The concept of Marriage under Private International Law

Marriage is a broad concept under Private international law. Many new rules had been laid down in various decisions, which had developed the international matrimonial law. The relevancy of monogamous or polygamous marriages. And the validity matters like formal validity and essential validity is also discussed here

1. BY ADV. CAROLINE ELIAS PRIVATE INTERNATIONAL LAW MARRIAGE

2. MARRIAGE CREATES STATUS Marriage in English law arises out of a contract since there can be no valid marriage unless each party consents to “marry the other”. But it is a contract of a special kind. It cannot be rescinded by mutual agreement of parties. It can be dissolved only by a formal or public act. It creates status. CONCEPT OF ENGLISH MARRIAGE OR CHRISTIAN MARRIAGE :- The concept of Christian marriage was defined in Hyde v. Hyde (1886) as the voluntary union for life of one man and one woman to the exclusion of all others. The requirements of an English marriage are that : (1) the union should be voluntary (2) it should be monogamous (3) it must not be for a limited period.

3. For an English marriage, it need not be a marriage between Christians. Whatever may be the religion of the parties, or the place of marriage, their unions will be regarded as the English marriage provided, in the eyes of the relevant law, it possesses the two attributes namely, indefinite duration and exclusion of all others. POLYGAMOUS MARRIAGE: It is clear from the above facts that polygamous marriages are excluded from the concept of English marriages. Not only actual polygamous unions(i.e. husband actually having more than one wife) but also potentially polygamous marriages. If the husband is entitled by the relevant law to have more than one wife at a time, his marriage is regarded as polygamous although in fact he has only one wife. Thus a Muslim marriage in India is polygamous, although the husband in fact has only one wife.

4. In Sowa v. Sowa [(1961) I All.E.R.687] a marriage was celebrated in Ghana between parties domiciled there. The marriage was potentially polygamous as the law of Ghana allows plurality of wives. The husband promised to go through another ceremony later which according to the Law of Ghana will convert the marriage into a monogamous marriage. He failed to carry out his promise. It was held that in spite of the promise and in spite of the fact that the husband has not taken an additional wife, the marriage should be regarded as polygamous. ENGLISH MATRIMONIAL RELIEFS UNAVAILABLE IN CASE OF POLYGAMOUS MARRIAGES : - The English Court will not grant any matrimonial relief to the parties of polygamous marriage. It was laid in the case of Hyde v. Hyde [1886.L.R.1P&D.130p.133]

5. In Hyde v. Hyde , the petitioner was an Englishman who embraced the Mormon faith (Christ centered faith in Western New York). He went to Utah in the United States and married a Mormon lady according to Mormon faith. After cohabiting with her for three years and having children by her, he renounced Mormon faith, came to England and became the minister of a dissenting chapel . A sentence of excommunication from Mormon faith was pronounced against him in Utah and his wife married another man. He petitioned before an English Court for divorce on the ground of adultery of his wife. According to Mormon faith, polygamy was allowed. Court held the Mormon marriage was potentially polygamous, and this country is adapted to Christian marriages and is wholly inapplicable to polygamy. The parties to a polygamy marriage are not entitled to the remedies, or adjudication / relief of English law.

6. What law determines whether a marriage is polygamous or monogamous :- The relevant law to decide this question is law of the place where the marriage was celebrated – Lex Loci Celebrationis ( law of the place where the marriage was celebrated/solemnized ). E.g. If an English domiciled woman marries a Muslim in England and they live together in Pakistan where the husband is domiciled, the marriage is monogamous, Because it was celebrated in England. But if law of matrimonial domicile is applied in the above instance, the marriage would be polygamous as they were living in Pakistan as husband and wife. i.e. the marriage, in accordance with English law would be monogamous. So according to lex loci celebrationis , If woman domiciled in England marries a Muslim in India, the marriage would be polygamous although they may be living in England as husband and wife.

7. CAN THE NATURE OF MARRIAGE CHANGE ? The nature of marriage may change due to a variety of reasons – (1) Change of religion (2) Change of domicile (3) Subsequent ceremony in monogamous form and (4) Subsequent events which alter the nature of marriage according to lex loci celebrationis . ILLUSTRATIVE CASES:- In Cheni v. Cheni [(1962) 3 All. E. R. 873] Marriage in Cairo between two Jews. According to Jewish and Egyptian laws the marriage is potentially polygamous as the husband can take another wife if no child was born within in ten years. The wife petitioned an English court for a matrimonial relief. The court held that at the inception of marriage, it was polygamous but at the time of the proceedings a child was already born, thus making monogamous. The court recognised this change and assumed jurisdiction.

