Choice of law rule

Marriage and divorce Issues

Introduction
 When a case comes before the a court involving foreign
elements to the case the forum Court may obliged under
the conflicts of laws system to consider :
 whether the forum court has a jurisdiction

 It must then characterize the issue

 Then apply the Choice of Law Rule

Contd..,
 In attempting to determine what law governs a dispute of
marriage before it; the court seeks guidance from the
connecting factors ‘lex loci celebratrionis’
 the ‘lex loci celebratrionis’ is Choice of law rule applied to
cases testing the validity of marriage
 When marriage related issues arises between the parties
with diverse background, questions arises as to which legal
system and norms should be applied to the relationship.
 In attempting to determine the issue as to what law governs
the dispute of marriage before it, the choice of law rules for
adjudicating on such issues represents a balance between
the various public policies of law involved.
 Thus for Choice of law purpose, rules about the validity of
marriage are divided in two classes:
 1) Rule of Formal Validity

 2) rule of essential validity

Rule of Formal validity
 Rule of Formal validity lays down the way in which a
marriage must be celebrated.
 Formal validity is governed by the lex loci celebrationis,,
the place where marriage occurred
 Thus, Under formal validity the courts is concerned with
the law which governs the ceremony and other formalities
required for the valid celebration of a marriage.
Rules of Essential validity
 Rule of Essential validity is concerned with the substance of the
marriage relationship itself. It is governed by the personal laws of
parties
 The validity of marriage is governed by by the capacity of the parties
to marry each other. And capacity to became the spouse is usually
governed by the domicile of the parties.
 Lex Domicili appies in all the matters

 There are mainly two doctrines as to the law which should govern
capacity to marry:
 A) The Dual Domicile Doctrine

 B) The Intended Matrimonial Home Theory

The Dual Domicile (Ante
Nuptial )Domicile of Each party
 This is prescribed that a marriage is invalid unless
according to the law of the domicile of both contracting
Parties at the time of marriage they each have a capacity to
contract that particular marriage.
 It mean that if parties are eligible to marry under the law of
domicile , English court swill recognised that marriage as
valid marriage.
 If the marriage is valid according to the law of the domicile
of one party, but unlawful according to the domicile of
other party it will be deemed as invalid.
Contd..,
 For Instance,

Under the dual domicile doctrine, a marriage for instance

between a man of the Jewish faith domiciled in Egypt and a
woman of the same faith domiciled in England, the latter
being his niece, is valid since a marriage between persons so
related through permissible in a Egypt, is prohibited by
English law.

The law is the law of country to which a person Belongs.

Brook v. Brook
 A marriage was celebrated in Denmark between a
domiciled Englishman and his deceased wife’s sister also
domiciled in England, such marriage being legal by Danish
law, but illegal in English Law .
 The house of lords held that the marriage was void, since
its validity must be determined by English law which was
the Lex Domicili of the parties.
Contd.,
 There can be no doubt of the general rule that foreign
marriage, valid according to the law of country where it is
celebrated, is good every where. But while the forms
entering into the contract of marriage are to be regulated by
the lex loci contractus, the law of the country it is
celebrated, the essential of the contract depend upon the lex
domicili.
Governing matters to capacity to
marry
 1) Consent of the parties

 2) Prohibited Degree

 3) Non Age
1) Consent of the Parties
 Consent of the parties to marriage has been characterized as matter of
essential validity of marriage and there for governed by the ante nuptial
domicile of the parties
 H v. H

A Hungarian domiciled girl underwent a ceremony of marriage in Hungry

with her cousin who was domiciled in France. Parties never lived together
eventually the husband left for the France and wife left for the England .
The wife petitioned in an English courts for the decree of nullity of
marriage on the ground that the marriage was void for the lack of consent,

The court passed an order stating that .. Id there is any mistake on the
marriage it will be considered as there is no consent of the parties in the
marriage and be considered as void marriage.
Mehta v. Mehta
 The marriage was held void since the ceremony that she
underwent was in fact the ceremony of the marriage
through the thought it was of betrothal
Material validity of Marriage
 The lex fori or proper jurisdiction to adjudicate legal
dispute, will usually be the the State where the spouse have
sought to make their matrimonial home.

