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2010] ILI Law Review 269

VALIDITY OF MARRIAGE AND CONFLICT OF LAWS



Rajat Dosi

Abstract
Marriage, which is considered as one of the vital societal institutions to carry forth the
society, may also now-a-days lead to conflict of law situation between two different
countries. To tackle such a situation, every country has its own Private International Law
rules. In Private International Law, the validity of marriage is dependent upon two things,
formal and essential validity of marriage, for which every country has its own rules. In this
paper, the first chapter deals with introduction to marriage and its relation with conflict of
laws. The second chapter deals with formal validity of marriage and its position in
different counties. The third chapter deals with essential validity of marriage and its
position in various countries. The fourth chapter provides a comparative analysis of five
different countries. The fifth chapter deals with Hague Convention and lastly, the sixth
chapter deals with recommendations and suggestions.

I. Introduction

Marriage is a universal human institution which has formed the foundation of the family
1
throughout history. It usually means a voluntary union for life of one man with one
2
woman to the exclusion of others. While the traditions surrounding marriage ceremonies,
the rights and obligations of marriage, the way of choosing one's marriage partner, and
3
even who all are permitted to marry may differ from culture to culture. In the case of
4 5
Shaw v. Gould, Lord Westbury was of the view that:
Marriage is the very foundation of civil society, and no part of law and
institutions of a country can be of more vital importance to its subjects than
those which regulate the manner and the conditions of forming, and if
necessary of dissolving, the marriage contract.

 4th year, B.A. LL.B(Hons.), Rajiv Gandhi National University of Law, Patiala, Punjab, India, Email:
rajatdosi@gmail.com.
1
New World Encyclopedia, available at: http://www.newworldencyclopedia.org/entry/Marriage (last visited
on April 28, 2010).
2
Hyde v. Hyde, (1866) LR 1 P&D 130.
3
Supra note 1.
4
Shaw v. Gould, (1868) L.R. 3 H.L. 55, at 82.
5
J.H.C. Morris, The Conflict of Law 187 (Sweet & Maxwell Ltd., London, 2005).
270 Validity of Marriage and Conflict of Laws [Vol. 1:2

All over the civilized world and in every legal system of the world, marriage is a
6
very important social institution. Whether considered as a sacrament or a contract,
marriage gives rise to status. It confers a status of husband and wife on the parties to
marriage and it confers a status of legitimacy on the children of such marriage. Thus, the
basic difference between the marriage and any other contract is that while a commercial
7
and mercantile contract does not give rise to any status, marriage gives rise to status.
Now a question may arise as to how a marriage between two interested parties may
lead to conflict of laws situation between laws of two different countries. For example,
Tom and Mary are a married couple in England. Although originally, Tom is from France
but he marries Mary who is from England. Now suppose they want to get divorced, there
could be a conflict of laws situation between French and English laws, as to which law
would be applicable. It has been similarly held by most authors and jurists that if a
matrimonial dispute arises between parties to a marriage which are nationals or citizens of
two different countries or were domiciled in different countries before the marriage or
place of domicile were different (in case of web marriages), etc. For e.g. - Suppose Tom
and Mary is a married couple in England. Originally, Tom is from France but he marries
Mary, who is from England. Suppose now they want to get divorced, there could be a
conflict of laws situation between French and English laws, as to which law would be
applicable.
Thus, every country in order to deal with this problem of conflict every country has
had to develop certain rules or laid down certain statutes which determines the laws of the
place would be applicable in case of a matrimonial dispute of this particular kind.
Now, in every system of law for the validity of marriage the fulfillment of the two
conditions is necessary:-
 Parties to marriage must have the capacity to marriage and have agreed to marry
each other with free consent and not under any sort of coercion or force. This is,

6 In western countries marriage is considered as contract, but Roman Catholic Church still insists that
marriage is a sacrament. Though Muslims consider it as a contract but in case of Hindus it is something in
between contract and sacrament.
7Paras Diwan & Peeyushi Diwan, Private International Law 237 (Deep & Deep Publications, New Delhi,
1998).

270
2010] ILI Law Review 271

in Private International Law, called the Question of essential or material validity of


marriage.
 Parties must have performed necessary ceremonies and rites of marriage, which is,
in Private International Law, known as Question of formal validity of marriage.

