1

“CONCEPT OF MARRIAGE & FORMAL VALIDITY OF

THE MARRIAGE”

Subject: Private International Law

Submitted to: - Submitted by:-

Dr. P.P RAO ADHISH

PRASAD
Roll no: - 904

Semester: - 9th
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Session: - 2013-18

ACKNOWLEDGEMENT

I am very thankful to everyone who all supported me for I have completed my project effectively
and moreover on time. I am equally grateful to my Private International Law faculty: Dr. P.P
Rao Sir. He gave me moral support and guided me in different matters regarding the topic. He
had been very kind and patient while suggesting me the outlines of this project and correcting my
doubts. I thank him for his overall supports. Last but not the least, I would like to thank my
friends who helped me a lot in gathering different information, collecting data and guiding me
from time to time in making this project despite of their busy schedules ,they gave me different
ideas in making this project unique.

Thanking you

ADHISH PRASAD
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TABLE OF CONTENTS

1. AIMS & OBJECTIVE………………………….….…………………………...…………4

2. SOURCES OF DATA…………………………………………………………………….4

3. RESEARCH METHODOLOGY……………………………………………………..…..4

4. SCOPES AND LIMITATIONS..........................................................................................4

CHAPTERISATION

i. INTRODUCTION …………………………………………....………….....…..5-6

ii. CONDITIONS FOR VALIDITY OF MARRIAGE…………….…......….…....7-9

iii. CHOICE OF RULE OF LAW..........................................................................10,11

iv. FORML VALIDITY OF MARRIAGE…………....…......................…….…12-16

v. MATRIMONIAL CAUSES......................………..............…………………17-22

vi. CONCLUSION.........................……………...........................................……..…23

BIBLIOGRAPHY……………………………………………………………...….………....24
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AIMS AND OBJECTIVE-

The aim of researcher, in doing the research work is to give a broad outline of validity of
marriage in Private International Law. The project will further analyze the various aspects of
validity of marriage in contrast with the various judicial precedents which are relevant to the
topic.

RESEARCH METHODOLOGY:-

As whole research work for this work is confined to the library and books and no field
work has been done hence researcher in his research work has opted the doctrinal methodology
of research. Researcher has also followed the uniform mode of citation throughout the project
work.

SOURCES OF DATA:-

For doing the research work various sources has been used. Researcher in the research
work has relied upon the sources like many books of Pivate International Law, Articles, and
Journals. The online materials have been remained as a trustworthy and helpful source for the
research.

SCOPES AND LIMITATIONS:-

Though the researcher has tried his level best to not to left any stone unturned in doing
his research work to highlight the various aspects relating to the topic, but the topic being so vast
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and dynamic field of law and whose horizon and ambit cannot be confined and narrowed down,
the research work has sought with some of the unavoidable limitations.

CHAPTER 1: INTRODUCTION

“Marriage is the very foundation of the civil society, and no part of the laws and institutions of a
country can be of more vital importance to its subject than those which regulate the manner and
condition of forming, and if necessary of dissolving, the marriage contract.” The formal
requirement of the marriage will be governed by the law of the country where the marriage is
celebrated. A marriage can be celebrated if the parties meet the substantive requirement of the
domestic law of the country where the marriage is celebrated, and one of the parties is a national
of that state, or habitually resides there; and each party satisfies the substantive requirements of
the law applicable to the parties in accordance with the conflict of law rules of the place where
the marriage is celebrated. This article basically focuses on the marriage as a contract which is
sui generis along with the opinion of various Judges though the judgments in different cases.
However it also talks about the position, legal formalities along with the validity and capacity of
the parties to marriage and the choice of law rules governing such marriages in England and
other common law countries though out the world. On the other hand the focus on the
matrimonial causes like polygamous marriages; divorce, judicial separation, nullity of marriage
in different countries has also been made. Towards the end of the article it talks about the
jurisdiction and the choice of law for solving such causes after marriage and the recognition of
foreign divorces in other countries. The conclusion part tries to give an overall view along with
the present scenario on the subject.

