Polygamy, Classification, Incidental Question and Matrimonial Causes

1) Han is a chef at a Michelin star restaurant in upstate London. At a luncheon that his
restaurant hosted he meets Ana, a Brazilian girl and falls in love with her. Their wedding was
conducted at the restaurant itself in a grand manner. It was a perfectly legit ceremony.
During a holiday in Barbados they got into a fight about Han’s cooking skills when Ana said
that he made the worst guacamole she had ever tasted, and with that they got a divorce
right away.

Three years later, a girl named Juliette from France enters Han’s life and he gets taken up by
her. According to French law Juliette needs the permission of her parents to marry a
foreigner. She didn’t get this permission but instead moved to London and married Han
there.

After living in London for half a year, Juliette gets a job offer as an insurance broker for a
Scottish company. She accepts the job and moves to Scotland.

Two years later, Juliette finds out that while she has been in Scotland, Han has been secretly
seeing some young waitresses. She also finds out that the Barbados divorce that Han had
was invalid in Brazil although it was valid in London.

Juliette wants a declaration of nullity. You are her esteemed lawyer, advise her accordingly.

The issue is whether Juliette can sucsefuuly obtain declaration of nullity and side issue is
whether Juliette marriage and Han is valid.

Lawrence v Lawrence: Main issue was capacity to remarry and incidental question was whether the
divorce with the first husband was valid. Court held that the law of the forum (English law) applied
to answer the incidental issue as it was the law of the intended matrimonial home and the place
which has the most real and substantial connection to the case. The divorce was valid.

Applying to our case while Juliette wanted to marry Han she move to London because she didn’t get
permisiion from her parents to get married. Eventough she live with her huband for half a year in
London, she move to Scotland for the purpose of working

2 elements to fulfil -formal validity and capacity

Issue of formal validity

– apply the case of brooke v brooke- capacity to marriage is regulated by law of domicile and
int
Brook v Brook -capacity to marry is regulated by the law of the domicile (lex domicilli) and the form
of the marriage is to be regulated by the law of the country which it is celebrated (lex loci
celebrations)

Simonin v Mallac: Protestant rule in France where parental consent needed for marriages with
someone of a different religion. The permission must be obtained 3 times in 3 months by a
respectful and formal act and if the parents refuse, the parties can still get married as long as they
follow the requirement. A French couple did not get the permission and got married in England. It
was held that the marriage was valid as parental consent was just a formal validity rule.

Capacity part is regarding whether or not the first divorce is valid or not because it would determine
the capacity to marry

Would your answer differ if Juliette was Malaysian?

Based on s67 of LRA the LRA both the parties to the marriage must reside in Malaysia at the time of
the commencement of the proceedings before the court can make any decree of nullity of marriage. In this case
Han is residing in London and Juliette is residing in Scotland at the moment when Juliette wishes to nullify the
marriage. Hence, the Malaysian Court has no jurisdiction to declare the marragiae is void due to the facts that
both of them are not residing in Malaysia. therefore, the answer would not be different if Juliette was a Malaysian.

Even if she was Malaysian, the same conflict of law rules will apply which is to decide their validity of
marriage. S72 of LRA the principle of COL can still be determine the validity of marriage.

S72 provides recognition of marriage falling outside the act but within common law proicple of
recognition, because they held their marriage outside of Malaysia so it was done outside the requirements of
LRA but within common law jurisdiction.

(s72) -untuk part of validity of marriage

Cakap dia nak nullity bukan je divorce

2) State the elements required by common law for a Malaysian court to recognize a foreign
divorce. Are there any differences between those rules and the English Family Law Act 1986?
If yes, state them.

Before 1972 in England the recognition of foreign divorces both in England and Scotland was govern
by common law rules. Under the common law the case of lee mesurer v lee mesurer lays down the
way that the courts determine the whether there was a foreign divorce and Lord Watson held that
according to International law the domicile for the time being of the married spouse, the true test

There are elements required by common law for a Malaysian court to recognize a foreign divorce.

1) parties to the marriage is domicile in the foreign country at the commencement of the nullity
proceedings

Le mesurer v Le mesurer

Where the court held that the domicile of the parties is the only true test of jurisdiction to dissolve
their marriage

2) the divorce would be recognize if its validity would be recognize in a country that its spouse
domicile eventough or can be neither?

Also in the case of Armitage v Attrney General

allows recognition in England of a foreign divorce where it was granted outside the domiciliary state
provided the divorce is recognized as valid according to the law of the domicile.

Travers v holley

Ayat miss Englich court would recognize foreign divorce if it is granted in circumstances where
mutatis mutandis an English court itself would have exercise jusridiction principle that would be at
variance of its comity if an English court would refuse to recognize a urisidction whoch it claim for
itself.

(because it would be against comity if you refuse to recognize jurisdiction which you actually have
for yourself).