Only that marriage will be valid which is both formally and essentially valid, and if any of
the two conditions are not satisfied or fulfilled, the marriage is void.
In distinguishing between matters regarded as essential and those of pure formality,
a test has been laid down R.H. Graveson, according to which, those matters which are
regarded as vital to the maintenance of an accepted standard in the matrimonial and family
relations of any given society, whether on the grounds of consanguinity, religion or
otherwise, will be regarded as essentials of marriage, to be governed by the personal law of
each party; while the matters of less vital social interest, such as the length of public notice
to be given before the celebration of a marriage, the number of witnesses whose presence
is required at a ceremony, will be treated as pure formalities, to be determined exclusively
8
by the law of the place of celebration.
Further, two principles need to be known before going on to the discussion about the
rules applicable in different countries on various matrimonial issues:
 Lexi Loci Celebrationis – The law of the place where a contract of marriage is
9
performed. For A French citizen marries B, an Italian citizen, in India, now in case
of any dispute which needs to be solved by the principle of Lexi Loci
Celebrationis, will be solved according to the Indian Law rather than French Law
or Italian Law, as the marriage was contracted or performed in India. The original
rule was that the validity of marriage was solely depended upon the law of the
10
place of celebration (Lexi Loci Celebrationis). Larry Kramer has pointed out,
“there is nothing in the Constitution or any other source that prevents a state from

8R.H. Graveson, Conflict of Laws 251 (Sweet & Maxwell Ltd., London, 1974).
9Atul M. Setalvad, Conflict of Laws 13 (LexisNexis Butterworths Wadhwa, Nagpur, 2009).
10 Supra note 5 at 188.
272 Validity of Marriage and Conflict of Laws [Vol. 1:2

not following the ‘place of celebration’ rule for recognizing marriages, but it
11
continues to be the rule followed in every jurisdiction.”
12
 Lex Domicilii – The law in force in country or place where a person is domiciled,
13
or the law of person’s domicile. For example, A and B, who are domiciled in
England, marry in France. But certain matrimonial dispute arises which needs to be
determined or solved according to the principle of Lex Domicilii, then the English
Law will be applicable rather than French Law as England was the place were both
the parties were domiciled.

The effect of the conflict of laws rules applicable to marriage and divorce is that a
person married in under the shadow of one set of marriage and marriage-dissolution rules
can find her marriage later dissolved under quite different rules, either because of changes
in the local law or because one or both parties have moved i.e. change in the domicile of
either or both of the parties. As a result, parties entering marriage cannot plan on the basis
of the current law, because they cannot rely on that law being enforced at the time of (an
14
attempted) dissolution.

II. 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
15
on. 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

11
Larry Kramer, “Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception”,
106 Yale L.aw Journal 1965, 1969 (1997).
12 Supra note 9 at 13.
13 J.G. Collier, Conflict of Laws 7 (Cambridge University Press, Cambridge, 2001).
14Brian H. Bix, Choice of Law and Marriage: A Proposal, presented at the June 2001 North American
Regional Meeting of the International Society of Family Law held in Kingston, Ontario.
15 Supra note 5 at 189.

272
2010] ILI Law Review 273

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
16
with the local formalities.
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
17
valid, irrespective of the fact whether it complies with the lex loci celebrationis. In China
too, for the substantive conditions of marriage, the applicable laws relate to the law of the
18
place where the marriage takes place or the personal law of the parties (or both).
Likewise in Scotland, a marriage which is solemnized outside Scotland should be formally
19
valid under the law of the place where it is celebrated.
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 requirements of personal law of parties (such is position under the Italian Law) is valid,
20
then a marriage performed accordingly will be valid.

16Nullity (conflict), available at: http://en.wikipedia.org/wiki/Nullity(conflict) (last visited on April 20,


2010).
17 Paras Diwan & Peeyushi Diwan, Supra note 7, at 266.
18Wang 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).
20 Supra note 7 at 267.
274 Validity of Marriage and Conflict of Laws [Vol. 1:2

Position in England
 Lex Loci Celebrationis – In England it is a noted and a well-settled fact that the
marriage must satisfy the formal requirements of the lex loci celebrationis, it is a
view long held at Common Law. The leading modern authority in England on this
point is Sottomayor, otherwise De Barros v De Barros (No 1), where the Court of
Appeal held:
“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
21
constituted.”
A marriage would be regarded as valid even 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 by the law of the domicile of the parties; this has been
described by the Privy Council in that case as one question better settled than any
22
other in international law.
 Locus Regit Actum – It is also a well established rule of English Private
International Law that a marriage to be formally valid must comply with the local
law – locus regit actum. A marriage which does not comply with the formalities of
local law is not valid. This rule 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 requirements of the personal law of
23
the parties is valid, then a marriage performed accordingly will be valid.