MARRIAGE:

The dictum in Shaw v. Gould1states marriage as “Marriage is the very foundation of the civil
society, and no part of the laws and institutions of a country can be of more vital importance to
its subject than those which regulate the manner and condition of forming, and if necessary of
1
(1868) 3 H.L. 55 : 37 L.J. Ch. 433 : 18 L.T. 833 : 148 R.R. 214
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dissolving, the marriage contract.” In English law, a marriage though a contract, is a contract sui
generis. Each legal system determines the attributes of a marriage; at Common Law in England,
it is in essence a consensual union of a man and a woman. A marriage was a voluntary union
for life of one man with one woman to the exclusion of others 2. This decision was the
foundation of the rule that polygamous marriages were not recognized in England but the
situation has been changed and such marriages are now recognized in England.

Meaning of Marriage

Marriage is a contract by which a man and a woman express their consent to create the
relationship of husband and wife. This contract, however, differs fundamentally from a
commercial contract in the following ways:

 As a general rule, it can only be concluded by a formal public act.

 It can only be dissolved by a formal public act.
 More importantly, it creates a status which is taken into account in relation to, for
example, succession, tax, legitimacy of children, and to some extent in relation to
immigration laws3.

According to Tomlin’s Dictionary, “Marriage is a civil and religious contract, whereby a man is
joined and united to a women, for the purpose of civilized society”4.

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

2
See Hyde v. Hyde, (1866) LR 1 P & D 130
3
See Cheshire & North, Private International Law, thirteenth edn, p. 741.
4
See S.R.Myneni,Private International Law, first edn, p.250.
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CHAPTER 2: CONDITIONS FOR VALIDITY OF MARRIAGE

Conditions:

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

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

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

In De Renville v. De Renville5, the hon’ble court laid down conditions for conferment of status
of marriage as:

1. That the marriage conforms in its essentials with the law of each party’s domicile at the
time of marriage; and
2. That it has been performed in accordance with the formal requirements of the law of the
place where the ceremony takes place, generally called Lex loci celebrationis.

Essential validity of marriage / capacity to marry:

Essential validity involves three elements:

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

2. Capacity to marry in the narrow sense (herein called capacity), i.e., legal ability to marry
at all; and
3. Freedom from legal prohibitions of the particular intermarriage (herein called
prohibitions)6.
5
[(1948) P 100]
6
CONFLICT OF LAWS-ESSENTIAL VALIDITY OF MARRIAGE, By GeofferySawer, LL.M.,Barrister at law., senior lecturer
in law at the University of Melbourne.
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Capacity to Marry

Essential validity covers all questions of validity other than formal validity. Capacity to marry is
a category within essential validity. Capacity to marry ought strictly to be confined to rules
which lay down that a particular class of person lacks a power to marry which other people
possess (for instance, rule that a person below a certain age may not marry). In practice,
however, capacity to marry also includes cases where the reason for the invalidity, is that such a
marriage relationship is objectionable in the eyes of law (for instance, rules prohibited marriages
between relatives of certain degrees). Capacity to marry does not, however, cover the whole field
of essential validity; it does not include the consent of the parties or the non-consummation of
the marriage.

There is general agreement that this terminology includes matters of legal capacity such as
consanguinity and affinity, bigamy and lack of age. Consideration is given later to a law to
govern matters of consent and physical incapacity. The fact that capacity as a term encompasses
a wide range of matters does not necessitate the conclusion that all matters of capacity should be
subject to the same choice of law rule- a matter to which we shall return. A further preliminary
point which ought to be borne in mind is that, provided that a person has capacity under the
relevant law, the fact that he is, for example, under age according to English law will not
invalidate the marriage in the eyes of English law as the law of the forum at least if the marriage
is not in England.

