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VALIDITY OF MARRIAGE AND CONFLICT OF LAWS Rajat Dosi Abstract Marriage, which is considered as one of the vital societal institutions to carry forth the society, may also now-a-days lead to conflict of law situation between two different countries. To tackle such a situation, every country has its own Private International Law rules. In Private International Law, the validity of marriage is dependent upon two things, formal and essential validity of marriage, for which every country has its own rules. In this paper, the first chapter deals with introduction to marriage and its relation with conflict of laws. The second chapter deals with formal validity of marriage and its position in different counties. The third chapter deals with essential validity of marriage and its position in various countries. The fourth chapter provides a comparative analysis of five different countries. The fifth chapter deals with Hague Convention and lastly, the sixth chapter deals with recommendations and suggestions. I. Introduction Marriage is a universal human institution which has formed the foundation of the family throughout history.1 It usually means a voluntary union for life of one man with one woman to the exclusion of others.2 While the traditions surrounding marriage ceremonies, the rights and obligations of marriage, the way of choosing one's marriage partner, and even who all are permitted to marry may differ from culture to culture.3 In the case of Shaw v. Gould,4 Lord Westbury was of the view that:5 Marriage is the very foundation of civil society, and no part of law and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and the conditions of forming, and if necessary of dissolving, the marriage contract.
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4th year, B.A. LL.B(Hons.), Rajiv Gandhi National University of Law, Patiala, Punjab, India, Email: rajatdosi@gmail.com. 1 New World Encyclopedia, available at: http://www.newworldencyclopedia.org/entry/Marriage (last visited on April 28, 2010). 2 Hyde v. Hyde, (1866) LR 1 P&D 130. 3 Supra note 1. 4 Shaw v. Gould, (1868) L.R. 3 H.L. 55, at 82. 5 J.H.C. Morris, The Conflict of Law 187 (Sweet & Maxwell Ltd., London, 2005).

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All over the civilized world and in every legal system of the world, marriage is a very important social institution. Whether considered as a sacrament or a contract, 6 marriage gives rise to status. It confers a status of husband and wife on the parties to marriage and it confers a status of legitimacy on the children of such marriage. Thus, the basic difference between the marriage and any other contract is that while a commercial and mercantile contract does not give rise to any status, marriage gives rise to status.7 Now a question may arise as to how a marriage between two interested parties may lead to conflict of laws situation between laws of two different countries. For example, Tom and Mary are a married couple in England. Although originally, Tom is from France but he marries Mary who is from England. Now suppose they want to get divorced, there could be a conflict of laws situation between French and English laws, as to which law would be applicable. It has been similarly held by most authors and jurists that if a matrimonial dispute arises between parties to a marriage which are nationals or citizens of two different countries or were domiciled in different countries before the marriage or place of domicile were different (in case of web marriages), etc. For e.g. Suppose Tom and Mary is a married couple in England. Originally, Tom is from France but he marries Mary, who is from England. Suppose now they want to get divorced, there could be a conflict of laws situation between French and English laws, as to which law would be applicable. Thus, every country in order to deal with this problem of conflict every country has had to develop certain rules or laid down certain statutes which determines the laws of the place would be applicable in case of a matrimonial dispute of this particular kind. Now, in every system of law for the validity of marriage the fulfillment of the two conditions is necessary: Parties to marriage must have the capacity to marriage and have agreed to marry each other with free consent and not under any sort of coercion or force. This is,
6

In western countries marriage is considered as contract, but Roman Catholic Church still insists that marriage is a sacrament. Though Muslims consider it as a contract but in case of Hindus it is something in between contract and sacrament. 7 Paras Diwan & Peeyushi Diwan, Private International Law 237 (Deep & Deep Publications, New Delhi, 1998).

