From Wikipedia, the free encyclopedia Conflict of marriage laws
Conflict of marriage laws
Property · Succession
Trusts
Enforcement
Enforcement of
foreign judgments
Mareva injunctions
Anti-suit injunctions
Conflict of mariage laws is the conflict of laws regarding
marriage in different jurisdictions. When marriage-re-
Conflict of laws lated issues arise between couples with diverse back-
grounds, questions as to which legal systems and norms
Preliminiaries
should be applied to the relationship naturally follow
Characterisation with various potentially applicable systems frequently
Incidental question conflicting with one another.
Renvoi · Choice of law
Conflict of laws in
the United States
The choice of law
Public policy The standard choice of law rules for adjudicating on is-
Hague Conference sues relating to marriage represent a balance between
the various public policies of the laws involved:
Definitional elements
Jurisdiction Status and capacity
Procedure
Status and capacity are defined by the personal laws of
Forum non conveniens
the parties, namely:
Lex causae
• the lex domicilii or law of the domicile in common law
Lex fori · Forum shopping
states, and
Lis alibi pendens
• either the lex patriae or law of nationality, or law of
Connecting factors habitual residence in civil law states).
The personal laws will usually define status in rem so that
Domicile · Lex domicilii
it is recognised wherever the individual may travel sub-
Habitual residence
ject only to significant public policy limits. Hence, for ex-
Nationality · Lex patriae
ample, as an aspect of parens patriae, a state will define
Lex loci arbitri · Lex situs
the age at which a person may marry. If such a limita-
Lex loci contractus
tion could simply be evaded by the young person travel-
Lex loci delicti commissi
ing abroad on a holiday to a country with a lower age lim-
Lex loci actus
it, this would clearly breach the policy of the "parental"
Lex loci solutionis
state. The same principle would apply to an adult who
Proper law
wished to create a polygamous marriage or to evade a
Lex loci celebrationis
restriction on consanguinity. In Family Law as opposed
Choice of law clause
to the Law of Contract, there is also a strong case for
Dépeçage
legal capacity to be universally enforced to limit to abili-
Forum selection clause
ty of individuals to evade normally mandatory rules. The
Substantive legal areas claims of the lex loci celebrationis to apply are weak given
Status · Capacity · Contract that the significance of the location may be no more than
Tort · Marriage · Nullity the convenience of their laws to those wishing to marry.
Divorce (Get · Talaq)
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From Wikipedia, the free encyclopedia Conflict of marriage laws
Validity of the marriage cial or political pressures to disapprove some customs of
"foreign" states.
1. The form of the marriage is governed by the lex loci
One particularly perplexing issue can be summarized
celebrationis or the law of the place where the
thus: Suppose that a male Saudi Arabian Muslim legally
marriage was celebrated or occurred, and is usually
marries two wives in Saudi Arabia, divorces the senior
considered definitive on whether the ceremony or
wife, then immigrates to the United States, where his ju-
legal recognition has been effective to create the
nior wife files for divorce. The husband could argue that
relationship of marriage and marital rights(see
because U.S. law does not recognize polygamous mar-
nullity).
riages, the junior wife has never been his legal wife under
2. The validity of the marriage is governed by the
U.S. law, and therefore no divorce can be granted by the
capacity of the parties to marry each other. In North
U.S. court.
America, Saskatchewan Canada is unique in that its
marriage laws stipulate that both persons must be
single to become eligible to be the spouse of another
Religion
person. However, that provinces Family Property Act Where worshippers wish to marry according to the
(which includes the definition of spouse in its tenets of their religion, the state must decide whether
statutes) allows for polygamous unions, sanctioned that ceremony will be effective to create a valid marriage.
by the state. Capacity to become a spouse, is usually For example, the government may decide whether a cler-
governed by the domicile of the parties. Thus for gy has sufficient authority to declare marriage or
example, a 13 year old does not have the capacity to whether a civil ceremony will be required.