There are two main views as to the law which should govern capacity to marry-

 The dual domicile doctrine, and

 The intended matrimonial home doctrine.
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Consent of Parties

The rule states that no marriage is valid if by the law of either party’s domicile he or she does not
consent to marry the other7. There appears to be no specific authority in England on the subject
though observation by the Court of Appeal, in a case where the issue was whether a marriage by
proxy was valid, observed that the mode of giving consent, as opposed to the fact of consent
would be governed by the lex loci celebrationis. It was also held that the consent is governed by
the law of the domicile of the parties. 8 The question that arises is as to which lexdomicilii has to
be considered, of both parties, or of the party whose consent is in question. The consensus seems
to be, though there is no decision on the subject, that is should be domiciled of the person who is
alleged to have lacked consent. In Davison v. Sweeney,9 it was held that alleged absence of
consent was a matter for a domicile of the party concerned.

In Canada, consent is regarded as a part of essential validity of a marriage and depends on the
ante nuptial domicile of the parties.

7
Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.
8
Way v. Way [1949] All ER 959.
9
(2005) 255 D.L.R. (4th) 757 (BC)
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CHAPTER 3: CHOICE OF RULE OF LAW

Formal validity is governed by the law of the country where the marriage is celebrated, that law
is not generally thought appropriate in the English conflict of laws to govern the essential
validity. This is because the marriage may be celebrated in a country which in other respect has
no connection with the marriage or the parties. Neither of the parties may be domiciled there
before the ceremony and they may not establish their home there after it. The choice of law rule
doctrines are as under:

1. Dual Domicile Doctrine

According to the dual domicile doctrine rule is that a person’s domicile at the date of the
marriage has to be considered. For marriage to be valid, each party must have capacity by
the law of his or her domicile to contract the marriage. This rule commands most in English
law, has several advantages. In terms of principle, it is appropriate that people be governed
by the law of their existing domicile. The main rationale of this rule is that a person’s status
is a matter of public concern to the country to which he belongs at the time of marriage; and
therefore the domiciliary law of each party has an equal right to be heard. In Brook v.
Brook10, the House of Lords dealt with the question of essential validity and held that the
marriage of a man to his deceased wife’s sister in Denmark was invalid because such a
marriage was within the prohibited degrees of affinity under English law, the law of the
parties’ ante-nuptial domiciles, though not under Danish law.

2. Intended Matrimonial Home Doctrine

An alternative approach is that the law of the intended matrimonial homes governs the
essential validity of a marriage.11 This provides a basic presumption in favour of the law of
the country in which the husband is domiciled at the date of the marriage. This presumption
can be rebutted if at the time of the marriage the parties intended to establish a matrimonial

10
(1861), 9 H.L.C. 193, 1 E.R. 703
11
See Cheshire & North, Private International Law, seventh edn, p 276.
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home in a different country and if they implemented that intention within a reasonable
time.12

3. Real and Substantive Connection

Another possibility is that the essential validity of marriage should be governed by the law of
the country with which the marriage has its most and real and substantial connection. As
with the intended matrimonial home doctrine this rule is trying to connect the marriage with
the country to which it belong. Normally, the country with which a marriage is most closely
connected will be the country where the matrimonial home is situated 13. Further, while the
real and substantial connection test has its supporters, it is, in reality, a question- begging
test. The question in which, choice of law rule will best lead to the application of the law to
which the parties and marriages “belong”. This test does not answer the question, but rather
simply restates the problem.14

4. Validity of either Party’s Domiciliary Law

Under this test a marriage would be regarded as essentially valid if it were valid under either
party’s ante nuptial domiciliary law. This proposal has the advantage that it would promote
the policy in favour of validity of marriage, but has little else to commend it.15

5. A Variable Rule

In order to determine the most appropriate choice of law rule, one should examine why a
particular impediment exists and which law has the most interest in the validity of the
marriage. On this basis, the modified intended matrimonial home rule proposed above seems
the more appropriate to govern in capabilities which are imposed to protect the public
interest of countries, rather than the interest of the parties to the marriage. 16