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in Private International Law, called the Question of essential or material validity of marriage.  Parties must have performed necessary ceremonies and rites of marriage, which is, in Private International Law, known as Question of formal validity of marriage. Only that marriage will be valid which is both formally and essentially valid, and if any of the two conditions are not satisfied or fulfilled, the marriage is void. In distinguishing between matters regarded as essential and those of pure formality, a test has been laid down R.H. Graveson, according to which, those matters which are regarded as vital to the maintenance of an accepted standard in the matrimonial and family relations of any given society, whether on the grounds of consanguinity, religion or otherwise, will be regarded as essentials of marriage, to be governed by the personal law of each party; while the matters of less vital social interest, such as the length of public notice to be given before the celebration of a marriage, the number of witnesses whose presence is required at a ceremony, will be treated as pure formalities, to be determined exclusively by the law of the place of celebration.8 Further, two principles need to be known before going on to the discussion about the rules applicable in different countries on various matrimonial issues:  Lexi Loci Celebrationis – The law of the place where a contract of marriage is performed.9 For A French citizen marries B, an Italian citizen, in India, now in case of any dispute which needs to be solved by the principle of Lexi Loci Celebrationis, will be solved according to the Indian Law rather than French Law or Italian Law, as the marriage was contracted or performed in India. The original rule was that the validity of marriage was solely depended upon the law of the place of celebration (Lexi Loci Celebrationis).10 Larry Kramer has pointed out, “there is nothing in the Constitution or any other source that prevents a state from

8 9

R.H. Graveson, Conflict of Laws 251 (Sweet & Maxwell Ltd., London, 1974). Atul M. Setalvad, Conflict of Laws 13 (LexisNexis Butterworths Wadhwa, Nagpur, 2009). 10 Supra note 5 at 188.

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not following the ‘place of celebration’ rule for recognizing marriages, but it continues to be the rule followed in every jurisdiction.”11  Lex Domicilii – The law in force in country or place where a person is domiciled,12 or the law of person’s domicile.13 For example, A and B, who are domiciled in England, marry in France. But certain matrimonial dispute arises which needs to be determined or solved according to the principle of Lex Domicilii, then the English Law will be applicable rather than French Law as England was the place were both the parties were domiciled. The effect of the conflict of laws rules applicable to marriage and divorce is that a person married in under the shadow of one set of marriage and marriage-dissolution rules can find her marriage later dissolved under quite different rules, either because of changes in the local law or because one or both parties have moved i.e. change in the domicile of either or both of the parties. As a result, parties entering marriage cannot plan on the basis of the current law, because they cannot rely on that law being enforced at the time of (an attempted) dissolution.14 II. Formal Validity of Marriage The term ‘formalities’ includes such questions such as whether a civil ceremony, or any ceremony at all is required, the number of witnesses necessary, the permitted hours during which the marriage can be celebrated, whether publication of marriage is necessary, and so on.15 Now as a general principle, the formal validity of a marriage is determined under the municipal lex loci celebrationis on the date of the ceremony (the principle of renvoi does not apply unless it will refer to a law that will validate the
11

Larry Kramer, “Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception”, 106 Yale L.aw Journal 1965, 1969 (1997). 12 Supra note 9 at 13. 13 J.G. Collier, Conflict of Laws 7 (Cambridge University Press, Cambridge, 2001). 14 Brian H. Bix, Choice of Law and Marriage: A Proposal, presented at the June 2001 North American Regional Meeting of the International Society of Family Law held in Kingston, Ontario. 15 Supra note 5 at 189.

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marriage), and the lex domicilii of either party will be irrelevant. This rule is simple and easy to apply. It should be obvious to parties wishing to marry that they should comply with the local formalities.16 English Private International system, the requirement that a marriage may be formally valid by the principle of lex loci celebrationis is imperative, which admits no alternative test. In the continental Europe, however, the test is facultative: the requirement is that the marriage should be formally valid either by the lex loci celebrationis or by the personal laws of the parties. Under the French law a marriage which is solemnized outside France should be formally valid either under the law of the place where it is celebrated or by the personal law of the parties. The same is the position under the German Law. Countries like Greece and Malta lay down that compliance with the personal law is necessary and obligatory, if the parties belong to the Orthodox Church, in the former case, and to Roman Catholic Church in the latter case. In Poland and Czech Republic, however, if marriage is formally valid under the personal law of the parties, then the marriage is valid, irrespective of the fact whether it complies with the lex loci celebrationis.17 In China too, for the substantive conditions of marriage, the applicable laws relate to the law of the place where the marriage takes place or the personal law of the parties (or both).18 Likewise in Scotland, a marriage which is solemnized outside Scotland should be formally valid under the law of the place where it is celebrated.19 Thus, it means that if the marriage is formally valid in accordance with the law of the place where it took place then the marriage would be valid everywhere. If the law of the place where the marriage is solemnized lays down that a marriage which complies with the requirements of personal law of parties (such is position under the Italian Law) is valid, then a marriage performed accordingly will be valid.20

