PROPERTY-CASES

29
Collins, Dicey and Morris, “The Conflict of Laws” (12th ed., Vol.2, Sweet and Maxwell, London) p. 962.
20 | P a g e

1. Ogden V Ogden

The notorious case of Ogden v Ogden30. A domiciled Frenchman,2 who was 19, married a
domiciled English woman in England without first obtaining the consent of his surviving
parent, which he was required to do by Article 148 of the French Civil Code. The husband
obtained an annulment of the marriage in a French court on the ground of want of consent.
The wife then went through a ceremony of marriage in England with a domiciled
Englishman. The second ‘husband’ petitioned for a decree of nullity on the ground that at the
time of the ceremony his ‘wife’ was still married to the Frenchman. The court had to decide
whether the first marriage was valid. There were two connecting factors: the husband was
domiciled in France; the marriage was solemnised in England. This indicates the existence of
two rules:
- The essential validity of the marriage (that is the husband’s capacity) must be
governed by French law
- The formal validity of the marriage ceremony is determined by English law.

So what the English court had to decide was whether the French law, the purpose of which
was to protect French minors from marrying without parental permission, applied to a
marriage in England. If the French rule was characterised as within matters of essential
validity it would apply to marriages wherever they were celebrated and the marriage in
England would accordingly be void. The second marriage would then, of course, be valid. If,
on the other hand, it was characterised as a matter of formal validity, it would be governed by
the lex loci celebrationis (English law) and the first marriage would be valid (English law
rules that a marriage of a minor without parental consent is valid). The English court would
therefore come to a different conclusion from the French court. It would, of course, enable
the second husband to extricate himself from his marriage (which would as a result be
bigamous).
The Court of Appeal concluded that the French rule was formal. Indeed, it suggested that
every rule requiring parental consent to a marriage must be characterised as formal. The
result was that Mrs Ogden was in the eyes of English law not Mrs Ogden but the wife of a
Frenchman. Of course, French law denied this: if asked it would say she was married to her
second husband.

30
Ogden v Ogden [1908] P 46.
21 | P a g e

2. Schwebel v Ungar

31
The facts of Schwebel v Ungar (A Canadian Supreme Court decision) are that a Jewish
husband and wife domiciled in Hungary married in Hungary. They later decided to emigrate
to Israel. While en route in Italy the husband divorced his wife by issuing a Jewish bill of
divorcement (known as a ‘get’). Under the law of Hungary (their domicile) and Italian law,
the divorce was invalid, but it was recognised by the law of Israel. They acquired a domicile
of choice in Israel. Subsequently, the wife went to Toronto and, while she was still domiciled
in Israel, married a second husband. He brought proceedings for nullity on the ground that the
marriage was bigamous. The Supreme Court of Canada held that the marriage was valid.
32
There are different interpretations of this case but it is possible that what the court was
doing was upholding the second marriage without recognising the divorce. If this is right, it
means that the court decided the incidental question (the validity of the divorce) by the
conflict rules of Israel, the country whose law governed the main question (the wife’s
capacity to marry), and not by the conflict rule of the forum.

3. Lawrence v Lawrence

The facts of Lawrence v Lawrence 33are that the first husband and his wife married in Brazil.
Subsequently, the wife divorced the husband in Nevada (this was not recognised in Brazil)
and the next day married the second husband in Nevada. The second husband petitioned for a
declaration as to the validity of this second marriage. The incidental question arose from the
fact that, under Brazilian law – the law of the wife’s domicile – to which English choice of
law rules referred capacity to marry, she lacks capacity to marry the second husband. The
Court of Appeal (by a number of routes which will be discussed later in this guide) upheld
the validity of the second marriage. They did this by giving primacy to the divorce
recognition issue at the expense of that of capacity to marry.
J. POSITION IN INDIA34

31
Schwebel v Ungar [1964] 48 DLR (2d) 644.
32
See Dicey and Morris, p.48.
33
Lawrence v Lawrence [1985] Fam 106.
34
Castel and Walker, “Canadian Conflict of Laws” (6th ed., para 22.1) in Atul M. Setalvad, “Conflict of Laws”,
(Lexis Nexis Butterworths, Delhi) p. 411.
22 | P a g e

An Indian court must not entertain any action for a declaration as to title to, or division of,
foreign marital immovables or for possession of such an immovable. 35 However, in respect of
the foreign marital immovable property the courts have retained a limited jurisdiction against
persons located within their jurisdiction, if there is equity between the parties arising from the
contract of marriages. In such cases, declaration of title to foreign land may be granted if
otherwise there is no dispute as to its title.36
The courts in India assume jurisdiction in suits pertaining to marriages affecting property
situated in a foreign country, or for preservation or protection of a trust fund situated in a
foreign country, if the parties are in India but they will not interfere with an administration of
foreign trusts.37 Further, a court in India, in the exercise of its equitable jurisdiction may order
payment of interim relief against a defendant who has been in wrongful possession of marital
foreign property.38

The general rule is:

