LEX FORI AND LEX LOCI CELEBRATIONIS - ROLE PLAYED IN DETERMINING THE VALIDITY OF MARRIAGE BY - ARYAN TOMAR
LEX FORI AND LEX LOCI CELEBRATIONIS - ROLE PLAYED IN DETERMINING THE VALIDITY
OF
MARRIAGE
AUTHORED BY
- ARYAN TOMAR*
Abstract-
Each
nation has their respective sets of private international law rules. So, in the
age of growing legal interactions across borders the conflicting private
international rules poses a problem. The effort to reduce differences among
national legal systems is commonly referred to as "harmonization." Well,
if one talks about harmonization of procedural law the first principle that is
needed to be harmonized is the principle of lex Fori, because this is the
principle which forms the crux of any procedural aspect of any set of private
international law rules. This article first gives a brief introduction about
what is lex Fori Followed by its exceptions. Afterwards this article talks
about lex loci Celebrationis which is related to marriages that occur between
individuals of two different nations. The number of marriages possessing foreign elements is
increasing rapidly in today's globalized world where international movement of
people across nation states’ boundaries has gained significant momentum. In
order to conclude a legally valid marriage, many of the modern legal systems
stipulate that certain substantive and formal conditions shall be satisfied by
the parties to the marriage. However, the scope and meaning of these conditions
vary considerably from one legal system to the other. However, it is hard to
say that there is an international uniformity with regard to the application
and interpretation of the said rule. This article determines the validity of
marriage in private international law on 3 grounds namely the nature of
marriage, capacity of the parties to marry and ceremonies of the marriage.
Exceptions to the principle of lex loci celebrations are also elaborated
followed by case laws relating to the two principles that is lex fori and lex
loci celebrationis.
Keywords- Private International Law, Marriage
lex Fori
The
theory of lex Fori was first proposed by the German and French writers, Kahn[1]
and Bartin[2]
in the 1890s. it is a prevailing theory which has been adopted and implemented
by the English Courts as well. Each nation has their respective sets of private
international law rules. So, in the age of growing legal interactions across
borders the conflicting private international rules poses a problem. The effort
to reduce differences among national legal systems is commonly referred to as
"harmonization." Well, if one talks about harmonization of procedural
law the first principle that is needed to be harmonized is the principle of lex
Fori, because this is the principle which forms the crux of any procedural aspect
of any set of private international law rules.
The law of the forum, or lex fori theory, is a
method of addressing the problem of characterization. The notion of
characterization governs the issue of legal disagreement. The notion of
characterization enables a court to determine which law will apply in a given
situation. It will be difficult to apply the proper conflict of law rule until
and until the same is resolved.[3]
According to the idea, a particular issue should be
classified in accordance with both the applicable domestic laws and the foreign
norms of law in accordance with their nearest and closest domestic law.
If the components involved in a case are domestic,
the Court will apply domestic laws; nevertheless, when foreign components such
as domicile are involved, the Court must examine three primary factors:[4]
·
Whether the Court in question has the authority to
hear the matter.
·
The problems’ classification
·
In the issues so classified, the law to be applied is
a matter of choice.
Unless the parties
object or there is a foreign element involved, the Court that accepts
jurisdiction usually tries the matter in line with its own domestic laws.
According to the Court, it is in their best interests to have their own law
used because the forum’s law is regarded to be better under the better-law
method.[5]
Bartin’s argument in favor of the lex Fori
hypothesis is that judges and courts are oath-bound: “to the obligations of
their own legal system and no one else and can therefore only administer the
same.”
So that there is no misunderstanding as to which
forum’s laws should be followed, the choice of law should simply be the one
that leads the matters of the Court of jurisdiction.[6]
If the lex Fori does not include an equivalent law,
the Court must apply the rules of a similar law that exists in its
jurisdiction.
Exception to the lex Fori rule- Lex Causae
Judicial
procedure is the process by which the competent local authorities resolve
disputes between parties. Its object is twofold: (1) to regulate the exercise
of the jurisdiction by local authorities and (2) to end a legal dispute based
on substantive law. To accomplish these two objectives, there are rules of
procedure that deal with the exercise of jurisdiction and are regulated by lex
Fori, as discussed above, and rules of procedure related to the substantive law
that will be applied to the dispute. The second group of rules is not regulated
by lex Fori. Instead, it is governed by the law that is applied to the merits
of the dispute--lex causae.[7]
Thus,
if a suit is commenced in Country A against a defendant domiciled in Country B,
the law of Country A may have to be applied to all procedural acts that take
place in Country A's jurisdiction and the law of Country B to those acts--such
as service and the collection of evidence--that take place in Country B.