16

Nullity (conflict), available at: http://en.wikipedia.org/wiki/Nullity(conflict) (last visited on April 20, 2010). 17 Paras Diwan & Peeyushi Diwan, Supra note 7, at 266. 18 Wang Hui, A Review of China’s Private International Law During the 30-year Period of Reform and Opening-Up (May 2009) (ASLI Working Paper Series No. 002). 19 The Law Commission and The Scottish Law Commission, Private International Law Choice of law rules in Marriage, Law Com. No. 165 & Scot. Law Com. No. 105, 3 (July 01, 1987). 20 Supra note 7 at 267.

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Position in England  Lex Loci Celebrationis – In England it is a noted and a well-settled fact that the marriage must satisfy the formal requirements of the lex loci celebrationis, it is a view long held at Common Law. The leading modern authority in England on this point is Sottomayor, otherwise De Barros v De Barros (No 1), where the Court of Appeal held: “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.”21 A marriage would be regarded as valid even 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 by the law of the domicile of the parties; this has been described by the Privy Council in that case as one question better settled than any other in international law. 22  Locus Regit Actum – It is also a well established rule of English Private International Law that a marriage to be formally valid must comply with the local law – locus regit actum. A marriage which does not comply with the formalities of local law is not valid. This rule means that if the marriage is formally valid in accordance with the law of the place where it took place then the marriage would be valid everywhere. If the law of the place where the marriage is solemnized lays down that a marriage which complies with the requirements of the personal law of the parties is valid, then a marriage performed accordingly will be valid.23  Retrospective Legislation - This principle is so well recognized in English Common Law that it has been held that English courts would recognize as valid a
21

Sottomayor, otherwise De Barros v. De Barros (No 1), (1877) 3 PD 1, p 5. The court, which was really considering whether a marriage solemnized in England between cousins, both domiciled in Portugal, was valid and held that it was not. In the past, at Common Law, questions of capacity to marry were also determined by applying the lex loci celebrationis, and this rule was laid down in this case. 22 Berthiaume v. Dastous [1930] AC 79, p 83. A decision of the Privy Council in an appeal from Canada, where the question was whether a marriage by religious rite in France, without a civil ceremony required under French law, would be recognised in Quebec in Canada where a marriage by religious rites alone would be valid, and it was held that it could not be recognised. 23 Paras Diwan & Peeyushi Diwan, Supra note 7, at 267.

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marriage invalid by the lex loci celebrationis when performed but later, retrospectively, validated in that country.24 The question arose in the case of Starkowski v. AG,25 were the wife of a Polish domicile of origin entered into her first marriage at a church in Austria in May 1945. At that time by German marriage law, which was in force in Austria, a religious ceremony does not constitute a valid marriage since a civil ceremony was required. In June 1945, an Austrian decree was passed to the effect that religious marriages celebrated between 1 April 1945 and date of the decree should be valid as soon as they were registered in the Family Book. The House of Lords held that, where there had been retrospective legislation which had the effect of validating an earlier marriage, the balance of justice and convenience was clearly in favour of recognizing the validity of such retrospective legislations. Accordingly, the first marriage was valid.26 But according to Cheshire, there is a limitation attached to this principle i.e., the principle should not apply if the formalities prescribed by the retrospective law were complied with after one of the parties had married another person, or in cases where the retrospective legislation takes effect after the marriage has been declared as invalid by an English court.27  Marriage by Proxy – In England marriage by proxy is recognized as valid and the place where the marriage was performed is the place where the proxy was present, and not the place where the proxy was appointed.28  Exception – In cases where it is not possible to comply with the formalities prescribed by the local law, a different view is taken.29 This exception to the requirement that the marriage must comply with the lex loci is only available if there is insuperable difficulty, not merely that it is difficult or that a minimum period of residence prescribed by the lex loci would involve parties having to
24 25