 Retrospective Legislation - This principle is so well recognized in English


Common Law that it has been held that English courts would recognize as valid a

21 Sottomayor, otherwise De Barros v. De Barros (No 1), (1877) 3 PD 1, p 5. The court, which was really
considering whether a marriage solemnized in England between cousins, both domiciled in Portugal, was
valid and held that it was not. In the past, at Common Law, questions of capacity to marry were also
determined by applying the lex loci celebrationis, and this rule was laid down in this case.
22 Berthiaume v. Dastous [1930] AC 79, p 83. A decision of the Privy Council in an appeal from Canada,
where the question was whether a marriage by religious rite in France, without a civil ceremony required
under French law, would be recognised in Quebec in Canada where a marriage by religious rites alone would
be valid, and it was held that it could not be recognised.
23 Paras Diwan & Peeyushi Diwan, Supra note 7, at 267.

274
2010] ILI Law Review 275

marriage invalid by the lex loci celebrationis when performed but later,
24
retrospectively, validated in that country. The question arose in the case of
25
Starkowski v. AG, were the wife of a Polish domicile of origin entered into her
first marriage at a church in Austria in May 1945. At that time by German marriage
law, which was in force in Austria, a religious ceremony does not constitute a valid
marriage since a civil ceremony was required. In June 1945, an Austrian decree
was passed to the effect that religious marriages celebrated between 1 April 1945
and date of the decree should be valid as soon as they were registered in the Family
Book. The House of Lords held that, where there had been retrospective legislation
which had the effect of validating an earlier marriage, the balance of justice and
convenience was clearly in favour of recognizing the validity of such retrospective
26
legislations. Accordingly, the first marriage was valid.

But according to Cheshire, there is a limitation attached to this principle i.e., the
principle should not apply if the formalities prescribed by the retrospective law
were complied with after one of the parties had married another person, or in cases
where the retrospective legislation takes effect after the marriage has been declared
27
as invalid by an English court.
 Marriage by Proxy – In England marriage by proxy is recognized as valid and the

place where the marriage was performed is the place where the proxy was present,
28
and not the place where the proxy was appointed.
 Exception – In cases where it is not possible to comply with the formalities

29
prescribed by the local law, a different view is taken. This exception to the
requirement that the marriage must comply with the lex loci is only available if
there is insuperable difficulty, not merely that it is difficult or that a minimum
period of residence prescribed by the lex loci would involve parties having to

24 Starkowski v. Attorney General, [1954] AC 155, [1953] 2AJI ER 1272.


25 Ibid.
26 Abla Mayss, Principles of Conflict of Laws 225-226 (Cavendish Publishing Limited, London, 1999).
27 Cheshire, North & Fawcett, Private International Law 880-881 (Oxford University Press, Oxford, 2008).
28 Apt v. Apt, [19481 P 83, [1947] 2AII ER677 (CA).
29 Supra note 9 at 340.
276 Validity of Marriage and Conflict of Laws [Vol. 1:2

30
wait. If it is not possible to comply with the lex loci, any reasonable form chosen
by the parties would suffice to constitute a valid marriage. An example is a
marriage in Singapore between a Chinese woman and a Jewish man, both British
subjects, by a form of ceremony which was a composite between the Jewish and
Chinese forms, there being no form applicable in such cases; the Privy Council
31
upheld the marriage as a valid common law marriage.

Position in Australia
Australia also follows the Common Law principle that a marriage must satisfy the formal
requirements of the lex loci celebrationis.
 Marriages by proxy will be recognised as valid if they are valid under the lex loci
32
celebrationis.
 Australian courts also recognise as valid a marriage performed according to
religious ceremonies of the parties even if the formalities prescribed by the law of
the place where the marriage took place were not complied with in circumstances
33
when it was not possible to do so because of the conditions prevailing at the time.
Where, however, compliance with the prescribed formalities was not impossible,
the marriage in some other form would probably not be recognised as valid in
34
Australia.

