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THE VALIDITY OF MARRIAGE IN DOMICILE LAW (By-Vinayak Tiwari)
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Article Details
THE
VALIDITY OF MARRIAGE IN DOMICILE LAW
Authored By-Vinayak
Tiwari
NMIMS Kirit P. Mehta
School of Law, Mumbai
Introduction
People who are subject to personal
laws in jurisdictions where personal laws are applied may exploit differences
between the law of their domicile and the law of a jurisdiction other than
their domicile. As a result, property located in their domicile may eventually
pass according to a view of the law not prevailing in their domicile, and
immovable property located in a jurisdiction other than their domicile may pass
according to the law obtaining in the jurisdiction in which they are subject to
personal laws.[1] This
contradictory stance initially seems to run afoul of established principles of
private international law. The criterion of domicile is used to link a person
with a certain legal system in regards to personal status and succession in all
countries throughout the world that adhere to the Common Law concept or
tradition.[2]
This is crucial in cases of conflict
of laws where it is uncertain whether a resident or national of another country
has the legal ability to marry or when it must be decided who will inherit the
deceased person's personal property. The idea of “domicile” is one that either
falls under the purview of private international law or the area of conflict of
laws. A basic legal notion known as “domicile” refers to the nation you
perceive to be your “roots” or your primary residence. A person's or an
individual's domicile often applies to the entire nation, not just a portion of
it. No person or individual may be without a domicile, according to common law.[3] A person
who owns several homes is likewise prohibited from living in more than one
place at once. Until a change is shown by the propositus on the balance of
probability, a domicile is deemed to remain the same. And it is clear from this
that the idea of residence in and of itself varies from country to country
according to the laws and values that are upheld there.
A person's place of residence, as a
legal document, plays a crucial part in their daily lives in the global
community. A person who chooses their domicile is subject to several legal
repercussions and implications of the notion of domicile. It frequently
establishes (i) main jurisdiction for will and estate administration; (ii)
primary authority to levy state income and death taxes; and (iii) judicial
jurisdiction over an individual.[4]
Additionally, a person’s domicile affects where and how they can exercise their
legal rights and privileges, such as voting. In general, the term “Nationality”
refers to a certain status of membership that is granted to a person by a
nation state. According to Fenwick, it is a bond that binds a person to a
certain state, establishes his membership in that state, entitles him to that
state's protection, and commits him to the obligations imposed by its laws.[5] What makes
nationality significant? Additionally, a person's nationality grants him or her
worldwide access to certain rights. Some advantages of having a nationality
include devotion to a particular nation; the nation's right to refuse to
extradite its own citizens in cases of disagreement; the ability to ascertain
an individual's enemy character through a state; the state's authority over all
of its citizens; etc.
Domicile, as we understand it, is a
connection between a person and their place of abode, which is also seen as
their permanent home.[6] Even
though the person has left home, domicile may still exist. On the other hand,
nationality is a connection between a person and a nation (to which a person
owes his allegiance to). A person's nationality often entails certain duties on
the part of the individual as well as some protection from the state.
Understanding Domicile And Its
Types
DOMICILE OF ORIGIN
No person may stay or exist without a
domicile, which is one of the fundamental foundations that underpins the law of
domicile. The law of domicile grants each person a domicile at birth in order
to put this idea into practise. The term "domicile" or
"origin" refers to this. The person's natal country need not
necessarily be their domicile of origin. In the event of a legitimate kid, the
domicile of the individual is often granted, and in the case of an
illegitimate child, the domicile of
the mother. The retention of a domicile of origin is fundamentally important
unless there is conclusive proof that another domicile has been obtained.[7]
Domicile Of
Choice
The principle of private
international law that an independent person may change his or her domicile is
well-established. In this context, “Independent” refers to a person who is 16
years of age or older. Domicile of choice is what is meant here. Any other
outlying area can serve as your temporary domicile for a while. In order to
create a domicile of choice, a person must sever most or all links to his
domicile of origin and move to the area where he wants to set up residence with
the obvious purpose of residing there permanently. The burden of proof is on
the individual seeking to create a domicile of choice in order to show that the
domicile of origin has been moved as a result. In order to acquire the domicile
of one's choice, it is essential he establishes a state of residence in that
nation, accompanied by a mental state to live indefinitely in that place.