Starkowski v. Attorney General, [1954] AC 155, [1953] 2AJI ER 1272. Ibid. 26 Abla Mayss, Principles of Conflict of Laws 225-226 (Cavendish Publishing Limited, London, 1999). 27 Cheshire, North & Fawcett, Private International Law 880-881 (Oxford University Press, Oxford, 2008). 28 Apt v. Apt, [19481 P 83, [1947] 2AII ER677 (CA). 29 Supra note 9 at 340.

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wait.30 If it is not possible to comply with the lex loci, any reasonable form chosen by the parties would suffice to constitute a valid marriage. An example is a marriage in Singapore between a Chinese woman and a Jewish man, both British subjects, by a form of ceremony which was a composite between the Jewish and Chinese forms, there being no form applicable in such cases; the Privy Council upheld the marriage as a valid common law marriage.31 Position in Australia Australia also follows the Common Law principle that a marriage must satisfy the formal requirements of the lex loci celebrationis.  Marriages by proxy will be recognised as valid if they are valid under the lex loci celebrationis.32  Australian courts also recognise as valid a marriage performed according to religious ceremonies of the parties even if the formalities prescribed by the law of the place where the marriage took place were not complied with in circumstances when it was not possible to do so because of the conditions prevailing at the time.33 Where, however, compliance with the prescribed formalities was not impossible, the marriage in some other form would probably not be recognised as valid in Australia.34 Position in China Pursuant to the General Principles of the Civil Law of China,35 the applicable law for a marriage between a Chinese citizen and a foreigner is also the law of the place where the marriage takes place. Thus, if a Chinese citizen and a foreigner are married within China,

30 31

Dicey, Morris & Collins, Conflict of Laws 20-21 (Sweet & Maxwell Ltd., London, 2009). Penhas v. Tan Soo Eng, [1953] AC 304. 32 th Nygh & Davies, Conflict of Laws in Australia 24.1 (LexisNexis Butterworths, Sydney, 7 edn., 2002). 33 Nygh & Davies, Supra note 32, at 24.15. 34 Tilbury et. al., Conflict of Laws in Australia 602 (Oxford University Press, Melbourne, 2002). 35 Adopted at the Fourth Session of the Sixth National People’s Congress, and promulgated by Order No.37 of the president of the People’s Republic of China on 12 April 1986, and effective as of 1 January 1987.

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Chinese law is applicable; if a Chinese citizen and a foreigner are married outside China, the applicable law is the law of the place where the marriage takes place.36 Position in Scotland As a general principle, Scotland also follows the Common Law principle that a marriage must satisfy the formal requirements of the lex loci celebrationis. There is no certainty whether Scots law or the law of the domicile would be applied in its place, where the law of the place of celebration is inapplicable in cases of impossibility or extreme difficulty. 37 There is also uncertainty whether Scots law would adopt the further extension of the exception in the case of marriages involving occupation forces (as it is in England).38 Position in India  There seems to be only one decision of an Indian court on the subject, where the question did not directly arise, and it was observed by a learned single judge that formal validity would be governed by the lex loci celebrationis.39  The Foreign Marriage Act 1969, provides that a marriage performed outside India would be regarded as valid if it was performed in accordance with the law of the country where the marriage was performed, thus implying that the test for such validity was the lex loci celebrationis.40  As Indian courts tend to follow the rules of English law on most issues in conflict of laws, it is probable that Indian courts would hold, as at Common Law in England, that the formal validity of a marriage would be governed by the lex loci celebrationis.41

36 37

Wang Hui, Supra note 18, at 5-6. Eric M. Clive, Husband and Wife 147 (Scottish University law Institute, Edinburgh, 1982). 38 Supra note 19 at 3. 39 Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582. 40 The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23. 41 Supra note 9, at 340.