 Religion : Where worshippers wish to marry according to

the tenets of their religion, the Stages must decide
Non Age
 AT what age a person acquires capacity to marry differs
from country to country
 Pugh v. Pugh

A british officer, domiciled in in England but statined in

Australia married a Hungarian girl in australia in 1946, the
girl whose domicile by the origin was Humgry had
undergone to austratlia with her parents

She was only 15 and therefore if her capacity was to be

governed by English Domestic Law.
Contd.,
 By both Hungarian and Australian law the marriage was
valid . But court held that marriage to be nullity on the
ground that all the person domiciled in the United kingdom
whenever the marriage might be celebrated were affected
by the act and by the law if husband domiciled which he
Could not lawfully enters.
Prohibited Degree
 Every country lays down the degree of prohibited
relationships and marriage in violation of this are invalid.
 Mette v. mette A German domiciled in England married in
Germany after the death of his wife, his wife’s sister who
was the domiciled in Germany .
 The Marriage was valid by German law, But void by
English law
 The English Court held the marriage Void.
The Intended Matrimonial Home
Theory
 Under this theory, the parties capacity is tested with
reference to the law of the place wher they intended to
established theor home after marriage
 The theory attributes to the parties the intention to settle
down in the place of the husband ‘s domicile and therefore
it can, in fact treated as husband’s domicile.
Case:
 PARWAWATHAWWA V. CHANNAWWA

 A person domiciliary of the erstwhile native State of Hyderabad (a

foreign State at that time )married to Channawwa, domiciles in
Bombay, While he was already married.
 Bigamy was Prohibited in terms of the Bombay Prevention of Hindu
Bigamous marriage Act (Which has no counterpart in Hyderabad )
on the death of husband the question of succession of property arises
in in turn raise the question of validity of the second marriage.
 The marriage was void as per the principle of Dual Domicile but
valid if in terms of Intended matrimonial Home Theory as the Parties
were supposed to setup their home in Hyderabad where polygamy
was not prohibited.
Characterization of Marriage
 What is the governing law for characterization of maariage
either as polygamous or Monogamous? Four Possible
answer :
 1) The personal laws of the parties

 2) The pre- marriage domicile of the parties

 3) The Law of matrimonial home

 4) The lex loci celebrationis

Polygamy and Bigamy
 Some States have defined married as the union of one man
to one woman ‘to the exclusion of all others and have
decimalized bigamy or have made polygamy an offence.
Thus most of countries allow only monogamous marriage,
polygamous has been been practiced sparsely throughout
history in almost all cultures and sanctioned by various
religious where necessary to meet population or economic
needs.
Lee v. Leu
 It was observed that taking the view that nature and
incidents of marriage are determined by the lex loci
celebrationis and the characterization of marriage as to
whether it is monogamous or polygamous is determined by
the lex fori.
 In Ali v. Ali the court said that a person whose personal
law permits polygamous cannot validity take a second wife
if he changes his domiciled to England.
Sofia v. Shive Prasad
 An Indian Domiciled Hindu already having Hindu wife,
married a Jewess in Paris. The Parties came to India.
 After some time the wife filed a petition in an Indian Court
foe a decree of nullity on the ground that at the time of her
marriage the respondent already had a wife living.
 The Calcutta court held that since the first marriage of the
respondent being a polygamous marriage would not be
recognised under the French law – the lex loci
celebraitonis, his second marriage with petitioner was
valid.
 Matrimonial
Causes- Dissolution
of Marriage
English Private International Law
and Dissolution of Marriage
 Two theories have been developed to explain the legal
standards fir the dissolution of marriage.
 A) Consent Theory

 B) Breakdown theory
In India
 The Indian Divorce Act, 1869 recognize only one ground of
Divorce available to the husband that is Adultery by the wife.
 The Wife can sue for divorce on any of the following grounds
like ..,
 The husband has converted into some other religion;

