Conflict of marriage laws

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Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.

Contents

The choice of law

The standard choice of law rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved:

Status and capacity

Status and capacity are defined by the personal laws of the parties, namely:

The personal laws will usually define status in rem so that it is recognised wherever the individual may travel subject only to significant public policy limits. Hence, for example, as an aspect of parens patriae , a state will define the age at which a person may marry. If such a limitation could simply be evaded by the young person traveling abroad on a holiday to a country with a lower age limit, this would clearly breach the policy of the "parental" state. The same principle would apply to an adult who wished to create a polygamous marriage or to evade a restriction on consanguinity. In Family Law as opposed to the Law of Contract, there is also a strong case for legal capacity to be universally enforced to limit to ability of individuals to evade normally mandatory rules. The claims of the lex loci celebrationis to apply are weak given that the significance of the location may be no more than the convenience of their laws to those wishing to marry.

Validity of the marriage

  1. The form of the marriage is governed by the lex loci celebrationis or the law of the place where the marriage was celebrated or occurred, and is usually considered definitive on whether the ceremony or legal recognition has been effective to create the relationship of marriage and marital rights (see nullity).
  2. The validity of the marriage is governed by the capacity of the parties to marry each other. Capacity to become a spouse is usually governed by the domicile of the parties. Thus for example, a 13-year-old does not have the capacity to marry in England, but does have that capacity in Nigeria (Northern Muslim Community [1] ). Likewise, in Canada no person can be "sanctioned" to have multiple spouses.

Lex fori

The lex fori, or proper jurisdiction to adjudicate legal disputes, will usually be the state where the spouses have sought to make their matrimonial home. This state will usually have a clear and direct interest in the applications of its policies to regulate the nature of relationships permitted to confer the status of husband and wife within their territorial boundaries. It may also attempt to regulate the behavior of those who wish to cohabit within their territory although this may contravene privacy rights.

Custom

In many states, culturally separate communities have retained their own traditions. A developing modern state had to determine whether it should recognize such traditions as it was establishing a centralized system of law. In South Africa, for example, the Recognition of Customary Marriages Act, 1998 retrospectively recognizes as valid all customary marriages so long as they are registered. Further, s2(3) of the Act provides that, if a person has entered into more than one customary law marriage, all valid marriages entered into before the commencement of the Act, are recognized. The Act similarly recognizes all customary marriages entered into after the commencement of the Act where the High Court approves a written contract regulating the future matrimonial property systems for marriages (both present and prospective spouses must be joined in the application). Such measure represented a major shift, because custom marriages were often potentially or actually polygamous as against public policy, and were not recognized under the new law.

Where a state has produced a formal body of law to control recognition, this will establish a general framework under which international recognition can be managed. Where there is no formal rule within the lex loci celebrationis, a forum court could hear expert evidence on whether the marriage would be accepted as effective (see the public policy of favor matrimonii which creates a rebuttable presumption in favor of the validity of any marriage) but it will be difficult for the parties to justify their failure to comply with the local laws that unambiguously would have created a valid marriage.

Common law

In some states, the legal acceptability of common law marriage is very limited. Some couples, whether because there are no local formalities relevant to them or because they have strongly held prejudices against compliance with the local forms, decide to create a marriage either by a simple public exchange of vows (per verbis inter praesentes), or by habit and repute. Because the need for conformity between states requires respect for the legal systems, it is now very difficult to identify states with no local system for the celebration and registration of marriages, and even more difficult for the courts of one state to justify a decision to support the prejudices of two of its citizens against the laws of the second state. However, other states permit informal marriages to acquire legal status and, where this happens, there is no reason in principle why international recognition should not follow.

Government registration

In some countries, the registration of a marriage means that it cannot later be declared invalid, since it has been accepted by the government. In Taiwan, which follows a variation of the Napoleonic Code (received by way of Japan), the presumption is that each country maintains a central registry of its citizens, including their marital status. If a Taiwan citizen marries in another country, however, this information may not find its way into the records. Many thousands of ROC soldiers who came to Taiwan in 1949 left behind wives in mainland China, but married local Taiwanese women. Since the two polities did not share records, the result was a pattern of legally recognized second marriages, despite the ban on polygamy by both sides of the Taiwan Strait. Today, foreigners wishing to marry Taiwan citizens must present letters from their countries' representative offices testifying that they are not already married. (Of course a determined bigamist might marry in some third country.) In the case of countries which lack centralized family records (such as the USA), a notarized affidavit is accepted.