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III.Essential Validity of Marriage Another major issue relating to choice of law in the context of marriage is the question of which law governs capacity, otherwise known as the essential validity. This question covers a wide range of issues, such as consanguinity (blood relationships), affinity (relationships created by the virtue of marriage), re-marriage and lack of age. As a general rule, capacity to marry is governed by the dual-domicile rule, but it is also subject to certain exceptions. The dual domicile or the double domicile rule42 stems from the traditional theory that capacity to marry is governed by the ante-nuptial domicile of both the parties. Its effect is that a marriage will be valid if it is so by the law of the domicile of each contracting party immediately before the marriage. Clearly, this theory has certain merits, simply because it tends to preserve equality between the parties by looking to the law of the domicile of each of them. It must be noted, however, that there exists a rival theory, which submits the question of capacity to the law of the intended matrimonial home. 43 Cheshire maintains that the capacity of marriage, and all other questions of essential validity of marriage, should be governed by the law of the matrimonial domicile.44 According to him, “The basic presumption is that the capacity to marry is governed by the law of the husband’s domicile at the time of the marriage, for normally it is the country of where the parties intend to establish their permanent home. This presumption, however, is rebutted as it can be inferred that parties at the time of marriage intended to establish their home in a certain country and they did in fact establish it there within a reasonable time.”45 This law of each party’s domicile has been aptly called “the proper law by which capacity to marriage is to be tested.”46 It involves the two factors of space and time,

42 43

Id. at 345. Supra note 26 at 259. 44 Supra note 7 at 267. 45 Supra note 27 at 288. 46 By Sir Jocelyn Simon P., in the case of Cheni v. Cheni, [1965] P. 85, at 93. (Marriage between a Jewish Uncle and Niece).

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namely the law of what country and when, which is resolved in favour of the law of the ante-nuptial domicile of each party at the time of their marriage.47 Position in England  In the past, English law regarded questions of capacity to marry to be governed by the lex loci celebrationis. But it is now settled law that capacity is governed by the law of the domicile of the parties, so that a marriage between cousins, who could not marry each other by the law of their domicile, Portuguese law, was not valid though celebrated in England, where there was no such incapacity.48  The British Law Commission has examined the issue and recommended against any legislation on the ground that the present rule, coupled with the approach of English Courts to uphold a marriage, if possible, provides the flexibility which would be lost if some uniform rule was enacted by legislation.49 Thus the ambiguity also gives wide powers to the judiciary, to let them decide the conflict on the basis of principles of legal system in which they operate.  Further, in few English decisions, it has been held that consent is governed by the law of the domicile of the parties.50 Now, the question that arises is as to which lex domiciIii 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 it should be the domicile of the person who is alleged to have lacked consent.51  In Vervaeke v. Smith,52 where the question did not arise for decision, one of the Law Lords has suggested that questions of what he called the essential validity of a marriage should be determined by applying the law with which the marriage has the most real and substantial connection.
47 48

Supra note 8 at 257. Sottomayor otherwise De Barros v. De Barros, (No 1) 0 877) 3 PD 1 (CA). 49 Supra note 9 at 346. 50 The cases relied upon are Way v. Way [1950] P 71, [1949] 2 All ER 959 and Kenward v. Kenward [ 1951] P 124. 51 Supra note 30, supra note 27 at 975. 52 Vervaeke v. Smith, [1983] 1 AC 145, 166, [1982] 2 All ER 144.

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Position in Australia  Capacity to marry is governed by the law of the ante nuptial domicile of both the parties.53  If parties are within the prohibited degrees as specified in the Australian Marriage Act 1961, the marriage will not be recognised even if such a marriage would be valid under the law of the domicile of either of the parties.54  If a marriage is performed outside Australia, and either party is domiciled in Australia, a marriage will not be recognised if either party is below 18, the minimum age of marriage prescribed by Australian law; if, however, both parties are domiciled outside Australia, the marriage will be recognised provided that it is valid by the law of the domicile of the parties and the parties are above 16.55 Position in Scotland  In relation to matters of essential validity, the weight of authority in Scotland is in favour of applying the law of a person's ante-nuptial domicile to determine that person's capacity to marry, and a number of statutory provisions56 appear to support this approach.57  In Scotland, however, there is no direct judicial authority on the choice of law rules relating to consent to marry.58 In the case of physical incapacities such as impotence or willful refusal to consummate the marriage the choice of law rules are undeveloped and unclear.59

53 54

Supra note 32 at 24.20. Supra note 34 at 600. 55 Supra note 9 at 347-348. 56 Marriage (Scotland) Act, 1977 (c. 15), section l(1), 2(1) and (3), and section 5(4)(f). 57 Supra note 19 at 3. 58 Supra note 37 at 156. 59 Supra note 19 at 4.