Position in China
35
Pursuant to the General Principles of the Civil Law of China, the applicable law for a
marriage between a Chinese citizen and a foreigner is also the law of the place where the
marriage takes place. Thus, if a Chinese citizen and a foreigner are married within China,

30 Dicey, Morris & Collins, Conflict of Laws 20-21 (Sweet & Maxwell Ltd., London, 2009).
31 Penhas v. Tan Soo Eng, [1953] AC 304.
th
32 Nygh & Davies, Conflict of Laws in Australia 24.1 (LexisNexis Butterworths, Sydney, 7 edn., 2002).
33 Nygh & Davies, Supra note 32, at 24.15.
34 Tilbury et. al., Conflict of Laws in Australia 602 (Oxford University Press, Melbourne, 2002).
35 Adopted at the Fourth Session of the Sixth National People’s Congress, and promulgated by Order
No.37 of the president of the People’s Republic of China on 12 April 1986, and effective as of 1 January
1987.

276
2010] ILI Law Review 277

Chinese law is applicable; if a Chinese citizen and a foreigner are married outside China,
36
the applicable law is the law of the place where the marriage takes place.

Position in Scotland
As a general principle, Scotland also follows the Common Law principle that a marriage
must satisfy the formal requirements of the lex loci celebrationis. There is no certainty
whether Scots law or the law of the domicile would be applied in its place, where the law
37
of the place of celebration is inapplicable in cases of impossibility or extreme difficulty.
There is also uncertainty whether Scots law would adopt the further extension of the
38
exception in the case of marriages involving occupation forces (as it is in England).

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
39
formal validity would be governed by the lex loci celebrationis.
 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
40
validity was the lex loci celebrationis.
 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
41
celebrationis.

36 Wang Hui, Supra note 18, at 5-6.


37 Eric M. Clive, Husband and Wife 147 (Scottish University law Institute, Edinburgh, 1982).
38 Supra note 19 at 3.
39 Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582.
40 The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23.
41 Supra note 9, at 340.
278 Validity of Marriage and Conflict of Laws [Vol. 1:2

III.Essential Validity of Marriage

Another major issue relating to choice of law in the context of marriage is the question of
which law governs capacity, otherwise known as the essential validity. This question
covers a wide range of issues, such as consanguinity (blood relationships), affinity
(relationships created by the virtue of marriage), re-marriage and lack of age. As a general
rule, capacity to marry is governed by the dual-domicile rule, but it is also subject to
certain exceptions.
42
The dual domicile or the double domicile rule stems from the traditional theory
that capacity to marry is governed by the ante-nuptial domicile of both the parties. Its
effect is that a marriage will be valid if it is so by the law of the domicile of each
contracting party immediately before the marriage. Clearly, this theory has certain merits,
simply because it tends to preserve equality between the parties by looking to the law of
the domicile of each of them. It must be noted, however, that there exists a rival theory,
43
which submits the question of capacity to the law of the intended matrimonial home.
Cheshire maintains that the capacity of marriage, and all other questions of essential
44
validity of marriage, should be governed by the law of the matrimonial domicile.
According to him, “The basic presumption is that the capacity to marry is governed by the
law of the husband’s domicile at the time of the marriage, for normally it is the country of
where the parties intend to establish their permanent home. This presumption, however, is
rebutted as it can be inferred that parties at the time of marriage intended to establish their
45
home in a certain country and they did in fact establish it there within a reasonable time.”
This law of each party’s domicile has been aptly called “the proper law by which
46
capacity to marriage is to be tested.” It involves the two factors of space and time,

42 Id. at 345.
43 Supra note 26 at 259.
44 Supra note 7 at 267.
45 Supra note 27 at 288.
46 By Sir Jocelyn Simon P., in the case of Cheni v. Cheni, [1965] P. 85, at 93. (Marriage between a Jewish
Uncle and Niece).

278
2010] ILI Law Review 279

namely the law of what country and when, which is resolved in favour of the law of the
47
ante-nuptial domicile of each party at the time of their marriage.