Domicile Of
Dependents
Dependents include children under the
age of sixteen, married women, and those with mental disabilities like lunatics
and morons. Dependents can also be classified as persons or as people who are
unable to choose a domicile under the law of domicile, nevertheless. As a
result, it is generally accepted that the dependent person takes over the other
person's domicile of reliance. If the person on whom the dependent depends
moves, the dependent's residence may also shift. According to private
international law, the domicile of dependency is controlled by English law
rather than the legislation of the countries whose residence the person may
soon acquire or whose residence they have already held.
As a connecting factor in a conflict
of laws, domicile is particularly significant. It is crucial to tax laws,
marital laws, and property laws, and it is highly helpful when there are
disagreements. It establishes the contracting parties' authority to enter into
the agreement
under certain legal theories.
Domicile of origin is unbreakable. Even if an individual or a person acquires a
domicile of choice, the domicile of origin will always be available to fill in
any gaps if the individual subsequently decides to give up the domicile of
choice. Every person has an origin residence at birth, and it typically remains
for life (if only in abeyance). A new domicile of choice is to be taken over or
the domicile of origin automatically re-enters the picture when a person or an
individual abandons the domicile of choice by ceasing to dwell in that nation.
Therefore, it is crucial to comprehend the notion of domicile in private
international law, as well as in all other areas of law.
Position Of Indian Law On Domicile
The Constitution of India doesn’t
explicitly define what a domicile is, but Article 5 enumerates the criteria to
be a citizen, and it mentions that one must have a domicile in India, besides
any other of the subsequent criteria defined under clauses (a) to (c).
Specifically, clause (c) mentions about one having to fulfil the need of being
an ordinary resident for the past five years. This provision was made keeping
in mind the partition of India, which resulted in the formation of two new
countries, namely Pakistan and India.
There is clear distinction clearly discernible from reading of this provision
that there lies a distinction between citizenship and domicile, and while
domicile is a determining factor, it is not the sole factor. As was held in Inland Revenue Commrs. Bullock[8], while
domicile refers to a person’s civil rights, citizenship relates to one’s
political status. Unlike the legal system in the US, in India there is no
recognition accorded to dual citizenship. [9]
In the landmark case of DP Joshi v. Union of India[10]
it was held that since states have the prerogative to decide on the applicable
legal systems for personal laws, regional domicile isn’t unconstitutional and
was therefore recognized and authorized by the court. However, subsequently, in
the historic case of Pradeep Jain v. Union of India,[11]
Justice Bhagwati held that personal laws being under the Concurrent List, on
which both State and Centre can make laws- and the Centre’s mandate will
prevail over that of the State, in case of a clash between the two- it cannot
be compared
with the legal system in the US,
wherein personal laws don’t form part of the legislative powers of the Congress
and therefore remains the forte of the state legislatures. Thus, the idea of
regional domicile has no role in India anymore and the only recognized, legal
domicile is related to the nation as a whole.
The Theory Of Dual Domicile And Its
Shortcomings
One of the critical aspects of
domicile, as has been noted above, is to find out the applicable laws on the
individual whose rights and privileges are under question. To arrive at the
legal system to which one should be subjected, his or her identity ought to be
ascertained. This is where one's domicile comes to the rescue. To elaborate the
case for the significance of domicile, we are dealing with the validity of
marriage and how domicile plays a major role in securing its validity before
the court of law. In English law, marriage is a consensual union of a man and a
woman, to the exclusion of others.[12]
This idea of marriage being exclusive between two people is the foundation of
the prohibition placed on polygamous marriages.
Earlier the capacity to marry someone
would be governed by lex loci
celebrationis. The Hague Conference on Private International Law, which
drafted Hague Convention on the Celebration and Recognition of the Validity of
Marriages, 1978 made the validity of the marriage between two people contingent
on whether the parties adhered to the applicable laws in the place of
celebrations. Although Australia adopted the Convention, the other commonwealth
countries didn’t adopt the Convention. The leading case in England which deals
with the requirements for validity of a marriage is De Barros v. De Barros[13]. Here,
the question was whether a marriage between two cousins, domiciled in Portugal,
was valid in England since the same was solemnised in England. The court
answered in the negative, since the capacity to marry would depend upon the law
laid down in the domicile of the individual, and here Portuguese law didn’t allow
marriages between such relations. This is the antenuptial domicile rule, or as
also known as, the double-domicile theory. Critics have argued that the
application of double domicile theory is unfair due to its mechanical approach
and its sheer disregard of the
autonomy of the individuals to take advantage of a legal system that is in sync
with their choice.The 1985's Law Commission Working Papers on Domicile and the
Choice of Law Rules, though laudable for its attempt to reform the laws
pertaining to marriage and domicile, recommended against discarding the dual
domicile theory, and showed scant sensitivity for a more flexible and just
legal system.[14] It
ignores the reality that by applying this theory, one's choice of personal
matters becomes conditional on the country he or she is domiciled in. This is
the reason why Sir George Baker P had said that courts should avoid applying
the “tyranny of domicile” test to
decide on the validity of marriage.[15]
The same view was shared by Lincoln J, Ackner LJ, and Sir David Cairns in
Lawrence v. Lawrence[16]. If we
follow the judicial precedents, it is clear that courts take the approach which
would avoid taking the route of dual domicile theory. For example, in the case
of Radwan v. Radwan[17], the
court applied the intended matrimonial home by reasoning that in matters
involving polygamous marriages the theory of dual domicile doesn't apply.