Therefore,
lex Fori is the technical term for when a country applies its own local law.
Whereas lex causae in conflict of laws, is the law chosen by the forum court
from the relevant legal systems when it judges an international or
interjurisdictional case
Lex loci Celebrationis
The lex loci Celebrationis is
the Latin term for "law of the place where the marriage is
celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element
where a difference in result will occur depending on which laws are applied.[8]
Explanation
When a case comes before a court and all
the main features of the case are local, the court will apply
the lex Fori, the prevailing municipal law, to decide the
case. But if there are "foreign" elements to the case, the forum
court may be obliged under the conflict of laws system to:
1. consider
whether the forum court has jurisdiction to hear the case;
2. characterise
the issues, i.e., allocate the factual basis of the case to its relevant legal
classes; and
3. apply the
choice of law rules to decide which law is to be applied to each class.
The lex loci Celebrationis is a
choice of law rule applied to cases testing the validity of a marriage. For
example, suppose that a person domiciled in Scotland and a person habitually
resident in France, both being of the Islamic faith, go through an Islamic
marriage ceremony in Pakistan where their respective families originated. This
ceremony is not registered with the Pakistani authorities but they initially
establish a matrimonial home in Karachi. After a year, they return to Europe.
For immigration and other purposes, whether they are now husband and wife would
be referred to the law of Pakistan because that is the most immediately
relevant law by which to precisely decide the nature of the ceremony they went
through and the effect of failing to register it. If the ceremony was in fact
sufficient to create a valid marriage under Pakistani law and there are no
public policy issues raised under their personal laws of lex Domicilii or
habitual residence, and under the lex Fori, they will be treated a validly
married for all purposes, i.e., it will be an in-rem outcome.
VALIDITY OF
MARRIAGE IN PRIVATE
INTERNATIONAL
LAW
Introduction
Capacity to marry is a significant
factor contributing towards the validity of marriage. There cannot be any valid
marriage unless each party to the marriage is capable to marry. The capacity of
parties to the marriage differs from one legal system to another legal system
and the nature of marriage differs from culture to culture and country to
country.[9]
The challenge is to ascertain
validity of marriage in a manner that can be universally accepted. In the
present situation following criteria are to be taken into consideration to
ascertain validity of marriage, these are-
i)
The nature of marriage involves two aspects. These are (i) whether the marriage is
monogamous or polygamous (potential or otherwise) and; (ii) what does make a
marriage sacrament or contract.
ii)
Capacity of the parties to marry &
iii)
Ceremonies of the marriage.
The Nature of Marriage
The nature of marriage is ascertained
by the marriage ceremonies according to the law of the place where the marriage
has been celebrated. In many countries Polygamy is legally recognized as valid
form of marriage while in some other countries it is practically impossible to
enter into a polygamous form of union. To some, polygamous form of union is
against public morality. A number of legal systems have included ‘Bigamy’ as a
crime in its Criminal Code in order to discourage polygamous form of marriage.[10]
Bigamy has made punishable in both
common law countries & Civil law countries. However, polygamous or
potentially polygamous marriage is recognized as valid in countries like United
Kingdom or Germany if,
i)
Such marriage has been taken place in any country
where this particular form of marriage is legalized, &
ii)
During the time when marriage took place the parties
to the marriage were domicile of the country where polygamous form of marriage
is legalized.[11]
The crucial question is whether the
law under which the marriage is celebrated permits polygamy, if it does not,
the marriage is monogamous. If a country has provision for both polygamous and
monogamous marriage the parties’ choice of form of ceremony will determine the
nature of marriage. If the husband is not allowed to take more than one wife at
one point of time by the law, then the keeping of concubines is also prohibited
as concubinage is a status recognized by the law which prohibits such.[12]
In Venugopal K. v. Union of India
the Kerala High Court has decided that the provision of bigamy under section
494 of IPC shall be applicable to everyone domiciled in India irrespective of
the fact that he/she is Hindu/ Muslim/ Christian or Parsi.
II.I.I. The Conflict of Law
Situation: What law to determine the nature of Marriage?
This question arises mainly in
marriage where any foreign element is involved. In Lee v. Lau the Court
has tried to come up with a satisfactory answer to the question as to which law
shall determine the nature of marriage where there exists a foreign element. Cairns
J. in this case considered that reference should be made to the law of the
place of celebration of marriage to ascertain the nature and incidents of such
union so taken place. Though, it has also been made clear by Cairns J.
that when a Court is called upon to make decision on the nature of marriage it
must be made according to the Lex Fori.[13]
II.II. Parties Capacity to Marry
The general rule in Private
International law governing capacity of parties to marriage is Lex Domicilii
i.e., law of the place where the parties to the marriage have domicile prior to
the marriage. Where in common law system the rule of Lex Domicilii is applied
by the Forum in order to choose between possibly relevant foreign laws involved
in any lawsuit, the Civil law system applies the rule of Lex Patriae.