The age of marriage

Different minimum age requirements also can lead to problems in mutual recognition of marriages. A marriage of young children is in some countries deemed to be against the public order, minimum ages for recognition are sometimes set (which may vary from the minimum ages for marriage itself). For example, in the United Kingdom, the Immigration Rules 1986 were introduced to bar persons under the age of 16 from entering the UK in reliance upon their status as a spouse. Nevertheless, for other purposes, such marriages will be recognized as valid so long as the parties had the relevant capacity under their personal laws and the ceremony was effective under the lex loci celebrationis to create a valid marriage.

In Western cultures, other than the age of consent, the issue of consent is also considered of fundamental importance and, if it is not freely given, it can prevent a valid marriage from ever coming into existence: see nullity. In Islamic law, a nikah contract is not valid if the parties do not consent, although there are differences in juristic opinion about exactly how the consent can be manifested. This supposed lack of clarity has led some Western cultures to question the general morality of "arranged marriages", often stigmatizing the system as being open to abuse and sometimes leading to forced marriages. In the English case of Szechter v Szechter, Sir Jocelyn Simon P. said that for duress to vitiate a valid marriage, it must be proved that:

The test requiring an immediate danger never matched the practical realities facing individuals where the consequences of a refusal to marry might not be immediate, but nevertheless serious. In Hirani v Hirani (1982) 4 FLR 332, the Court of Appeal considered the case of a nineteen-year-old Hindu woman who was dating a Muslim man. Her parents told the petitioner that unless she married a Hindu of their choosing, she would be ostracized socially from her family and left to fend for herself. Under the circumstances, the Court agreed that the petitioner had acted without full consent in marrying her parents' choice of husband. Thus, it is for the courts of all countries to strike a balance between well-intentioned parental authority to arrange marriages in the face of a reluctant child, and unreasonable threats that would overbear the will of any reasonable person, while maintaining the trust of local communities whose cultures have included arranged marriages for centuries. As to transnational recognition, it will be difficult to disturb the validity of the marriage if no complaint of coercion was made around the time the ceremony was performed in the lex loci celebrationis or immediately the parties entered the state where proceedings were commenced. It would be more usual to use the local divorce system to terminate the relationship.

Consanguinity

In Christian cultures, the Biblical proscriptions contained in Leviticus 18:6–18 are used as the basis for restricting marriage between persons who are deemed to be too closely related to each other. More generally, the restrictions fall into two classes (and based on Old Testament laws):

Several exceptions have been described for various Biblical figures, incestuous relationships such as Abraham and Sarah, [2] Nachor and Melcha, [3] Lot and his Daughters, [4] and Amram and Jochebed. [5]

The limitations based on consanguinity derive from a policy of practical eugenics and reflect the increased possibility that such marriages will produce children with a genetic defect due to the limitations on their combined gene pool. The limitations based on affinity, by contrast, are predominantly legal and social in origin. The rules relating to affinity reflect the need to minimise the prospects of familial jealousies and dysfunction by preventing the intermarriage of people already related by marriage. Difficult questions arise on whether an adopted child may marry his or her adoptive parents, or the natural children of the adoptive parents. No matter what legislative decisions are taken, there will always be citizens who wish to evade the application of the law. There will be no problem if they relocate and establish a matrimonial home in a state that allows their marriage. But any attempt to evade such laws by going through a ceremony in a state that permits the marriage and then returning to the original state (which will usually be their state of domicile, nationality or habitual residence) will fail, and may even expose the couple to the risk of prosecution for incest or an equivalent offense.