12
Cook, The Logic and Legal Bases of the Conflict of Laws (1942)p448.
13
Lawrence v. Lawrence [1985] 1 All ER 506.
14
Davie, The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English Conflict of Laws’
(1994)
15
Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.
16
Jaffey, Topics in Choice of Law (1996) pp 3-7.
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CHAPTER 4: 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 marriage), and the lex domicilii of either party will be
irrelevant. This rule is simple and easy to apply. 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
17
Paras Diwan & Peeyushi Diwan, 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).
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requirements of personal law of parties (such is position under the Italian Law) is valid, then a
marriage performed accordingly will be valid.

POSITION IN ENGLAND
In recent years, the Common Law rules have been considerably varied by statute; such changes
are not discussed as the statutes would have no application outside England or United Kingdom.
A marriage is formally valid when any one of the following conditions as to the form of
celebration is complied with (that is to say):20
I. If the marriage is celebrated in accordance with the form required or recognized as
sufficient by the law of the country where the marriage was celebrated.21
II. If the marriage was celebrated in accordance with the English common law in a country
where the use of the local form is impossible.22
III. If the marriage, between parties of whom at least one is United Kingdom national is
celebrated outside the Commonwealth in accordance with the provisions of, and the form
required by, the Foreign Marriage Acts, 1892.23
The leading more modern authority in England on the point is Sottomayor, otherwise De Barros
v. De Barros,24 where the Court of Appeal held that „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; but, as in other contracts, so in that marriage, personal capacity
must depends on the law of the domicile; and if the laws of any country prohibits its subject
within certain degree of consanguinity from contracting marriage, and stamp a marriage between
persons within the prohibited degree as incestuous.‟ In Berthiaume v. Dastous,25 a decision of the
Privy Council in an appeal from Canada, held that a marriage would be regarded as valid 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 of law of the domicile of the parties.
In English Law, two rebuttable presumptions are drawn presuming the validity of marriage:
a) That if the parties go through a ceremony of marriage and live together, they were
validly married.
20
Dicey & Morris, Conflict of Law, thirteenth edn. P651.
21
Rule 67(1) of Common Law Rules
22
Ibid, Rule 67(2)
23
Ibid, Rule 67(5)
24
(1877) 3 PD 1, p 5.
25
[1930] AC 79, p 83
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b) If the parties cohabit and are reputed to be married, they regarded as validly married;
there must, however, be some evidence that the marriage complied with local form. 26

Position in Common Law Countries

Position in Australia
a) Marriage by proxy will be recognized as valid if they are valid under the lex loci
celebrationis.27
b) Where the marriage is performed without the presence of an ordained priest, it had been
held that the marriage would not be recognized in Australia.28
c) Australian Court also recognize as a valid marriage performed according to religious
ceremonies of the parties even if the formalities prescribed by law of the place where the
marriage took place were not complied with in conditions prevailing at the time, whether
the parties were British subject or not.29

Position in Canada
The formal validity of a marriage is generally determined by the lex loci celebrationis.30
The lack of parental consent, when required by the lex domicilii is treated in the Canadian
Common Law Province, as in England, as a question of formal validity, and, therefore governed
by the law of the place where the marriage is celebrated. 31 If the lex loci recoginses as valid a
marriage by cohabitation and repute, such marriage will be accepted as a valid marriage in
Canada.

26
Cristofaro v. Cristofaro (1948) VLR 163.
27
Supra, no. 10
28
Nygh v. Davies, Conflict of Law in Australia, seventh edn, para 24.14
29
Savenis v. Sevenis, (1950) SASR 309.
30
Castel & Walkers, Canadian Conflict of Laws, sixth edn, para 16.2; Forbes v. Forbes (1912) 3 DLR 324.
31
Hunt v. Hunt 14 DLR (2d) 243
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If a marriage, though invalid by the lex loci when considered, is retrospectively validated in the
foreign country the marriage will recognized as valid in Canada even if , by then, both the parties
were domiciled in Canada.