Therefore, countries where civil law system is followed the capacity of the
parties to marriage is governed by the law of nationality of the parties.
II.II.I. The Conflict of Law
Situation: Conflict as to the law governing Capacity
Conflict arises due to the difference
of understanding regarding the ‘prohibited degrees’ of relation by different
legal systems. A particular relation may not be regarded as within prohibited
degrees by one legal system while any other legal system may consider the same
relation as within prohibited degrees. This is what happened in Brook’s case.
The parties to the marriage were not allowed by the English law to marry each
other as the relationship they share came under the prohibited degrees of
relationship and they were related to each other by affinity. To overcome this
problem the couple chose Denmark where the relationship they share did not come
under prohibited degrees. The House of Lords stated that ‘it is the settled
rule of international law that a contract must be valid according to the law of
the place where it is made, and its validity must be accepted throughout the
world’. But there are two exceptions to this rule. It was further observed by
the House of Lords that the present suit came under the second exception to the
general rule which stated that ‘the contract though valid in the country where
made, is prohibited in any other country by express law and all the subjects by
later country are forbidden anywhere and under any circumstances to enter into
such contract’. Therefore, the marriage was held invalid basing upon the second
exception to the general rule.[14]
Conflict also arises when the age
limit (i.e., the marriageable age of a person) varies from one legal system to
another. For instance, in Australia, Germany the marriageable age is 18 years
while it is 16 years in United Kingdom. In France the marriageable age is 18 for
male and 15 for female while in India it is 21 for male and 18 for female.
Another situation where conflict often arises is the area regarding parental
consent. In case of a marriage of a minor the consent of the guardian of the
minor is needed.
Ceremonies of Marriage
The
general rule of private international law provides that the formal validity of
the marriage involving foreign element is governed by the Lex Loci
Celebrationis. While explaining formal validity of marriage involving foreign
element following important questions arise, these are,[15]
i)
What determines whether the matter in question is
related to forms of marriage? &
ii)
The threshold question is where does ‘form’ end and
‘capacity’ begins?
Simonin
v. Mallac is a leading case in the field of determination of
formal validity by English Court. In this case, a French woman filed a petition
before the English court seeking it to declare her marriage as null and void
with a French man on the ground that the marriage lacks essential requirements
to be valid. English court had jurisdiction over the suit as the place of
celebration of the marriage was England. Lord Creswell in the aforementioned
case observed that the parental consent so essentially required by the French
law is just a matter of form of marriage. According to the English conflict of
laws rule the formal validity of marriage is governed by lex loci celebration
is rule. Thus, the formal validity of this case was governed by the English
conflict of laws rule, for, England being the place of celebration of the
marriage. It was held in this case that ‘the parties by professing to enter
into a marriage contract in England have mutually given to each other the right
to have force and effect of the marriage contract determined by the English Tribunal.’
Exception to the Lex Loci Celebrationis Rule
Lord
Eldon in Sussex Peerage case was clear that the ‘parties can invoke the
common law if they could not avail themselves of the law of the place of
celebration or if there was no local law’.
In R
v. Mills the House of Lords held that a marriage celebrated in Ireland by
Presbyterian minister according to the rites of Presbyterian Church was
invalid. It was held that marriage in Ireland is governed by common law system
and is invalid if not performed by Episcopally ordained priest or Dracon.
Case Laws:
Facts:
A French man (defendant) married an English woman (plaintiff) in England. However, he did not obtain the consent of his parents before marriage (According to French law, there is a rule which required parental consent to marriage). Hence, by a decree of the French Court, this marriage was annulled, on the ground that the consent of the parent, as required by French law, had not been obtained. The defendant subsequently married a Frenchwoman in France. Later, the plaintiff filed a suit in England for the dissolution of her marriage with the defendant on the ground of his adultery and desertion.
A French man (defendant) married an English woman (plaintiff) in England. However, he did not obtain the consent of his parents before marriage (According to French law, there is a rule which required parental consent to marriage). Hence, by a decree of the French Court, this marriage was annulled, on the ground that the consent of the parent, as required by French law, had not been obtained. The defendant subsequently married a Frenchwoman in France. Later, the plaintiff filed a suit in England for the dissolution of her marriage with the defendant on the ground of his adultery and desertion.