marry in England, but does have that capacity in In Islam, marriage is a contract between the bride
Nigeria (Northern Muslim Community). Likewise, in and groom (or their proxies) known as a nikah. Some Is-
Canada no person can be "sanctioned" to have lamic couples only go through a nikah ceremony and do
multiple spouses, other than in Saskatchewan. not register the marriage with the civil authorities or
go through a civil ceremony. When such a relationship
Lex fori breaks down, the wife is left without state protection that
would normally be available if the marriage had been
The lex fori, or proper jurisdiction to adjudicate legal dis-
registered according to civil law. The situation is exac-
putes, will usually be the state where the spouses have
erbated if the husband refuses to grant a talaq and also
sought to make their matrimonial home. This state will
refuses to make any provision. In states where there is
usually have a clear and direct interest in the applica-
no Sharia Court, the affected individuals’ only recourse
tions of its policies to regulate the nature of relationships
would be to the local civil courts, but jurisdiction would
permitted to confer the status of husband and wife with-
be difficult to invoke except under the parens patriae
in their territorial boundaries. It may also attempt to reg-
provisions to protect the best interests of any children.
ulate the behavior of those who wish to cohabit with-
As to transnational marriages, there is no reason in prin-
in their territory although this may contravene privacy
ciple why religious ceremonies effective under the lex loci
rights.
celebrationis should not create marriages recognized as
valid everywhere.
Discussion
There are serious problems of characterisation and the Custom
possibility of an incidental question in the Family Law
In many states, culturally separate communities have re-
field because of the strength of the prevailing attitudes
tained their own traditions. A developing modern state
and prejudices on sexual propriety. Hence, for example,
had to determine whether it should recognize such tra-
given the increasing prominence given to the phenome-
ditions as it was establishing a centralized system of law.
non of paedophilia, the issue of age in relation to sexual
In South Africa, for example, the Recognition of Customary
activity has come to represent a major issue for many
Marriages Act 1999 retrospectively recognizes as valid all
Western states and, no matter what the claims of the lex
customary marriages so long as they are registered. Fur-
loci celebrationis to be applied as the determinant of the
ther, s2(3) of the Act provides that, if a person has en-
validity of any alleged marriage involving young adults,
tered into more than one customary law marriage, all
the policies of the personal laws of the parties and the lex
valid marriages entered into before the commencement
fori are often given greater prominence. Some think that
of the Act, are recognized. The Act similarly recognizes
these cultural responses to different customs are given
all customary marriages entered into after the com-
impetus by an underlying lack of respect for people of
mencement of the Act where the High Court approves a
different race, religion or ethnicity. Whereas traditional-
written contract regulating the future matrimonial prop-
ly the law is viewed as driven by the Doctrine of Comity
erty systems for marriages (both present and prospective
and the principles of reciprocity, those who administer
spouses must be joined in the application).
and apply the law are undoubtedly affected by local so-
2
From Wikipedia, the free encyclopedia Conflict of marriage laws
Such measure represented a major shift, because cus- accepted by the government. In Taiwan, which follows
tom marriages were often potentially or actually polyg- a variation of the Napoleonic Code (received by way of
amous as against public policy, and were not recognized Japan), the presumption is that each country maintains
under the new law. The government reversed the posi- a central registry of its citizens, including their marital
tion, as it realized that it was impossible to enforce the status. If a Taiwan citizen marries in another country,
prohibition against polygamy and wives usually consent- however, this information may not find its way into the
ed. records. Many thousands of ROC soldiers who came to
Where a state has produced a formal body of law to Taiwan in 1949 left behind wives in mainland China, but
control recognition, this will establish a general frame- married local Taiwanese women. Since the two polities
work under which international recognition can be man- did not share records, the result was a pattern of legally-
aged. Where there is no formal rule within the lex loci cel- recognized second marriages, despite the ban on
ebrationis, a forum court could hear expert evidence on polygamy by both sides of the Taiwan Strait. Today, for-
whether the marriage would be accepted as effective (see eigners wishing to marry Taiwan citizens must present
the public policy of favor matrimonii which creates a re- letters from their countries’ representative offices tes-
buttable presumption in favor of the validity of any mar- tifying that they are not already married. (Of course a
riage) but it will be difficult for the parties to justify their determined bigamist might marry in some third coun-
failure to comply with the local laws that unambiguously try.) In the case of countries which lack centralized fam-
would have created a valid marriage. ily records (such as the USA), a notorized affidavit is ac-
cepted.