“All rights over, or in relation to, an marital immovable land are … governed by the law of
the country where the immovable is situated (lex situs)”.39
The general rule is that all questions that arise relating such immovable property situated
abroad are to be determined by applying the lex situs.40This rule is based on the fact that
applying any other system of law may be ineffective if the lex situs does not recognize the
rights created by that other system. The only exception to the general rule is that some purely
contractual situations can be determined by the lex fori where the order of the court can be
made effective against a defendant in personam. There appears to be no international
convention on the subject.41
This principle not only to English, but also to foreign marital immovables, to the limited
extent42 that English courts are called upon to determine rights over rights over foreign
land .Their decision must be governed by the lex situs,  i.e. the law of the country where the
35
Nilkanth Balwant Natu v. Vidya Narsinh Bharathi Swami, AIR 1930 PC 188; Krishnaji Pandurang Sathe v.
Gajanan Balwant Kulkarni, (1909) 11 Bom LR 352.
36
Kashinath Govind v. Anant Sitaramboa, (1899) ILR 24 Bom. 407.
37
Bilasraj Joharmal v. Shivnarayan Sarupchan,  AIR 1944 PC 39.
38
Mahadeo Govind Suktankar v. Ramachandra Govind Suktankar, AIR 1922 Bom 188.
39
Rule 117, Dicey, Collins and Morris, “The Conflict of Laws” (12th ed., Vol.2, Sweet and Maxwell, London) p.
960.
40
Atul M. Setalvad, “Conflict of Laws” (Lexis Nexis Butterworths, Delhi) p. 419.
41
The general rule set out above is, however, internationally recognized. The Hague Convention on the
Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971 accepts that a
foreign judgment on a question relating to immovable property situated in the country whose court is
considering whether the judgment should be recognized or enforced: Art. 10(3).
42
Rule 116, Collins, Dicey and Morris, “The Conflict of Laws” (12th ed., Vol.2, Sweet and Maxwell, London) p.
945.
23 | P a g e

land is situated. This is because the sovereign of the country where the land is situated has
absolute control over the land within his dominions: he alone can bestow effective rights over
it; his courts are, as a rule, entitled to exercised jurisdiction over such land.

K. CONCLUSION
24 | P a g e

The rules of married life – e.g., the obligations of the spouses to one another, and the
obligation of parents to their children – are usually determined by whatever jurisdiction the
couple is living in at the time.43

Divorce can take place in any state in which either of the married partners is domiciled. The
decree-granting state, if it has power over the marriage (because it is the domicile of either of
the partners) may, and usually does, apply its own standards of dissolution, even if those rules
are radically different from the rules in effect at the time and place in which the parties had
married or where they lived most of their married life.44

In most jurisdictions, parties about to marry have some quite limited powers to affect through
contract their financial rights and obligations post-divorce, and also to affect the marital
property regime during marriage.45Also, in covenant marriage states, parties can choose a
form of marriage which purports to constrain the grounds and procedures for divorce, but the
enforceability of these provisions outside the state of celebration is in question.46

A slight variation: marital property is usually held to obtain its characterization as community
property or separate property according to the state in which the partners are domiciled when
the property is acquired (regardless of the property rules in the state in which the parties were
first married, and regardless of the property rules of the subsequent domiciles).47

BIBLIOGRAPHY

43
Cf. Williams v. Jeffs, 2002 UT App. 232 (in case brought in Utah court involving a marriage domiciled in
Arizona, Arizona law, not Utah law, applies to whether one partner can sue for alienation of affection).
44
One more complication: the jurisdictional rules for divorce-related property division and for divorce-related
custody determinations are different than the jurisdictional rules for a simple dissolution. Courts have
jurisdiction over the res of the marriage, and thus have the power to dissolve the marriage, in the state in which
either partner is domiciled; courts may set financial obligations only when they have personal jurisdiction over
both parties.
45
See, e.g., Brian H. Bix, Premarital Agreements in the ALI Principles of Family Dissolution, 8 DUKE J.
GENDER L. & POL’Y 231 (2001)
46
See, e.g., Katherine Shaw Spaht & Symeon C. Symeonides, Covenant Marriage and the Law of Conflicts of
Law, 32 CREIGHTON L. REV. 1085 (1999) (discussing the issue).
47
See, e.g., LAWRENCE W. WAGGONER, GREGORY S. ALEXANDER & MARY LOUISE FELLOWS,
FAMILY PROPERTY LAW 522 (2nd ed.,1997). As a number of family law practitioners have informed me, in
actual litigation courts will often ignore the technical conflict of laws rules regarding marital property, and
merely apply the forum law to all of the marital property.
25 | P a g e

 “Halsbury’s Laws of India: Competition Law & Trade Practices, Conflict of Laws,

Courts ”, Vol. 10, ed. 2002, Lexis Nexis Butterworths, New Delhi, p. 267.

 Atul M. Setalvad, “Conflict of Laws”, Lexis Nexis Butterworths, London.

 Castel and Walker, “Canadian Conflict of Laws”, 6th ed.

 Dicey, Collins and Morris, “The Conflict of Laws”, 12th ed., Vol.2, Sweet and

Maxwell, London.

 J. D. McClean, “Morris: The Conflict of Laws”, 4th ed., Universal Law Publishing Co.

Pvt. Ltd., Delhi.

 Nygh and Davies, “Conflict of Laws in Australia”, 7th ed.

 P. M. North and J. J. Fawcell, “Cheshire and North’s PIL”, 13th ed., Lexis Nexis

Buttherworths, Delhi. 

 Atul M. Setalvad, “Conflict of Laws”, (Lexis Nexis Butterworths, London), p. 419.