The English Court applied the English conflict rule by stating that the place of celebration of marriage is England, after considering the French requirement as a matter of forum. The Court thus found the French law of requiring parental consent as invalid and upheld the validity of marriage.
However, a French Court, while deciding on the validity of the same marriage applied the French conflict rule. While defining the necessity of parental consent to marry, the Court declared the marriage as null.
Issues:
The issues in the case were the nullity of marriage, bigamy, irregularity of French law, jurisdiction of the case, conflict of law.
In the present case, both England and France had same conflict rules regarding the place of celebration of marriage and party's domicile. Nonetheless, the result was different due to difference in the definition of issue. This challenge of defining and classifying the issue as well as the connecting factor is called as characterization.?
Judgement:
The lex loci contractus must prevail. The marriage later contracted by the defendant was bigamous and must be annulled.
·
Re Berchtold[17]
Facts:
A Hunagrian man died, leaving behind his will which dealth with his estate in England. By that will he devised and bequeathed all his freehold estate and all other his real estate and all his personal estate in the United Kingdom to his trustees upon trust for sale and conversion. He was domiciled in Hungary and hence by English laws of intestacy concerning movable properties, the law of domicile would be applicable i.e. Hungary.
A Hunagrian man died, leaving behind his will which dealth with his estate in England. By that will he devised and bequeathed all his freehold estate and all other his real estate and all his personal estate in the United Kingdom to his trustees upon trust for sale and conversion. He was domiciled in Hungary and hence by English laws of intestacy concerning movable properties, the law of domicile would be applicable i.e. Hungary.
Issues:
The issues were the conflict of Laws for the land devised on trust for sale, Lex situs Lex domicilii.
Judgement:
The court chose to administer the lex situs rule as to determining movable and immovable property and thus treating the freehold as money. When a person domiciled in a foreign country dies intestate leaving an interest in the proceeds of sale, of English freeholds which are subject to a trust for sale but not yet sold, such an interest is an immovable, and the succession thereto is governed by the lex situs.[8]
This case illustrates the inefficacy in suggesting a single theory as a model in conflict of laws. In this case, the Court decided the case with the most logical means while dealing with the said immovable property.
Conclusion
A general application of the doctrine
of lex fori would result in the implementation of neither the forum nor the
causae law, but rather the law that is neither. This notion is also false when
it comes to international regulations and law, and it falls flat when there is
no distinction between forum and foreign law. As a result, the lex causae
theory and other characterization theories have been developed in contrast to
Bartin’s idea.
The problem in conflict of law is
regarding classification of connecting factor. In a law suit regarding validity
of marriage involving foreign element the court often finds it difficult to
classify whether a particular requirement is related to formality only or is
more than that and extends to capacity of parties to the marriage. There are
some areas where confusion is recognizable.
Thus, in conflict of laws the areas
of confusion are,
i)
Characterization
of the connecting factor,
ii)
Characterization of cause of action and allocation of it to correct legal
category, &
iii)
Post characterization application of law i.e., choice of law.
[1] Vol. no. 30, F. Kahn,
Gesetzkelten, Jehrings Jahrbucher (1891).
[2] F. Bartin, De L'impossibilit
D'arriver La Suppression D'finitive Des Conflits Des Lois (1897)
[3] Aishwarya Sandeep, “Theory of
Lex Fori” available at: https://aishwaryasandeep.com/2021/06/14/theory-of-lex-fori/ (last visited on March 14, 2023).
[4] Ibid.
[5] Britannica,
available at: https://www.britannica.com/topic/conflict-of-laws/Choice-of-law
(last visited on March 09, 2023).
[7] Jacob Dolinger & Carmen
Tiburcio, THE FORUM LAW RULE IN INTERNATIONAL LITIGATION WHICH PROCEDURAL LAW
GOVERNS PROCEEDINGS TO BE PERFORMED IN FOREIGN JURISDICTIONS: LEX FORI OR LEX
DILIGENTIAE?, 33 TEX. INT'L L.J. 425, 430
[9] Indrani Kundu, “Validity of
Marriage : A Study in Private International Law” available at: https://www.studocu.com/en-za/document/university-of-the-free-state/international-private-law/validityofmarriage-astudyinprivateinternationallaw/31225867
(last visited on Nov 16, 2023).
[10]
Supra note 9 at 4.
[14]
Supra note 9 at 4.
[16] Ogden v Ogden, 144 S.W. 355
(France).
[17] Re Berchtold (Berchtold v.
Capron.), 1913. B. 2773, [1923] 1 Ch. 192 (United Kingdom).