| Conflict of laws |
|---|
| Preliminiaries |
| Characterisation Incidental question Renvoi · Choice of law Public policy Hague Conference |
| Definitional elements |
| Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens |
| Connecting factors |
| Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause |
| Substantive legal areas |
| Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts |
| Enforcement |
|
Mareva injunctions Anti-suit injunctions |
In conflict of laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. As in English Law, some classify marriages as either void or voidable; others have no concept of a voidable marriage; still others have a third category of “non-existent” marriage (e.g., Nichtehe in Germany). The decree of nullity may therefore be no more than a declaration that no marriage had ever come into being, i.e. it is void ab initio, or it may be equivalent to a decree of divorce, i.e., the marriage requires a decree to dissolve it.
There is also wide disagreement internationally as to which choice of law rules should apply. In some states, the lex loci celebrationis deals with most issues of validity; in others, there is agreement that the lex loci celebrationis should determine whether a marriage is formally valid, but disagreement as to which connecting factor: nationality (the lex patriae), domicile (the lex domicilii) or habitual residence, should define essential validity. The Hague Convention on Celebration and Recognition of the Validity of Marriages (1978) makes only limited progress towards a harmonised position. In the EU, the "Brussels II" Regulation 1347/2000 of 29 May 2000 (effective from 1 March 2001) sets out the rules on jurisdiction, and the recognition and enforcement of nullity judgments and of parental responsibility orders for the children of both spouses (the "new Brussels II" Regulation 2201/2003 applies to cases arising on or after 1 March 2005, but the substance of the rules is unchanged).
Contents |
Three public policies are relevant in the general conflict system:
But the conflict rules must be consistent with the forum's domestic policies in relation to marriage. Hence, the further policy considerations are:
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. It should be obvious to parties wishing to marry that they should comply with the local formalities, and legal advice is usually conveniently available. The only drawback to this rule is that, if it were not subject to exceptions, the parties' desire could evade otherwise manadatory provisions in the laws governing their capacity (see "Antenuptual capacity" below). Finally, the effect of retrospective legislation which purports to validate a formally invalid marriage will usually be recognised as an application of favor matrimonii. For the same reason, retrospective attempts to invalidate a narriage will usually fail.
In the U.S., a common law marriage may be celebrated by the exchange of consents without the necessity of the parties being physically present together. Because one cannot identify the place of celebration without involving the contractual rules of offer and acceptance, this form of marriage must usually be valid under the laws of both the states in which the parties were physically resident when they gave their consents, whether by letter, telephone, fax or e-mail.
Here, if consent for one or both parties is given by an agent or proxy, the general view is that the marriage takes place in the state where the proxy gives consent and that law determines whether the form of marriage is valid (Germany and a few others opt for the state in which the proxy was contractually authorised to act, because that is the best evidence as to the validity of the principal party's consent).
In the U.S. and under Scottish law, the parties should reside habitually in one state which accepts this form of common law marriage as valid to establish their intention to marry over time.
Many states apply the lex loci celebrationis to all aspects of the validity of marriage, both formal and essential. Indeed, the courts in the U.S., in most states of Latin America and other states including Denmark and South Africa, do not distinguish between validity as to form and as to capacity.
On questions of status and capacity, courts tend to look to the antenuptual lex domicilii, lex patriae or the law of habitual residence as the laws most closely connected to the parties in terms of public policy. For example, the policy of parens patriae entitles the state to defend the interests of children until they are deemed old enough to be responsible for their own decisions. But there can be disagreement as to when childhood ends and adulthood begins. Some states allow persons to marry when they are fourteen. Others allow marriage at the age of sixteen, but only with parental consent. Others allow marriage at eighteen. Suppose that a man, aged over twenty and domiciled in a state that grants capacity to marry at sixteen, travels to a state which permits marriage at fourteen and there goes through a marriage ceremony with a woman aged fourteen and domiciled in that state. If the test of validity was solely by reference to the lex loci celebrationis, this would allow a man to marry a person with whom it would be illegal to have sex in his own state.