Polygamy

Polygamy may be polygyny (one man having more than one wife at the same time) or polyandry (one woman having more than one husband at the same time) and it has been practiced sparsely throughout history in almost all cultures and sanctioned by various religions where it was considered necessary to meet population or economic needs. In some economically poor areas where infant mortality is high but children are a vital source of labor to maintain the earning capacity of the family, polygamy may provide more children. States which prohibit polygamous marriages under national law often also criminalize bigamy. Some countries, such as Canada, have made polygamy an offense under the Criminal Code. Under section 293(a) of the Canadian Criminal Code, everyone who enters into any form of polygamy or any "conjugal union with more than one person at a time" is guilty of an offense, and under s. 293(b), there is a separate offense for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage". [6]

Other states refer to the current religious practices within their territories as the test for legal acceptability: for example, the Marriage Law 1974 (no. 1/74) in Indonesia does not prohibit polygamy for those religions that allow it (i.e. Islam, Hinduism, Buddhism), but permits it with the consent of the existing wife or wives if:

The converse is to be found in the halakhah and the Talmud where the general principle is that, "a woman cannot be the wife of two [men]" (Kid. 7a and Rashi). For a wife, the term kiddushin implies her exclusive dedication to her husband and there can be no kiddushin between her and another man while the first kiddushin subsists. Any purported marriage to another man is thus formally invalid but, nevertheless, requires a get to terminate it. A married man may celebrate a second marriage (and any others) unless he has specifically undertaken to his first wife, e.g., in the ketubbah, not to do so, or monogamy is the local custom. Thus, Ashkenazic Jews who live in Christian nations accepted a takkanah (a rabbinic law not deriving from the Talmud) banning polygamy in c. 1000 CE, while Sephardic Jews who live in Islamic societies have not followed this law.

The vast majority of Muslim majority sovereign states recognize polygamous marriages: these states span from West Africa to Southeast Asia, with the exceptions of Turkey, Tunisia, Albania, Kosovo and Central Asian countries. [7] [8] [9] [10]

In India, the Hindu Marriage Act, 1955 bans polygamous marriages, but polygamy is still legal for Muslims in India.

Actually polygamous

At the time a secular court considers the validity of this marriage, there are already multiple spouses. In English law, for example, §2 Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abode with the result that any application from such a wife has to be considered in accordance with paragraphs 278 to 280 of the Immigration Rules, which contain provisions to restrict settlement in most cases to one wife. But, for less controversial purposes, most states are willing to recognise actually polygamous marriages as valid so long as the parties had the capacity to enter into such relationships and the ceremonies were effective under the lex loci celebrationis.

Same-sex marriage

In a Chinese conception of marriage, a marriage is defined as being a relationship in which unions of various surnames are established in order to increase the lines of succession and property values. [11]

The first law providing for marriage of people of the same sex in modern times was enacted in 2001 in the Netherlands. As of 2022, same-sex marriage is legally recognized (nationwide or in some parts) in the following countries: Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, Netherlands, [nb 1] New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States [nb 2] and Uruguay. Polls show rising support for legally recognizing same-sex marriage in most of the Americas and Europe. Israel [12] recognizes same-sex marriages abroad but does not allow same-sex marriages to be performed within its borders. In several countries worldwide a same-sex couple can be legally partnered in a civil union, domestic partnership or registered partnership. Couples in these unions or partnerships are afforded rights and obligations similar to, but not identical to, those of a married couple.

On the issue of transsexualism, the European Court of Human Rights in Goodwin v UK and I v UK (July 2002) concluded that there is no justification for barring a transsexual from enjoying the right to marry. In Bellinger v Bellinger [2003] UKHL 21, (2003) Times, 11 April the English courts held that the non-recognition of change of gender for the purposes of marriage in s 11(c) of the Matrimonial Causes Act 1973 was incompatible with Convention rights. But the House of Lords did not consider that the issues raised in the case were suitable for determination by courts and left the matter for Parliament, which has now enacted the Gender Recognition Act 2004 and matches the majority of European states in permitting marriage in the adoptive gender role. The same rights may be allowed in Australia, Canada, and some other states.

