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The writing a project has one of the most significant academic challenges I have ever faced. Any
attempt at any level can't be satisfactorily completed without the support and guidance of learned
people. Gratitude is a noble response of one’s soul to kindness or help generously rendered by
another and its acknowledgement is the duty and joyance. I am overwhelmed in all humbleness
and gratefulness to acknowledge our depth to all those who have helped us to put these ideas, well
above the level of simplicity and into something concrete effectively and moreover on time.
My first obligation, irredeemable by the verbal expression, is to our subject teacher Dr. P.P. Rao
who has given me his valuable help in myriad way from the start to the very end. He was always
there to show us the right track when we needed his help. He lent his valuable suggestions,
guidance and encouragement, 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 with the help of which I was able to perform this project work.
I would like to extend the thanks to my parents for their selfless encouragement and support given
to me at critical junctures during the making to this project.
Last but not the least, I would like to thank my friends who helped a lot in gathering different
information, collecting data and guiding each other from time to time in making this project.
Rohit Sinha
9th Semester
Date-
TABLE OF INDEX
I. INTRODUCTION........................................................................................................................6
A. POSITION IN ENGLAND..........................................................................................................9
B. POSITION IN COMMON LAW COUNTRIES.............................................................................10
I.POSITION IN
AUSTRALIA..................................................................................................10
II. POSITION IN
CANADA......................................................................................................10 IV.
CAPACITY TO
MARRY........................................................................................................10
V. CONSENT OF
PARTIES...........................................................................................................11
III. REMAINING
PROBLEMS...................................................................................................15
B. JURISDICTION......................................................................................................................15
C. JUDICIAL SEPARATION.........................................................................................................17
D. NULLITY OF MARRIAGE......................................................................................................17
X. CONCLUSION..........................................................................................................................
20
BIBLIOGRAPHY..............................................................................................................................22
B. 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.
C. 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.
1
(1868) L.R, 3 H.L, 55 at 82
2
Hyde v. Hyde, (1866) LR 1 P & D 130.
3
Under the Law Reform (Miscellaneous Provision) Act 1970, s. 1, an agreement to marry does not have
effect as a contract.
I. 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 laws.4
In English law, a marriage though a contract, is a 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 woman. In a celebrated (or notorious) case in 1866, Hyde v. Hyde5, it was held that a marriage
was voluntary union for life of one man with one woman to exclusion of others. This decision was
the foundation of the rule that polygamous marriages were not recognized in England.6 Even when
4
Cheshire & North, Private International Law, thirteenth edn, p. 741.
5
(1866) LR 1 P & D 130
6
Today the situation has been changed under this and now they are recognized for many purposes.
7
In India, among Hindus marriage has always been regarded as sacrament, whilst in Mohomedan
Law, it is a 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
7
Nachimson v. Nachimson [1930] P 217 (CA), a marriage in the USSR at a time when a unilateral
divorce was available to either party was recognized as a valid marriage in England.
8
Marriages celebrated according to Chinese, Japanese, Eskimo and Jewish rites were also recognized on
proof that such marriages were monogamous. Castels & Walkers, Canadian Conflict of Laws, sixth edn,
para 16.6
9
Art. 3 of the Hague Convention on the Celebration & Recognition of the Validity of Marriages, 1978.
10
Nullity (conflict), available at: http://en.wikipedia.org/wiki/Nullity(conflict) (last visited on April 20,2010).
11
Paras Diwan & Peeyushi Diwan, at 266.
A 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):14
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.15
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.16
12
Wang Hui, A Review of China’s Private International Law During the 30-year Period of Reform andOpening-Up
(May 2009) (ASLI Working Paper Series No. 002).
13
The Law Commission and The Scottish Law Commission, Private International Law Choice of law rulesin
Marriage, Law Com. No. 165 & Scot. Law Com. No. 105, 3 (July 01, 1987).
14
Dicey & Morris, Conflict of Law, thirteenth edn. P651.
15
Rule 67(1) of Common Law Rules
16
Ibid, Rule 67(2)
i. Position in Australia
a) Marriage by proxy will be recognized as valid if they are valid under the lex loci
celebrationis.21
17
Ibid, Rule 67(5)
18
(1877) 3 PD 1, p 5.
19
[1930] AC 79, p 83
20
Cristofaro v. Cristofaro (1948) VLR 163.
21
Supra, no. 10
22
Nygh v. Davies, Conflict of Law in Australia, seventh edn, para 24.14 23
23
Castel & Walkers, Canadian Conflict of Laws, sixth edn, para 16.2; Forbes v. Forbes (1912) 3 DLR
324.
24
Hunt v. Hunt 14 DLR (2d) 243
25
Re Howe v. Louis (1970) 14 DLR (3d) 49, cited in Dicey & Morris, Conflict of Law, thirteenth edn para
14-010.
26
Way v. Way [1949] All ER 959.
27
(2005) 255 D.L.R. (4th) 757 (BC)
28
Cheshire & North, Private International Law, seventh edn, p 276.
29
Cook, The Logic and Legal Bases of the Conflict of Laws (1942) p 448.
30
Lawrence v. Lawrence [1985] 1 All ER 506.
Davie, „The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English
31
Conflict of Laws’
32
Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.
33
Jaffey, Topics in Choice of Law (1996) pp 3-7.
i 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.” 34 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,35 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.
34
Supra no. 5.
35
Risk v. Risk [1950] 2 All ER 973.
36
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.
37
Matrimonial Causes Act 1973, Section 47(2).
38
Chaudhary v. Chaudhary, [1976] Fam 148 at 151.
39
Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15. 39Matrimonial Causes Act 1973,
Section 47(3).
40
Ibid, Section 1.
41
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.
42
Onobrauche v. Onobrauche (1978) 8 Fam Law 107
43
Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110
J. 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.47 These enactments were confined to proceeding by a wife.
They did not extend to cross-petition by a respondent husband.48 The exercise of the English Courts
44
Matrimonial Causes Act 1973 Section 1 (2) (b) 46
45
Poon v Tan (1973) 4 Family Law 161.
46
Quoraishi v. Quoraishi [1985] FLR 780 CA
47
Section 13, but now repealed.
48
Levett v. Levett and Smith [1957] P. 156
49
Family Proceeding Rules, 1991
50
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
51
De Reneville v. De Reneville, [1948] P. 100.
K. 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.
L. NULLITY OF MARRIAGE53
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 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
52
Zenelli v. Zenelli (1948) 64 T.L.R 556.
53
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
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.
54
Matrimonial Causes Act 1973, Section 11.
55
Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage (Scotland) Act
1977.
56
Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582.
57
The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23 60
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.
58
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 August 10 2015).
59
AIR 1966 Mys 100
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 three in
number.62 Since a Conventions’ credibility and applicability can be judged only on the basis of
60
(1959) ILR 1 Cal 4
61
Article 14 - A Contracting State may refuse to recognise the validity of a marriage where suchrecognition is
manifestly incompatible with its public policy (“ordre public”).
62
Uptill 2009 there were only three parties.
IX. 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.
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.
A 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.
M. ARTICLES
1. Rajat Joshi, Validity of Marriage And Conflict Of Laws, ILI Law Review, 2010.