Common law
In some states, the legal acceptability of common law The age of marriage
marriage is very limited. Some couples, whether because
there are no local formalities relevant to them or because Different minimum age requirements also can lead to
they have strongly held prejudices against compliance problems in mutual recognition of marriages. A marriage
with the local forms, decide to create a marriage either of young children is in some countries deemed to be
by a simple public exchange of vows (per verbis inter prae- against the ordre public, minimum ages for recognition
sentes), or by habit and repute. Because the need for con- are sometimes set (which may vary from the minimum
formity between states requires respect for the legal sys- ages for marriage itself). For examle, in the United King-
tems, it is now very difficult to identify states with no dom, the Immigration Rules 1986 were introduced to bar
local system for the celebration and registration of mar- persons under the age of 16 from entering the UK in re-
riages, and even more difficult for the courts of one state liance upon their status as a spouse. Nevertheless, for
to justify a decision to support the prejudices of two of other purposes, such marriages will be recognized as
its citizens against the laws of the second state. However, valid so long as the parties had the relevant capacity un-
other states permit informal marriages to acquire legal der their personal laws and the ceremony was effective
status and, where this happens, there is no reason in under the lex loci celebrationis to create a valid marriage.
principle why international recognition should not fol-
low. Consent
Canada allows married persons to retain multiple
In Western cultures, other than the age of consent, the
spouses in legally recognized family law, but only in one
issue of consent is also considered of fundamental impor-
province. Saskatchewan utilizes S.51 of their Family
tance and, if it is not freely given, it can prevent a valid
Property Act to "sanction and assist in the creation" of
marriage from ever coming into existence: see nullity. In
polygamous unions. To date, that province has only al-
Canada, "common law marriages" do not require consent
lowed married women to become spouses in family prop-
to be recognized and often a stipulated "passage of time
erty law of single men; however their Family Law Act and
in eligible cohabitation" is the only requisite to becom-
case laws are the only statutes and references in North
ing a formally recognized "marriage". The "capacity to
America where a legal jurisdiction promotes polygamy.
marry" includes the fundamental a priori reasoning that
Common law marriages in Canada have been referred to
both persons must not be married to others (the excep-
for over forty years as a form of marriage or "conjugal
tion is Saskatchewan Canada).[citation needed] The only stip-
union". Since 1999, Saskatchewan has allowed married
ulation to this rule of thumb is that both partners must
persons to have more than one "simultaneous" conjugal
be eligible to marry in the first place. In Islamic law, a
union in family property law.
nikah contract is not valid if the parties do not consent,
although there are differences in juristic opinion about
Government registration
exactly how the consent can be manifested. This sup-
In some countries, the registration of a marriage means posedly lack of clarity has led some Western cultures to
that it cannot later be declared invalid, since it has been question the general morality of "arranged marriages",
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From Wikipedia, the free encyclopedia Conflict of marriage laws
often stigmatizing the system as being open to abuse and gene pool. The limitations based on affinity, by contrast,
sometimes leading to forced marriages. In the English are predominantly legal and social in origin. The rules
case of Szechter v Szechter, Sir Jocelyn Simon P. said that relating to affinity reflect the need to minimise the
for duress to vitiate a valid marriage, it must be proved prospects of familial jealousies and dysfunction by pre-
that: venting the intermarriage of people already related by
• the will of one of the parties had been overborne by marriage. Difficult questions arise on whether an adopt-
a genuine and reasonably held fear; ed child may marry his or her adoptive parents, or the
• this fear was caused by a threat of immediate danger natural children of the adoptive parents. No matter what
for which the party was not himself or herself legislative decisions are taken, there will always be citi-
responsible, usually amounting to a threat of zens who wish to evade the application of the law. There
physical or fatal injury, or false imprisonment. will be no problem if they relocate and establish a mat-
The test requiring an immediate danger never matched rimonial home in a state that allows their marriage. But
the practical realities facing individuals where the con- any attempt to evade such laws by going through a cer-
sequences of a refusal to marry might not be immediate, emony in a state that permits the marriage and then re-
but nevertheless serious. In Hirani v Hirani (1982) 4 FLR turning to the original state (which will usually be their
332, the Court of Appeal considered the case of a nineteen state of domicile, nationality or habitual residence) will
year old Hindu woman who was dating a Muslim man. fail, and may even expose the couple to the risk of prose-
Her parents told the petitioner that unless she married a cution for incest or an equivalent offense.