See also

Notes

  1. ↑ The Netherlands proper. Same-sex marriages performed there are recognized in Aruba, Curaçao and Sint Maarten
  2. ↑ 50 states, the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, the United States Virgin Islands and some tribal jurisdictions. Some tribal jurisdictions do not recognize same-sex marriage. In the United States, Congress (not the federal courts) has legal authority over Indian country. Thus, unless Congress passes a law regarding same-sex marriage for Indian tribes, federally recognized American Indian tribes have the legal right to form their own marriage laws.

Related Research Articles

<span class="mw-page-title-main">Marriage</span> Culturally recognised union between people

Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws. It is nearly a cultural universal, but the definition of marriage varies between cultures and religions, and over time. Typically, it is an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. A marriage ceremony is called a wedding.

<span class="mw-page-title-main">Bigamy</span> Act of having two concurrent marriages

In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. In the case of a person in the process of divorcing their spouse, that person is taken to be legally married until such time as the divorce becomes final or absolute under the law of the relevant jurisdiction. Bigamy laws do not apply to couples in a de facto or cohabitation relationship, or that enter such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws.

Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law.

In conflict of laws, the term lex loci is a shorthand version of the choice of law rules that determine the lex causae.

In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:

<span class="mw-page-title-main">Marriage law</span> Overview of marriage law worldwide

Marriage law is the legal requirements, an aspect of family law, that determine the validity of a marriage, and which vary considerably among countries.

The type, functions, and characteristics of marriage vary from culture to culture, and can change over time. In general there are two types: civil marriage and religious marriage, and typically marriages employ a combination of both. Marriages between people of differing religions are called interfaith marriages, while marital conversion, a more controversial concept than interfaith marriage, refers to the religious conversion of one partner to the other's religion for sake of satisfying a religious requirement.

<span class="mw-page-title-main">Same-sex marriage law in the United States by state</span>

This article summarizes the same-sex marriage laws of states in the United States. Via the case Obergefell v. Hodges on June 26, 2015, the Supreme Court of the United States legalized same-sex marriage in a decision that applies nationwide, with the exception of American Samoa and sovereign tribal nations.

Marriage in the United States is a legal, social, and religious institution. The marriage age in the United States is set by each state and territory, either by statute or the common law applies. An individual may marry in the United States as of right, without parental consent or other authorisation, on reaching 18 years of age in all states except in Nebraska, where the general marriage age is 19, and Mississippi, where the general marriage age is 21. In Puerto Rico the general marriage age is also 21. In all these jurisdictions, these are also the ages of majority. In Alabama, however, the age of majority is 19, while the general marriage age is 18. Most states also set a lower age at which underage persons are able to marry with parental and/or judicial consent. Marriages where one partner is less than 18 years of age are commonly referred to as child or underage marriages.

Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact is a form of irregular marriage that survives only in seven U.S. states and the District of Columbia along with some provisions of military law; plus two other states that recognize domestic common law marriage after the fact for limited purposes.

Akin to Uganda, Republic of the Congo and the Central African Republic, Zambia is one of the few Christian nations that allows polygamous unions to be legally formed. Under Zambian law, polygamous unions may be contracted and they have been reported to be extremely widespread in the nation. Similar to most countries that provide polygamy as a form of marriage, the first wife must consent to the practice of polygamy before she marries her husband. If she declines, her husband will not be allowed to marry another woman while married to his current wife. According to a 2003 survey, 16% of marriages in Zambia are polygamous. While frequently more common in rural areas, the practice can also be found in more urban settings.

<span class="mw-page-title-main">Polygamy in Nigeria</span>

Under civil law, Nigeria does not recognize polygamous unions. However, 12 out of the 36 Nigerian states recognize polygamous marriages as being equivalent to monogamous marriages. All twelve states are governed by Sharia law. The states, which are all northern, include the states of Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara which allows for a man to take more than one wife.

Polygamy is legal under certain circumstances in South Africa. All polygamous marriages entered into in accordance with the provisions of the Recognition of Customary Marriages Act are legal. The husband in an existing customary marriage wishing to marry a second wife must apply to a competent court for such a marriage to be legal. Hence former President Jacob Zuma currently has four legally-recognised wives. The court considers the interests of all parties to the marriage and may add whatever conditions the court deems just for the polygamous marriage to be valid under customary law. Polygamous marriages are not allowed under the Marriage Act and the Civil Unions Act.