Position in England
 In the past, English law regarded questions of capacity to marry to be governed by
the lex loci celebrationis. But it is now settled law that capacity is governed by the
law of the domicile of the parties, so that a marriage between cousins, who could
not marry each other by the law of their domicile, Portuguese law, was not valid
48
though celebrated in England, where there was no such incapacity.
 The British Law Commission has examined the issue and recommended against
any legislation on the ground that the present rule, coupled with the approach of
English Courts to uphold a marriage, if possible, provides the flexibility which
49
would be lost if some uniform rule was enacted by legislation. Thus the
ambiguity also gives wide powers to the judiciary, to let them decide the conflict
on the basis of principles of legal system in which they operate.
 Further, in few English decisions, it has been held that consent is governed by the
50
law of the domicile of the parties. Now, the question that arises is as to which
lex domiciIii 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 it should be the domicile of the person who is alleged to have lacked
51
consent.
 In Vervaeke v. Smith,52 where the question did not arise for decision, one of the
Law Lords has suggested that questions of what he called the essential validity of
a marriage should be determined by applying the law with which the marriage has
the most real and substantial connection.

47 Supra note 8 at 257.


48 Sottomayor otherwise De Barros v. De Barros, (No 1) 0 877) 3 PD 1 (CA).
49 Supra note 9 at 346.
50The cases relied upon are Way v. Way [1950] P 71, [1949] 2 All ER 959 and Kenward v. Kenward [ 1951] P
124.
51 Supra note 30, supra note 27 at 975.
52 Vervaeke v. Smith, [1983] 1 AC 145, 166, [1982] 2 All ER 144.
280 Validity of Marriage and Conflict of Laws [Vol. 1:2

Position in Australia
 Capacity to marry is governed by the law of the ante nuptial domicile of both the
53
parties.
 If parties are within the prohibited degrees as specified in the Australian Marriage
Act 1961, the marriage will not be recognised even if such a marriage would be
54
valid under the law of the domicile of either of the parties.
 If a marriage is performed outside Australia, and either party is domiciled in
Australia, a marriage will not be recognised if either party is below 18, the
minimum age of marriage prescribed by Australian law; if, however, both parties
are domiciled outside Australia, the marriage will be recognised provided that it is
55
valid by the law of the domicile of the parties and the parties are above 16.

Position in Scotland
 In relation to matters of essential validity, the weight of authority in Scotland is in
favour of applying the law of a person's ante-nuptial domicile to determine that
56
person's capacity to marry, and a number of statutory provisions appear to
57
support this approach.
 In Scotland, however, there is no direct judicial authority on the choice of law rules
58
relating to consent to marry. In the case of physical incapacities such as
impotence or willful refusal to consummate the marriage the choice of law rules
59
are undeveloped and unclear.

53 Supra note 32 at 24.20.


54 Supra note 34 at 600.
55 Supra note 9 at 347-348.
56 Marriage (Scotland) Act, 1977 (c. 15), section l(1), 2(1) and (3), and section 5(4)(f).
57 Supra note 19 at 3.
58 Supra note 37 at 156.
59 Supra note 19 at 4.

280
2010] ILI Law Review 281

Position in China
In China, a different law is being followed in relation to capacity to marriage. As per the
60
General Principles of the Civil Law of China, it follows the principle of lex loci
celebrationis, i.e., Chinese law regards the questions of capacity to marry to be governed
61
by the law of the place where the marriage takes place.

Position in India
 In Y. Narasimha Rao v. Y. Venkata Lakshmi,62 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
63
it.”
 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
64
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

60 Adopted at the Fourth Session of the Sixth National People’s Congress, and promulgated by Order No.37
of the President of the People’s Republic of China on April 12, 1986, and effective as of January 01, 1987.
61
Supra note 18 at 5-6.
62
Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 3 SCC 451, at 458.
63
Sujata Manohar, Inter-personal Laws in India, available at:
http://wwwsoc.nii.ac.jp/jsil/annual_documents/2003/autumn/houkoku-abstr/Panel
%20E4%20Manohar%20revised.pdf (last visited on April 28, 2010).
64
Supra note 9 at 350.
282 Validity of Marriage and Conflict of Laws [Vol. 1:2

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
65
which the parties belong.
 In a case of Parwatawwa v. Channawwa, 66 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, 67 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
68
marry which was governed by the law of his domicile.