Hindu of their choosing, she would be ostracized socially
from her family and left to fend for herself. Under the cir-
cumstances, the Court agreed that the petitioner had act-
Polygamy
ed without full consent in marrying her parents’ choice Polygamy may be polygyny (one man having more than
of husband. Thus, it is for the courts of all countries to one wife at the same time) or polyandry (one woman
strike a balance between well-intentioned parental au- having more than one husband at the same time) and it
thority to arrange marriages in the face of a reluctant has been practiced sparsely throughout history in almost
child, and unreasonable threats that would overbear the all cultures and sanctioned by various religions where
will of any reasonable person, while maintaining the necessary to meet population or economic needs. For ex-
trust of local communities whose cultures have included ample, when disease, war or famine has reduced popula-
arranged marriages for centuries. As to transnational tions, the taking of several wives has been the solution
recognition, it will be difficult to disturb the validity of to restoring population. In some economically poor areas
the marriage if no complaint of coercion was made where infant mortality is high but children are a vital
around the time the ceremony was performed in the lex source of labor to maintain the earning capacity of the
loci celebrationis or immediately the parties entered the family, polygamy provides more children. Yet, in more
state where proceedings were commenced. It would be modern times, some states have defined marriage as the
more usual to use the local divorce system to terminate union of one man to one woman "to the exclusion of all
the relationship. others" and, in some cases, have criminalized bigamy or,
as in Canada, have made polygamy an offense under the
Criminal Code of Canada. Under s 293(a), everyone who
Consanguinity enters into any form of polygamy or any "conjugal union
In Christian cultures, the Biblical proscriptions contained with more than one person at a time" is guilty of an of-
in Leviticus 18 v6-18, are used as the basis for restricting fense, and under s293(b), there is a separate offense for
marriage between persons who are deemed to be too any person who "celebrates, assists or is a party to a rite
closely related to each other. More generally, the restric- that sanctions a polygamous marriage".
tions fall into two classes (and based on Old Testament Other states refer to the current religious practices
laws): within their territories as the test for legal acceptability:
• where the parties are related by blood for example, the Marriage Law 1974 (no. 1/74) in Indonesia
(consanguinity); or does not prohibit polygamy for those religions that allow
• where parties are related by marriage (affinity). it (i.e. Islam, Hinduism, Buddhism), but permits it with
Several exceptions have existed for various Biblical fig- the consent of the existing wife or wives if:
ures, incestuous relationships such as Abraham and • there is proof of sufficient financial capacity to
Sarah [1], Nachor and Melcha [2], Lot and his Daughters maintain all spouses and children;
[3], Amram and Jochabed [4], and more [5][6][7] • there are safeguards that husband will treat his
The limitations based on consanguinity derive from a wives and children equally; and
policy of practical eugenics and reflect the increased pos- • a court is satisfied that there are valid reasons for
sibility that such marriages will produce children with a wishing to contract a polygamous marriage (e.g.,
genetic defect due to the limitations on their combined
4
From Wikipedia, the free encyclopedia Conflict of marriage laws
that the existing wife is infertile, has an incurable and the Scandinavian states, as well as Canada and sever-
disease, etc.). al states of the United States of America, Mexico City and
The converse is to be found in the halakhah and the Tal- Argentina are recent areas allowing same-sex marriage.