-Google: Travers v. Holley established an interpretation of jurisdiction based on comity, holding

that it would be contrary to principle if courts refused to recognize a jurisdiction that they claim
for themselves

-this position remain until the position of indyka v indyka where the court held that the divorce
should be recognize if the petitioner or respondent has a real and substantial connection with the
country in which the decree nullity was obtain

-Malaysian case that talks about all these is Gurcharan Singh a/l Karnal Singh v Mninder Kaur a/p
Piara Singh

In Gurcharan Singh a/l Karnal Singh v Mninder Kaur a/p Piara Singh (2010) 6 MLJ 405, the High Court
was presented with a petition for registration of a foreign divorce order, which the Malaysian
husband had obtained in Arizona after a short residence of three weeks. The court refused the
husband’s application for a declaration to recognise the foreign divorce decree, holding: ‘As the
marriage was solemnised in Malaysia, the foreign decree obtained by the petitioner in this case
required a court order declaring it to be valid. Malaysia does not have any specific provision in the
LRA 1976 or any other legislation for the recognition of a foreign divorce, so the Malaysian court
would need to refer to the UK common law position pursuant to s 3 of the Civil Law Act 1956 and
also s 47 of the LRA 1976. According to English case law, the true test of jurisdiction to dissolve a
marriage was the domicile of the married pair. Thus a divorce granted by a court of another country
would not be recognised as valid in England unless the parties were domiciled in that country.
Similarly, by applying the relevant common law principle, a Malaysian court should only recognise a
foreign decree of divorce to dissolve a Malaysian marriage if it was granted by the court of the
parties’ domicile.’

Differences

S46 (1)

46Grounds for recognition.

(1)The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings
shall be recognised if—

(a)the divorce, annulment or legal separation is effective under the law of the country in which it was
obtained; and

(b)at the relevant date either party to the marriage—

(i)was habitually resident in the country in which the divorce, annulment or legal separation was obtained;
or

(ii)was domiciled in that country; or

(iii)was a national of that country.

The difference here is s46(1) seems to be wider because under common law only recognize a divorce
theough domicile but other the act it include habitually resident in the country and national of the
country.

46(2)The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means
of proceedings shall be recognised if—

(a)the divorce, annulment or legal separation is effective under the law of the country in which it was
obtained;

(b)at the relevant date—

(i)each party to the marriage was domiciled in that country; or

(ii)either party to the marriage was domiciled in that country and the other party was domiciled in a country
under whose law the divorce, annulment or legal separation is recognised as valid; and

(c)neither party to the marriage was habitually resident in the United Kingdom throughout the period of one
year immediately preceding that date.
This section recognizes other divorces through proceedings, so normally divorce is through court
proceedings but this is section provide reconition for divorces that is obtain not through
proceedings.

Islamic talaq that is obtain through procedure is recignize under s46(1) because it still get through
court proceedings

Islamic bare talaq-where you just pronounce I divorce you and it wi;; just be a divorce

3) Camillia Anand is a Malaysian girl from Taman Tun. After finishing fashion school, she gets a
stint as a model where she got to travel the world for a year. While in Argentina she meets
Darryl, a local charismatic (but married) journalist and they fall for each other. They
subsequently get married according to Argentinian custom which allows for polygamy. They
decide to live in the Maldives, a Muslim country.

What is the status of their marriage?

Whether the marriage of Camilia and Darryl is valid

Formal validity rule

M v M: the character of a marriage (whether monogamous or polygamous) is determined by the law

of the country in which the marriage is celebrated

(notes)
Qureshi v Qureshi: reference to the law of the place of celebration of the marriage was made, and
since this is English law, where monogamy is the rule, the marriage was regarded as monogamous
for the purpose of invoking the jurisdiction of the court (even though by both the parties’ personal
law the marriage was potentially polygamous).

Since the marriage between Camilia and Darryl took place in Argetina we must first determine
whether Argentina allow the polygamy marriage. Based on the facts , polygamy is allow as it is their
custom and also Darryl is a local there. (formal validity ) is fulfilled

Capacity

IMH Test –

Radwan v Radwan -An English woman married to Egypt Muslim who had another wife in Egypt
where she entered to a polygamous marriage voluntarily. They married in Egypt embassy and
intended to live in Egypt but they subsequently moved to England due to war. -They later divorced
and the issue arose was whether their marriage was valid. The marriage was invalid if DD test was
apply as English law doesn’t allow polygamy. -So the court apply intended matrimonial test as there
is no reason to apply English law which will bar the polygamy. The court also take into the
consideration of her 8 children by not declaring the marriage was void, their kids will be illegitimate.

Radwan v Radwan: allowed a polygamous marriage using the intended matrimonial home test as
there was no reason to apply the English rule against polygamy to a marriage which is to subsist in
another country.

In muslim country they usually allow for polygamy marriages so because of that they would have the
capacity according to IMH test. Radwan v Radwan

Applying to the case the intended matrimonial home is Maldives which is a muslim country that
usually allow polygamus marriage, so the parties would have the capacity to get marry. Therefore,
the marriage is valid.

Maldives will recognoze such polygamus marriage but whetehre or not they have to be muslim
that’s a separate matter. Because that’s a place they decide to live in and that’s a law in that
country.

If want to apply dual dom test need to look at amny factors, because camelia is from Malaysia then if
its from Malaysia we have to condiser things like age etc and we do not have such facts in the
question , because of that that’s why question tulis nak duduk kat Maldives. So tengok question.

For exam-kalau facts is little macam ni takyah apply DD tapi in exam facts wont be little so go
through both test.