The legal status of polygamy varies widely around the world. Polygyny is legal in 58 out of nearly 200 sovereign states, the vast majority of them being Muslim-majority countries. Some countries that permit polygamy have restrictions, such as requiring the first wife to give her consent.

Polygamy is not legally recognised in Australia. Legally recognised polygamous marriages may not be performed in Australia, and a person who marries another person, knowing that the previous marriage is still subsisting, commits an offence of bigamy under section 94 of the Marriage Act 1961, which carries a maximum penalty of 5 years imprisonment. However, the offence of bigamy only applies to attempts to contract a legally recognised marriage; it does not apply to polygamous marriages where there is no attempt to gain recognition for the marriage under Australian law. Whether or not either or both partners were aware of the previous subsisting marriage, the second marriage is void. Foreign polygamous marriages are not recognized in Australia. However, a foreign marriage that is not polygamous but could potentially become polygamous at a later date under the law of the country where the marriage took place is recognized in Australia while any subsequent polygamous marriage is not. While under Australian law a person can be in at most one legally valid marriage at a time, Australian law does recognise that a person can be in multiple de facto relationships concurrently, and as such entitled to the legal rights extended to members of de facto relationships.

Polygamy is the practice of having more than one spouse; while prohibited under Zimbabwean civil law, polygamous marriages may be performed under the country's customary law. Less than one-fifth of the country's population are engaged in polygamy.

In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.

South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."

"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."

<span class="mw-page-title-main">Polygamy in New Zealand</span>

Polygamous marriages may not be performed in New Zealand. A married person who enters into another marriage in New Zealand is guilty of the crime of bigamy. Similar rules apply for civil unions, which have been legal in New Zealand since 2005. However, polygamous marriages legally performed in another country have limited recognition in New Zealand law, provided that no person involved was living in New Zealand at the time of the union.

References

  1. ↑ The Global Partnership to End Child Marriage (“Girls Not Brides“) (26 July 2013). "CONTROVERSY IN NIGERIA OVER MINIMUM AGE OF MARRIAGE". GIRLS NOT BRIDES. Retrieved 10 March 2020.
  2. ↑ "Bible Gateway passage: Genesis 20:11-12 - New International Version". Bible Gateway. Retrieved 19 February 2018.
  3. ↑ "Bible Gateway passage: Genesis 11:26-29 - New International Version". Bible Gateway. Retrieved 19 February 2018.
  4. ↑ "Bible Gateway passage: Genesis 19:31-36 - New International Version". Bible Gateway. Retrieved 19 February 2018.
  5. ↑ "Bible Gateway passage: Exodus 6:19-20 - New International Version". Bible Gateway. Retrieved 19 February 2018.
  6. ↑ Criminal Code, RSC 1985, c C-46, s 293.
  7. ↑ Nurmila, Nina (10 June 2009). Women, Islam and Everyday Life: Renegotiating Polygamy in Indonesia. Routledge. ISBN   9781134033706 – via Google Books.
  8. ↑ Maike Voorhoeve (31 January 2013). "Tunisia: Protecting Ben Ali's Feminist Legacy". Think Africa Press. Archived from the original on 23 January 2015. Retrieved 23 January 2015.
  9. ↑ Kudat, Ay?e; Peabody, Stan; Keyder, Ça?lar (29 December 2017). Social Assessment and Agricultural Reform in Central Asia and Turkey. World Bank Publications. ISBN   9780821346785 – via Google Books.
  10. ↑ "LES EXPERTS DU CEDAW S'INQUIÈTENT DE LA PERSISTANCE DE STÉRÉOTYPES SEXISTES ET DE LA SITUATION DES MINORITÉS EN SERBIE". United Nations. 16 May 2007. Retrieved 3 February 2016.
  11. ↑ Su, Sing Ging (2008). The Chinese Family System. BiblioBazaar. p. 55. ISBN   978-0-554-50635-7.
  12. ↑ Israel's Supreme Court approves same-sex marriages performed abroad Archived 30 September 2011 at the Wayback Machine Israel Insider, 21 November 2006
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