 Taken up a second wife

 Adultery

 Or of rape

 Unnatural sexual conduct amounting to offence

Contd.,
 But after the amendment of this act, this Scenario has been
changed from 2001 and provided 10 ground for the
dissolution of marriage.( Sec 10 of the Act)
 In same way Parsi marriage and Divorce Act, 1936 has
also 11 grounds for dissolution of marriage.
 Special Marriage act 1954 is a blend of the three Strands of
theorizing the ground of divorce- the guilt theory, Consent
theory, Breakdown theory.
 Hindu Marriage Act1955 has nine Grounds of Dissolution
of Marriage
Jurisdiction of Court
 The jurisdiction of Court can be invoked by the residence
within its territory, and for a petition of divorce the
requirement is that the domicile of the parties.
 The petition for the nullity of marriage can be presented
only if the marriage is solemnized in India.
 And petition was the resident of India at the time of
presenting the petition.
Arthur Flowers v. Minnie Flowers
 The Parties were resident of Hyderabad, and the husband
often travelled to Meerut. On some of official visits the
wife accompanied him. One on such official visit the
husband filed the petition in Meerut for judicial separation
on the grounds of Adultery of his wife, Declining to
exercise the jurisdiction in this matter the Allahabad High
court said that mare casual visit to the place especially
parties have there residence outside of the the jurisdiction,
will not confer the jurisdiction of the court .
Tara V. Jiapal singh
 The Parties did not setup any permanent residence and
lived at various places for short period, and in this manner
when they were living at Darjeeling for a week the
marriage broke down. It was held that the last they last
resides together in Darjeeling and hence the jurisdiction of
the court in Darjeeling Exits.
Murphy v. Murphy
 After the marriage was solemnised the parties lived in
Bombay Hotel for the long period of One month; the
husband then left for Mesopotamia to join active service
there. Parties having not established matrimonial home and
the living at the Bombay hotel was all that they had of
common residence after marriage, it was held by the
Bombay High court that their stay in Bombay, however
temporary could still be considered as residence.
Choice of Law
 Court will Apply Personal laws of the parties

 In respect of marriages solemnized under the foreign

marriage act, 1969, that legislation contains the provision
of Special marriage act shall apply.
Recognition of Foreign
Judgments
 Case: Anoop Beniwal v. Jagbir Sing Beniwal

 The facts of the case are that the plaintiff had filed the suit
for divorce in England on the basis of the English Act, that
is the Matrimonial Causes Act, 1973.
 The particular ground under which the suit was filed was “
that the respondent has behaved in such a way that the
petitioner can not reasonably expected to live with the
respondent’
 This Ground is similar to the the provisions specified
within the section 1(1)of matrimonial causes act.
Contd.,
 The decree was obtained in English court and came to
India for the Enforcement. The decree was enforceable in
India.
Non Judicial Divorce
 The foreign divorce obtained in non judicial proceeding
would be recognised is it was valid under the law of
country where it was granted; they would also.
Non recognition of foreign
Divorces
 In situation where either of the two following grounds, is
proved, the English court would not recognize the foreign
divorce.
 A) When there is violation of Principle of Natural Justice

 When the recognition of foreign divorce would manifestly

be contrary to public policy.
Judicial Separation
 The Grounds for Judicial Separation are laid down in in a few
law explaining the legal status of matrimonial relationships.

In England if,

At the time of the institution of proceedings, either party was

domiciled in England

At the time of the institution of the proceedings either party was

habitually resident in England for the period of the one year

…..the judicial separation can be invoked.

In India…
 The Indian law does not make any distinction between
matrimonial causes with regard to the rules of jurisdiction.
Recognition of foreign decree of
Judicial Separation
 As far as recognition decrees of judicial separation, it
seems that except for the fact that Indian court have applied
the general provision of section 13 of the Civil Procedure
Code to the foreign decree in matrimonial Causes.