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Position in China In China, a different law is being followed in relation to capacity to marriage. As per the General Principles of the Civil Law of China,60 it follows the principle of lex loci celebrationis, i.e., Chinese law regards the questions of capacity to marry to be governed by the law of the place where the marriage takes place.61 Position in India  In Y. Narasimha Rao v. Y. Venkata Lakshmi,62 the Supreme Court of India observed, “In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and interstate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens … The law … tends to be primarily determined and influenced by social, moral or religious considerations, and public policy plays a special and important role in shaping it.”63  Statutes enacted in India also recognise the principle that questions of capacity are governed by the law of the domicile. The conditions for a valid marriage are set out in section 5 of the Hindu Marriage Act 1955, which applies to Hindus domiciled in India, even if they are outside India. This is clear statutory recognition of the rule that all questions of capacity are governed by the law of a person's domicile.64  In India, under the Hindu Marriage Act, 1955, ‘any two Hindus’ can perform their marriage, provided that the conditions laid down under the Act are fulfilled. The Indian Courts would accord recognition to such marriages even if one of the parties or both the parties to the marriage have no capacity to enter into marriage
60

Adopted at the Fourth Session of the Sixth National People’s Congress, and promulgated by Order No.37 of the President of the People’s Republic of China on April 12, 1986, and effective as of January 01, 1987. 61 Supra note 18 at 5-6. 62 Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 3 SCC 451, at 458. 63 Sujata Manohar, Inter-personal Laws in India, available at: http://wwwsoc.nii.ac.jp/jsil/annual_documents/2003/autumn/houkokuabstr/Panel%20E4%20Manohar%20revised.pdf (last visited on April 28, 2010). 64 Supra note 9 at 350.

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under there ante-nuptial domicile or law of their matrimonial home. This is also true in case of Muslims, Christians, Parsi or Jew marriages performed in India under the law of there respective communities. This is because in India, law of marriage is essentially a personal law, in the sense that the governing law of marriage is not the Indian Law or the state law but the law of the community to which the parties belong.65  In a case of Parwatawwa v. Channawwa, 66 where a man domiciled in Hyderabad married a second wife, who was domiciled in Bombay, at a time when a Hindu could contract a bigamous marriage in Hyderabad but not in Bombay, it was held that the question related to capacity which was dependent on the husband's domicile, and as he was not prohibited from contracting a second marriage by the law of his domicile, the marriage was valid.  In the case of Bhagwan Ghamshamdas v Charlotte Zingg, 67 a Hindu man, whose marriage had been dissolved under the Hindu Marriage Act 1955, married another woman in Sri Lanka within a few months of the dissolution, it was held that under section 15 of the Hindu Marriage Act 1955, as it stood then, a person could not remarry within a year of the dissolution; the man, therefore, lacked a capacity to marry which was governed by the law of his domicile.68 IV. Comparative Analysis of Countries COUNTRIES FORMAL VALIDITY OF MARRIAGE MATERIAL VALIDITY OF MARRIAGE

65 66

Supra note 7 at 265. Parwatawwa v. Channawwa, AIR 1966 Mys 100. 67 Bhagwan Ghamshamdas v, Charlotte Zingg, (1959) ILR 1 Cal 4. Section 15 has been amended with retrospective effect by the Marriage Laws (Amendment) Act 1976, and the amended section only bars a remarriage till the time prescribed by s 28 for filing an appeal has expired, or until the appeal, if filed, is dismissed. The conclusion of the learned judge that the marriage in Sri Lanka was void because the husband, under his personal law, lacked capacity, is not a good law now. 68 Supra note 9 at 349.