8. In Sinha Peerage Claim [(1946) 1 All. E. R 348] Marriage between two Hindus in India in 1880. The Hindu law at that time allowed plurality of wives for the husband and hence the marriage was polygamous at its inception. But later the spouses had joined Brahma samaj, one of whose tenets was monogamy. Since the husband had not taken a second wife and since by their new religion they have accepted monogamy, the marriage at the time of the proceedings was recognised as monogamous. In Ali v. Ali [(1966) I All. E. R. 664] as a change from Hyde v. Hyde – wider interpretation – for providing reliefs of succession or legitimacy ) In this case, the parties were both domiciled in India entered into a marriage in India by the time when it was potentially polygamous. They later came to England and the husband acquired an English domicile. The husband petitioned before an English Court for divorce on the ground of wife’s desertion. The court’s jurisdiction depended on the question whether at time of the proceedings the marriage was monogamous or polygamous. It was held that the husband’s acquisition of English domicile and residence in England prevented him from having a second wife; and hence the marriage had become monogamous character. Thus Ali v. Ali is an authority for the proposition that if the husband changes his domicile from a country which permits polygamy to one which does not, this change of domicile changes the character of the marriage and renders it monogamous. This decision is to be welcomed from the practical aspect as it narrows the scope of Hyde v. Hyde.

9. TO WHAT EXTENT POLYGAMOUS MARRIAGES ARE RECOGNISED BY ENGLISH COURTS? It was laid down in Hyde v. Hyde that, the parties to a polygamous marriage are not entitled to any matrimonial relief from an English Court. This does not mean that English Courts will always shut their eyes to polygamous marriages. Today, polygamous marriages are recognised for a large variety of purposes. The break came with the memorable decision of Baindail v. Baindail , where the marriage status of a husband in a polygamous union was clearly recognised. Recognition as a bar to subsequent marriage :- In Baindail v. Baindail (1846) a domiciled Indian of Hindu faith married an Indian woman in India according to Hindu rites. As Hindu law recognised polygamy at that time, the marriage was polygamous in nature. While his Indian wife was still alive, he married an English woman in England by a civil form of marriage describing himself as a bachelor to the Registrar of marriages.

10. When came to know about his first marriage the English wife filed petition for decree of nullity on the ground that her husband was already married when he married her. If Indian marriage is recognised, English marriage will be held invalid and vice versa. Confronted with this situation, the court held that the husband was a married man at the time of English marriage. The Court said that English law does not refuse recognition of polygamous marriages for all purposes. For many purposes the status created by polygamous marriage would have to be recognised; so that he could not contract in a marriage subsequently. (b) For the enforcement of Proprietary rights under personal law :- polygamous marriages will be recognised for the purpose of enforcing proprietary rights conferred on the parties by their personal law. E.g. Muslim widow’s claim to succeed deceased husbands property and funds left in England. (succession of husband’s property by widows)

11. (c) Children of polygamous marriage would be regarded as legitimate :- English court would recognise polygamous marriages for according legitimacy for children under such marriages. In Hashmi v. Hashmi , a Pakistan domiciled husband had married a Pakistani woman, there after he went to England and married an English woman. And in both relationships they had children. The question before the court was the legitimate status of the children by the two marriages. For declaring legitimacy, court declared the marriages as valid. (d) Succession to property by children of polygamous marriages :- Children of both polygamous and potentially polygamous marriages can succeed to the properties in England.

12. (e) Social security legislation :- The recent social security legislative measures in England have accorded statutory recognition for actual and potentially polygamous marriages for the purpose of awarding social security benefits. VALIDITY OF MARRIAGE FORMAL VALIDITY: THE PRINCIPLES OF LOCUS REGIT ACTUM The earlier principles of marriage is that, formalities of marriage are governed by lex loci celebrationis , law of the place where the marriage was celebrated. The maxim is locus regit actum, i.e. the place governs the act. It had good and bad effects. If a marriage is good by the law of the country where it is effected, it need to be considered as good all the world over even though the ceremony would not be recognised in the country where the parties are domiciled.