To overcome this problem, common law countries tend to require validity by both sets of personal laws: the so-called "dual domicile test", so long as neither law offends against the public policy of the lex fori. However, there is some support for a reference to the law of the country in which the couple intend to establish their matrimonial home so long as their intention is expressed with sufficient certainty and acted upon. Hence, if the parties are about to go through a monogamous ceremony, neither must have a subsisting spouse (in some states, bigamy is a crime). If the ceremony is polygamous, all the proposed spouses must have the capacity to marry more than one spouse.
Under the common law, the capacity to marry a second (or subsequent) time is probably governed by the law of each party's antenuptial domicile. But this ignores the problem of the recognition of a divorce decree. Suppose that the decree is only recognised under one or neither personal law, but is recognised by the lex loci celebrationis. For example, a man domiciled in England obtains a decree in Nevada and immediately marries a Nevadan woman. If English law did not recognise the decree, this would create a limping marriage, valid in Nevada but void on the ground of bigamy in England. The problem is therefore to decide which question takes precedence. Is this a status question or does the recognition of the validity of the second marriage necessarily extinguish the first marriage? There is no clear answer. For a discussion, see the incidental question.
This is an aspect of the general legal topic of capacity, and it affects essential validity because, in many states, the policy is that marriage is for the procreation of children. Thus, if one spouse has a permanent physical condition at the time of the ceremony which prevents sexual intercourse, this may void the marriage, make the marriage voidable, or require a divorce decree. The willful refusal by one party to consummate the marriage will not usually be a ground for annulment since this is a question of behaviour rather than capacity and so becomes a matter for divorce. Given the improvement in medical science, the number of conditions producing impotence which cannot be treated with some degree of success is declining. Hence, most modern legal cases must now rely on the ground of the affected party's willful refusal to seek remedial treatment and deal with the case to reflect the fact that the marriage has not been consummated. The fact that one of the parties may be infertile and so cannot produce children is not relevant under this heading although it may be relevant if specific representations have been made to induce the marriage and so affect the validity of consent.
The choice of law is the subject of debate. The claim of the lex loci celebrationis to be applied may be slight if neither party has a connection by way of nationality, domicile or habitual residence, and the parties do not make their home there. There is a better claim by the lex domicilii, lex patriae, or law of habitual residence to apply as an aspect of capacity. To allow the lex fori to apply is to open the door to forum shopping, which might produce "limping marriages" and breach a key policy.
A fundamental mistake as to the nature of the ceremony (which would be difficult to prove unless the capacity of one of the parties to understand was affected by a subsisting mental condition, or by the consumption of alcohol or drugs not intended merely to give Dutch courage) or duress would raise an issue of status. Similarly, if a “sham marriage” is alleged, this would deny the status of a spouse. If one of the parties intended to acquire married status, but alleges that there was no valid consent, whether because of a mistaken belief as to the legal effects of the marriage or because of the behaviour of the other spouse, the affected party's ante-nuptial domicile, nationality, or habitual residence should apply. Otherwise, the lex fori should apply.
Under s12 (c) Matrimonial Causes Act 1973 a marriage may be voidable due to lack of consent. This may be the result of duress, mistake as to identity, unsoundness of mind, or otherwise.
In some states, these are expressed as "defects" in the condition of one party and the failure to disclose either condition before going through the ceremony affects the consent given by the other. This may be an innocent mistake, i.e., the affected party was not aware of the defect at the time of the ceremony. Or it may be a positive misrepresentation. Regardless, most states test whether the "innocent" party would have gone through the ceremony had he or she been aware of the true circumstances.
As a reflection of their public policies, most states prohibit marriages between individuals who have a whole or half blood relationship i.e., consanguinity. Similarly, marriages may also be prohibited between individuals who have acquired legal relationships, e.g., by affinity through marriage, adoption, guardianship, etc. Since these policies represent deeply held views within each society, the right of the lex domicilii, lex patriae or habitual residence to apply is usually recognised.