Similarly, in Perrini v. Perrini the court, instead of addressing the question
of validity of a remarriage, reframed the question to make it one about the
validity of a decree of nullity by a foreign court. In the landmark case of
Lawrence v. Lawrence, the issue before the court was whether the marriage
between a couple was valid, after the woman's divorce with her previous
husband. There can be two questions for the court to answer- one answering the
validity of the divorce, and the other adjudicating upon the capacity of the
couple to get married. Had the second question been framed by the court, the
answer would have been negative owing to the prevalence of the menace of dual
domicile theory; however, since the court decided the matter by making the
question on validity of divorce as germane to the case, the parties were
awarded a just order and the divorce of the lady with her previous husband was
recognized. In India also, the position of law on the question of one's
capacity to get married is the same as it is applicable in England. Thus, if
two individuals of differing domiciles get married to each other, the court
will test the validity of the marriage based on the dual domicile theory and
enquire into the capacities of the parties to the marriage based on the law of
their respective domicile.
In the case of Bhagwan Ghamshamdas v.
Charlotte Zingg[18] an Indian
resident married a Sri Lankan citizen within one year of the former's divorce
under Hindu Marriage Act, 1955. The court held that since the Indian man didn't
have the capacity to marry as a result of an express provision, under Section
15, prohibiting remarriage within one year of divorce, the marriage is not
valid. Although the observation on the bar on remarriage within a span of one
year from the date of divorce is bad in law, the path taken by the court- to
adjudicate the question of validity based on the law of the individual's
domicile is good in law.
Conclusion
The role of private international law
in todays’ time and age of globalization and free movement of people is
undoubtedly preeminent. The exchange of trade and services, cross-cultural
ties, and other means of global connection has eviscerated the internal
boundaries among the Nations and has made the whole world a global village.
Going forward the idea of home, or residence would be more complex owing to the
endless opportunities at people’s disposal. With such freedom and boundless
possibilities, it becomes essential to constantly evolve the law that swears to
protect the rights and privileges of people.
For a smooth growth of the current
trend of free movement, the robustness of one’s legal system plays a critical
role in protecting people’s rights. Since such rights arise from one’s status
as a civil person, the question on domicile gains a renewed vigour. Marriage
being a sensitive and personal matter, the laws governing the capacities of
parties do need a revisit keeping the current conditions in mind. When two
different countries provide diverging qualifications for acquiring the capacity
to get married, and the parties are respecting the laws of the nation which
allows such union of two people no judicial entity in that country should
deprive the parties from taking advantage of liberal marital laws. In the times
of which people can shift the base of their company to a tax haven and enjoy
lower rates of taxes, it’s unfair to deny people the right to choose their life
partners solely because the laws of one of the two countries doesn’t
countenance such union.
We would find valuable wisdom in the
words of Brightman J, who, in the case of IRC v. Bullock[19],
noted that “What could be more logical
than to attribute to the husband-and-wife a personal law which corresponds with
the law of the place where they have decided
to set up their matrimonial home.” Thus, a more flexible approach which
intends to take into consideration the intention of the parties to a matrimony
as to what their intended home is, would serve as a more justified parameter
for deciding upon such issues. It is argued that such a test of intended matrimonial home would create
more uncertainty for the courts to conclude. However, it is submitted that
though the law should be simple and straightforward, but to iron the creases in
the law, one must not bend the rights of an individual. Complexity cannot be an
excuse to extirpate one’s liberty and rights.
Article Information
THE VALIDITY OF MARRIAGE IN DOMICILE LAW (By-Vinayak Tiwari)
Authors: Vinayak Tiwari
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/12
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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