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.32

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.33

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.

Case Laws in India

In Y. Narasimha Rao v. Y. Venkata Lakshmi,34 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.”35
32
Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582.
33
The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23
34
1991 3 SCC 451, at 458.
35
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 Nov. 09 2017).
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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.

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 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.

In a case of Parwatawwa v. Channawwa,36 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,37 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.

CHAPTER 5: MATRIMONIAL CAUSES

36
AIR 1966 Mys 100
37
(1959) ILR 1 Cal 4
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Matrimonial causes are now generally taken to include petition for divorce, nullity of marriage,
judicial separation and presumption of death and dissolution of marriage as well as similar
foreign proceedings which may fall recognition here. The rules relating to the jurisdiction of the
courts and to the recognition of the foreign divorces, annulments and judicial separations are, in
essence, the same for all three matrimonial causes, and therefore be examined together,
identifying where appropriate any rule which do not apply to all three. It will be seen that the one
major area of difference remaining concerns the determination of the law to be applied by the
English Court. It is also necessary to discuss a further preliminary issue, namely whether an
English court will assume jurisdiction to grant matrimonial relief in the case of an actually or
potential polygamous marriage.

Polygamous Marriages and Matrimonial Relief

At Common Law
Until 1972, the rule of English Law was that the parties to a polygamous marriage were “not
entitled to the remedies, the adjudication, or relief of the matrimonial law of England.” 38 It meant
that, in the case of a polygamous marriage, the court would grant a divorce, a decree of nullity
even where the petitioner claimed lack of capacity to enter a polygamous marriage, 39 or a decree
of judicial separation. It can be realized, however, that fundamental reform was called for a view
of the number of immigrants from jurisdictional where they had contracted valid marriages in
polygamous form. A substantial number of people, permanently residents through not domiciled
in England, were denied all matrimonial relief.

Matrimonial Causes Act, 1973

The entire above rule have been changed now and Section 47 40 of the Matrimonial Causes Act,
1973 makes it available to the parties to an actually polygamous marriage a wide range of

38
Supra no. 5.
39
Risk v. Risk [1950] 2 All ER 973.
40
A Court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration
concerning the validity of a marriage by reason only that either party to the marriage is, or has during the
substance of the marriage been, married to more than one person.
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matrimonial relief,41 namely decrees of divorce, nullity, judicial separation, presumption of death
and dissolution of marriage, order for financial provisions in the cases of neglect to maintain,
variations of maintenance agreement, orders for financial relief or relating to children which are
ancillary to any of the preceding decree 42 or order, order made under Part I of the Domestic
Proceedings and Magistrates Court Act 1978, order for financial relief after a foreign divorce,
annulment or legal separation43 and any declaration under Part III of the Family Law Act 1986
involving a determination as to validity of a marriage. Indeed it has been said that the effect of
section 47 of the 1973 Act is to abolish entirely the old rule, so that all forms of relief which can
be classed as matrimonial are now available in the case of polygamous marriages.