mud where the general principle is that, "a woman can- On the issue of transsexualism, the European Court of
not be the wife of two [men]" (Kid. 7a and Rashi). For a Human Rights in Goodwin v UK and I v UK (July 2002) con-
wife, the term kiddushin implies her exclusive dedication cluded that there is no justification for barring a trans-
to her husband and there can be no kiddushin between sexual from enjoying the right to marry. In Bellinger v
her and another man while the first kiddushin subsists. Bellinger [2003] UKHL 21, (2003) Times, 11 April the Eng-
Any purported marriage to another man is thus formal- lish courts held that the non-recognition of change of
ly invalid but, nevertheless, requires a get to terminate gender for the purposes of marriage in s 11(c) of the Mat-
it. A married man may celebrate a second marriage (and rimonial Causes Act 1973 was incompatible with Conven-
any others) unless he has specifically undertaken to his tion rights. But the House of Lords did not consider that
first wife, e.g., in the ketubbah, not to do so, or monogamy the issues raised in the case were suitable for determina-
is the local custom. Thus, Ashkenazic Jews who live in tion by courts and left the matter for Parliament, which
Christian nations accepted a takkanah (a rabbinic law not has now enacted the Gender Recognition Act 2004 and
deriving from the Talmud) banning polygamy in c. 1000 matches the majority of European states in permitting
CE, while Sephardic Jews who live in Islamic societies marriage in the adoptive gender role. The same rights
have not followed this law. may be allowed in Australia, Canada, and some other
states.
Actually polygamous
At the time a secular court considers the validity of this See also
marriage, there are already multiple spouses. In English
law, for example, §2 Immigration Act 1988 prohibits cer- • Family Law Act (Alberta, Canada)
tain polygamous wives from exercising their right of • International child abduction
abode with the result that any application from such a
wife has to be considered in accordance with Paragraphs References
278 to 280 of the Immigration Rules, which contain pro-
[1] ?http://www.biblegateway.com/passage/
visions to restrict settlement in most cases to one wife.
?search=Genesis%2020:11-12&version=31;
But, for less controversial purposes, most states are will-
[2] http://www.biblegateway.com/passage/
ing to recognise actually polygamous marriages as valid
?search=Genesis%2011:26-29;&version=31;
so long as the parties had the capacity to enter into such
[3] http://www.biblegateway.com/passage/
relationships and the ceremonies were effective under
?search=Genesis%2019:31-36;&version=31;
Canada,
the lex loci celebrationis. In Canada Ontario province rec-
[4] http://www.biblegateway.com/passage/
ognizes polygamous marriages if they occurred in a for-
?search=Exodus%206:19-20;&version=31;
eign country whom Canada recognizes as permitting
[5] http://www.biblegateway.com/passage/
polygamy.[citation needed]
?search=II%20Kings%2013:1-2;&version=31;
[6] [1];&version=31;
Same-sex marriage [7] http://www.biblegateway.com/passage/
See also: Same-sex marriage ?search=II%20Kings%2013:14;&version=31;
In a Chinese conception of marriage, a marriage is de- [8] http://books.google.com/books?id=ZDN-
fined as being a relationship in which unions of various WdK_OoUC&pg=PA55&lpg=PA55&dq=
surnames are established in order to increase the lines of • Shah, Prakash. "Human Rights and Immigration
succession and property values[8]. While most countries Law". (2003) Vol. 52 International and Comparative Law
in 2010 do not recognize marriage between two people Quarterly, 359-400.
of the same sex, several states have fully legalized same- • Sona, Federica. "Polygamy in Britain". [2]
sex marriages, and even more have expressed a willing- • Formal Recognition of Customary Law: An Analysis
ness to consider allowing individuals of the same gen- of the South African Experience in Passing
der to enter into civil unions and domestic partnerships. Legislation Recognising Customary Marriages. [3]
In addition to several European countries such as Spain
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Categories:
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From Wikipedia, the free encyclopedia Conflict of marriage laws
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