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England

The

principle

of along

Lex with

Loci It is governed by the law of the the domicile of both the parties.

Celebrationis followed. Australia

principle of Locus Regit Actum is

More importance is given to the It is governed by the law of the principle of Locus Regit Actum, ante nuptial domicile of both the but still it also follows the parties, but it is again subject to principle Celebrationis. of of Lex Lex Loci personal laws of Australia. Loci The principle of Lex Loci

China

The

principle

Celebrationis is followed, and the Celebrationis is followed. principle of Locus Regit Actum is not given must of importance. Scotland The principle of Lex Loci Choice of law rules, in this regard, still on the face of it, it is governed by the law of the ante nuptial domicile of both the parties. India The position is not clear but still It is governed by the law of the on the face of it the principle of ante nuptial domicile of both the Lex Loci Celebrationis is parties, but personal law of the parties to the marriage is also given equal weightage. V. Hague Convention: A Workable Solution or a Myth in itself Hague Convention on the Celebration and Recognition of the Validity of Marriage69 to a larger extent solves the problem of conflict of laws, and brings forth the law which is to
69

Celebrationis is followed without are undeveloped and unclear, but any deviation.

followed.

Available at: http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=88 (last visited on April 30, 2010).

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be applied in cases of disputes concerning the validity of marriage on the basis of formal requirements of marriage. The Hague Convention in its article 270 quite clearly recognizes the principle of Lexi Loci Celebrationis, which will determine the formal validity of marriages in Private International Law. Further, it also removes the ambiguity on the point that whether a state can deny to enforce and recognize a marriage contracted outside on the ground of being opposed to its public policy, article 571 and Article 1472 quite clearly lays down that a state, party to this convention, may refuse to enforce and recognize a marriage if it is opposed to public policy of that state.  But one of the limitation of this convention is that it does not contain any provision on essential validity of marriage, which seems to be the most ambiguous point in Private International Law in relation to validity of marriages, which seriously undermines the importance of this convention, as its position with regard to formal validity is more or less same in almost all countries, with certain exceptions, but in case of essential or material validity of marriage it is very unclear and underdeveloped.  Another limitation to this convention is the number of parties to it, which are only three in number.73 Since a Conventions’ credibility and applicability can be judged only on the basis of number of countries party to it, thus, in the case of Hague Convention, less number of parties seriously undervalues the applicability and enforceability of this Convention.

70

Article 2 - The formal requirements for marriages shall be governed by the law of the State of celebration. 71 Article 5 - The application of a foreign law declared applicable by this Chapter may be refused only if such application is manifestly incompatible with the public policy (“ordre public”) of the State of celebration. 72 Article 14 - A Contracting State may refuse to recognise the validity of a marriage where such recognition is manifestly incompatible with its public policy (“ordre public”). 73 Uptill 2009 there were only three parties.

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VI. Solutions and Recommendations Since we can find out that both the principle of Lexi Loci Celebrationis and Lexi Domicilii, have let to various problems, in almost all the countries, and even the Hague Convention has not been able to come up with a workable solution which can solve all the issues, which generally crop up while solving matters relating to validity of marriage. These are various some of the suggestions which may help the countries to come with a more effective solution to all the problems: Like the Chinese law there should be not such distinction between formal and essential or material validity of marriage, and both of them should be governed by one single principle of conflict of law rules i.e. Lexi Loci Celebrationis. This step would certainly reduce the ambiguity in law and it would make it simpler to apply and to be understood by the common man, because every man and women, in every country, should know the legal outcomes and challenges of his/her marriage.  As in the case of contract, there is proper law of contract, so also in the case of validity of marriage, there should be a concept of Proper Law of Marriage, under which firstly, the law to be applicable will be that law which is specified by the parties in the marriage deed or at the time of the registration; secondly, it should be the law which can be inferred by the conduct of the parties or according to the particulars filled by the parties during the registration of the marriage; thirdly, since in many countries the registration of marriages is not compulsory, so many people do not go for registration of there marriages, in such a case it will be the law with which the parties had the most real and substantial connection. This may end many of the problems and will also give judiciary wide powers to decide the matter, on the basis notions of justice which they follow.