Remaining Problems
Where the party to an actually polygamous marriage brings proceeding for divorce alleged
irretrievable breakdown of the marriage, 44difficulties may arise over adultery, unreasonable
behavior or desertion as proof of breakdown.45 If a wife alleges that her husband has committed
adultery with another wife, such a claim will usually fail because, “it is an essential element of
adultery that intercourse has taken place outside the marriage relationship i.e. between persons
not married to each other. This being so, intercourse with a wife could not be adultery.” 46 In
terms of policy this conclusion seems right if both the marriages were entered into in
polygamous form. It has been said47 that in such a case there has been no breach of the obligation
of fidelity imposed by the law governing the marriage, followed by a valid polygamous one. If a
wife divorces petition is based on the husband’s unreasonable behavior, 48 the court will have to
examine all the circumstances of the marriage 49 and it been also held that the taking by the
husband of a second wife is unreasonable behavior towards the first.50
41
Matrimonial Causes Act 1973, Section 47(2).
42
Chaudhary v. Chaudhary, [1976] Fam 148 at 151.
43
Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15. 39Matrimonial Causes Act 1973, Section
47(3).
44
Ibid, Section 1.
45
Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when Part II of the
Family Law Act, 1996 is bought into force.
46
Onobrauche v. Onobrauche (1978) 8 Fam Law 107
47
Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110
48
Matrimonial Causes Act 1973 Section 1 (2) (b)
49
Gollins v. Gollins [1964] AC 644.
50
Poon v Tan (1973) 4 Family Law 161.
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Similarly, if a husband’s petition is based on desertion by the first wife, the fact that he was the
validity married a second wife has been held to give the first wife reasonable ground for leaving
him.51

Jurisdiction

• Divorce and Judicial Separation

It was lead by the Privy Council in Le Mesurier v. Le Mesurier, that „according to international
law, the domicile for the time being of the married pair affords the only jurisdiction and only true
test of jurisdiction to dissolve their marriage.‟ The essence of the rule in this case was that there
should be only one test of jurisdiction and only one court capable of dissolving a particular
marriage, the court of the parties domicile. The Matrimonial Causes Act, 1937, provided that the
Court should have jurisdiction to grant a divorce, in proceeding by a wife, notwithstanding that
the husband was not domiciled in England, if she had been deserted by her husband, or the
husband had been deported from United Kingdom, and the husband was immediately before the
desertion or deportion domiciled in England. 52 These enactments were confined to proceeding by
a wife. They did not extend to cross-petition by a respondent husband. 53 The exercise of the
English Courts jurisdiction in proceeding for divorce is subject to rules requiring or enabling the
court to stay those proceedings in certain circumstances.54

• Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions for the nullity of marriages
was one of the most vexed and difficult question in the whole of the English conflict of laws. An
enormous simplification of the law was effected by section 5(3) of the Domicile and Matrimonial
Proceeding Act 1973. This provides that the English Court have such jurisdiction to entertain
such petition if (and, subject to section 5(5), on if) either party to the marriage:

51
Quoraishi v. Quoraishi [1985] FLR 780 CA
52
Section 13, but now repealed.
53
Levett v. Levett and Smith [1957] P. 156
54
Family Proceeding Rules, 1991
 20

(a) Is domiciled in England on the date when the proceedings are begun
(b) Was habitually resident in England throughout the period of one year ending with the
date, or
(c) Dies before that date and either was at death domiciled in England, had been
habitually resident in England throughout the period of one year ending with the date
of the death.
Without this insignificant exception, the bases for jurisdiction in nullity of marriage are now the
same as in divorce and judicial separation. A voidable marriage no longer confers the husband‟s
domicile at the date of the marriage. 55 The bases for jurisdiction are now same whether the
marriage is alleged to be void or voidable. It is therefore no longer necessary to consult foreign
law i.e. the law of the husband‟s domicile at the date of the marriage.56

Choice of Law

A. Divorce
The question of choice of law has never been prominent in the English rules of the conflict of
laws relating to divorce, which has always been treated as primarily a jurisdictional question.
English Court when deciding whether to recognize foreign divorce have never examined the
ground on which the decree was granted in order to hand, when English Court have themselves
assumed jurisdiction, they have never applied any other law than that of England. In English law
the only possible alternative to the lex fori would be the law of the domicile. No difference
between them could exist before 1938, because English courts did not exercise jurisdiction
unless the parties were domiciled in England. The Court of Appeal determined the question of
divorce by the law which would be applicable thereto if both the parties were domiciled in
England at the time of the proceeding, i.e. English law.57

55
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
56
De Reneville v. De Reneville, [1948] P. 100.
57
Zenelli v. Zenelli (1948) 64 T.L.R 556.
 21

The rule may be justified on the ground that it would be highly inconvenient and undesirable
from the practical point of view to apply foreign law in English divorce suit. Again, to require
English Court to dissolve marriage an exotic foreign ground would be distasteful to judge and
unacceptable to public opinion.