13. Conversely, if the so-called marriage is no marriage in the place where it is celebrated it is no marriage any where although the ceremony or proceedings if conducted in the place of parties’ domicile, would be considered as good marriage. So if a marriage is good according to the law were it was celebrated, it will be good all the world over. FORMAL VALIDITY & ESSENTIAL VALIDITY Lex loci celebrationis is with regard to the formal validity. Essential validity of marriage is governed by entirely different principles. Formalities of marriage includes such questions as to whether a civil ceremony or a religious ceremony or whether a ceremony at all is required, what should be the number of witnesses, the permitted time when the ceremony can be conducted and such similar matters.

14. In Apt v. Apt [(1947) 2 All. E.R.677] It was held that a rule which admits marriage by proxy (wedding in which one or both of the individuals being united are not physically present, usually being represented instead by other persons) must be considered as relating to formal validity, since it is concerned with the manner in which the marriage ceremony may be conducted. If a woman domiciled in England authorises ‘X’ to act as her representative in a marriage between her and another person celebrated in a country where marriage by proxy is allowed, and if the celebration by proxy is in fact conducted, then, the formal validity of this marriage is unassailable(unable to be attacked), this is so despite the fact that such proxy marriages are not allowed in England. English law considers such rule as relating to formal validity.

15. EFFECT OF CHANGES IN LEX LOCI CELEBRATIONIS A marriage which does not comply with the formalities prescribed by lex loci at the time of marriage may be validated by subsequent retrospective changes in the lex loci. Though originally invalid by the local law, if such marriages are validated by retrospective changes in the local law, the principles locus regit actum is satisfied. In Starkowski v. Attorney General [1953 J 2 All.E.R. 1272] Two Roman Catholics domiciled in Poland were married in May 1947 in a Church in Austria without a civil ceremony. Austrian law at that time did not recognize marriages without civil ceremony. After a few weeks, an Austrian legislation validated such marriages retrospectively provided they were registered in the public register. This marriage was so registered only in 1949 by which time the parties had acquired an English domicile. By 1950 the wife married another man in England. The issue before the court was whether the second marriage in England was valid ; this depended upon the validity of the Austrian marriage. The court held that the Austrian marriage was valid and therefore the English marriage was bigamous and void. The court accepted the retrospective Austrian legislation according to which the marriage was formally valid.

16. ESSENTIAL VALIDITY OF MARRIAGE OR CAPACITY TO MARRY The capacity of the parties to enter into a valid marriage is, no doubt, a matter relating to essential validity. All impediments to marriage such as lack of age, prohibited degrees of consanguinity and affinity, previous marriage, physical incapacity in fact all impediments other than purely formal ones come under this topic. WHICH LAW SHOULD GOVERN THE CAPACITY TO MARRY : There are two theories is regard: (1) Dual domicile theory (2) theory of intended matrimonial home Dual Domicile theory :- This is the traditional & still prevalent view. By this, a marriage is invalid unless according to the law of the domicile of both contracting parties at the time of marriage, they each have the capacity to contract that particular marriage. E.g. A & B , J ews by religion, A being domiciled in Russia & B being domiciled in England at the time of marriage. The marriage was valid by Russian law but invalid in the matter of capacity under English law. According to this theory, the marriage is invalid since the parties do not have the capacity to marry by the English law, although by Russian law such marriages are allowed.

17. Doctrine of Intended matrimonial home :- According to this theory, the capacity to marry is governed by the law of the country where the parties at the time of marriage intended and did actually establish their matrimonial home. In vast majority of cases, this will be the country where the husband is domiciled at the time of marriage. The difference between the two theories lies in the fact that according to the first, an incapacity imposed by the wife’s antenupital (before/ at the time of marriage) domicile will invalidate the marriage, while by the second theory such incapacities will not generally affect the validity of the marriage. In Brook v. Brook , a marriage was celebrated in Denmark between a domiciled Englishman and his deceased wife’s sister also of English domicile. Marriage between a man and his deceased wife’s sister was legal by Danish law, but was illegal by English law at that time. The House of Lords in this case held the distinction between formalities of marriage and capacity to marry. While the former is governed by lex loci celebrationi s, the latter is governed by each party’s ante nuptial domicile .