IV. Comparative Analysis of Countries

COUNTRIES FORMAL VALIDITY OF MARRIAGE MATERIAL VALIDITY OF MARRIAGE

65 Supra note 7 at 265.


66 Parwatawwa v. Channawwa, AIR 1966 Mys 100.
67Bhagwan Ghamshamdas v, Charlotte Zingg, (1959) ILR 1 Cal 4. Section 15 has been amended with
retrospective effect by the Marriage Laws (Amendment) Act 1976, and the amended section only bars a
remarriage till the time prescribed by s 28 for filing an appeal has expired, or until the appeal, if filed, is
dismissed. The conclusion of the learned judge that the marriage in Sri Lanka was void because the husband,
under his personal law, lacked capacity, is not a good law now.
68 Supra note 9 at 349.

282
2010] ILI Law Review 283

England The principle of Lex Loci It is governed by the law of the


Celebrationis along with the domicile of both the parties.
principle of Locus Regit Actum is
followed.

Australia More importance is given to the It is governed by the law of the


principle of Locus Regit Actum, ante nuptial domicile of both the
but still it also follows the parties, but it is again subject to
principle of Lex Loci personal laws of Australia.
Celebrationis.

China The principle of Lex Loci The principle of Lex Loci


Celebrationis is followed, and the Celebrationis is followed.
principle of Locus Regit Actum is
not given must of importance.

Scotland The principle of Lex Loci Choice of law rules, in this regard,
Celebrationis is followed without are undeveloped and unclear, but
any deviation. still on the face of it, it is governed
by the law of the ante nuptial
domicile of both the parties.

India The position is not clear but still It is governed by the law of the
on the face of it the principle of ante nuptial domicile of both the
Lex Loci Celebrationis is parties, but personal law of the
followed. parties to the marriage is also given
equal weightage.

V. Hague Convention: A Workable Solution or a Myth in itself


69
Hague Convention on the Celebration and Recognition of the Validity of Marriage to a
larger extent solves the problem of conflict of laws, and brings forth the law which is to

69Available at: http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=88 (last visited on April 30,


2010).
284 Validity of Marriage and Conflict of Laws [Vol. 1:2

be applied in cases of disputes concerning the validity of marriage on the basis of formal
70
requirements of marriage. The Hague Convention in its article 2 quite clearly recognizes
the principle of Lexi Loci Celebrationis, which will determine the formal validity of
marriages in Private International Law.
Further, it also removes the ambiguity on the point that whether a state can deny to enforce
and recognize a marriage contracted outside on the ground of being opposed to its public
71 72
policy, article 5 and Article 14 quite clearly lays down that a state, party to this
convention, may refuse to enforce and recognize a marriage if it is opposed to public
policy of that state.
 But one of the limitation of this convention is that it does not contain any provision
on essential validity of marriage, which seems to be the most ambiguous point in
Private International Law in relation to validity of marriages, which seriously
undermines the importance of this convention, as its position with regard to formal
validity is more or less same in almost all countries, with certain exceptions, but in
case of essential or material validity of marriage it is very unclear and
underdeveloped.
 Another limitation to this convention is the number of parties to it, which are only
73
three in number. Since a Conventions’ credibility and applicability can be judged
only on the basis of number of countries party to it, thus, in the case of Hague
Convention, less number of parties seriously undervalues the applicability and
enforceability of this Convention.

70
Article 2 - The formal requirements for marriages shall be governed by the law of the State of celebration.

71 Article 5 - The application of a foreign law declared applicable by this Chapter may be refused only if
such application is manifestly incompatible with the public policy (“ordre public”) of the State of celebration.
72 Article 14 - A Contracting State may refuse to recognise the validity of a marriage where such recognition
is manifestly incompatible with its public policy (“ordre public”).
73 Uptill 2009 there were only three parties.

284
2010] ILI Law Review 285

VI. Solutions and Recommendations

Since we can find out that both the principle of Lexi Loci Celebrationis and Lexi Domicilii,
have let to various problems, in almost all the countries, and even the Hague Convention
has not been able to come up with a workable solution which can solve all the issues,
which generally crop up while solving matters relating to validity of marriage. These are
various some of the suggestions which may help the countries to come with a more
effective solution to all the problems:-
 Like the Chinese law there should be not such distinction between formal and
essential or material validity of marriage, and both of them should be governed by
one single principle of conflict of law rules i.e. Lexi Loci Celebrationis. This step
would certainly reduce the ambiguity in law and it would make it simpler to apply
and to be understood by the common man, because every man and women, in
every country, should know the legal outcomes and challenges of his/her marriage.

 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.