Judicial Separation

Unlike divorce a vinculo matrimonii, judicial separation was a remedy granted by the
ecclesiastical court before 1858. There it was called divorce a mensa et thoro( divorce from bed
and board). The principle effect of a decree was (and is) entitle the petitioner to live a apart from
the respondent, but not to dissolve their marriage nor enable either party to remarry. The remedy
is sought chiefly by person who have religious scruples about divorce. It has never been doubted
that the English court will apply English domestic law and no other, even if the parties are
domiciled abroad.

Nullity of Marriage58

A nullity decree is concern with the validity of the creation of a marriage, unlike divorce which
dissolves a marriage which is admittedly validly created. This means that the choice of law
issues in nullity is essentially the same as those already examined in context of marriage. The

58
Ireland also has decided not to opt on to Rome III: Press Release 10 October 2006,
available at http://www.justice.ie/en/JELR/Page/GovernmentrejectsEUdivorceproposals.
last visited on 10th August, 2015
 22

reason why the choice of law for nullity is more difficult area than divorce is that the effect of
annulment varies according to the particular ground in issue and they vary in relation to the same
ground even within United Kingdom. Some defect avoids a marriage ab initio, i.e. render it void,
whilst other merely renders it voidable. If one party is below minimum age of marriage or is
already married, English Law regards the marriage as void. 59 In Scotland, on the other hand, lack
of consent also renders the marriage void ab initio.60

There are further differences in relation to the effect of an annulment. The annulment of a void
marriage has retrospective effect; it declares the marriage never to have existed. However the
position is different in England in case of a voidable marriage. It has been suggested that, as
annulment of a voidable marriage and divorce decree both only have prospective effect, the law
of the forum should be applied to the former as to the latter.

CHAPTER 6: CONCLUSION

A contract to marry fundamentally from a commercial contract, since creates a status that affects
both the parties themselves and the society to which they belong. It is fulfilled on the
solemnization of the marriage ceremony, and therefore there is a change in the law that governed
the relationship between the parties.

59
Matrimonial Causes Act 1973, Section 11.
60
Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage (Scotland) Act 1977.
 23

There are many different situations in which the existence of a marriage must be established as a
preliminary to legal proceedings. The matter may concern many different parts of the law. Thus
the institution of matrimonial causes, such as a petitioner for divorce and judicial separation,
implies that the parties are related to each other as husband and wife. Each legal system must
determine the attributes of the consensual union between man and woman, the common factor, in
eyes of the English law, of every marriage, which are necessary to create the relationship of
husband and wife. The above project concludes that the case law just illustrates the incidental
question does not attract a mechanical rule. Therefore each case is decided on its own facts and
circumstances.
As far as jurisdiction of English Court is concerned, to entertain proceedings for nullity, if either
party was habitual resident for one year or domiciled in England, or if either of the parties died
before that date and either was at domiciled in England or had been habitually resident foe one
year ending with the date of the death. A nullity decree may declare a marriage either void or
voidable.
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.

BIBLIOGRAPHY
 24

Books

1. Atul M Setalvad, Conflict of Laws, 2nd Ed. Lexis Nexis Butterworts Wadhwa: Nagpur,
2009.
2. Cheshire, North & Fawcett, Private International Law¸ 14th Ed., Oxford University Press:
New York, 2008
3. V.C. Govindaraj, The Conflict of Laws in India, Oxford University Press: New Delhi,
2013.

Articles

1. Rajat Joshi, Validity of Marriage And Conflict Of Laws, ILI Law Review, 2010.