Summary Notes on Conflict Law : Marriage

Assalam & Salam sejahtera

Notes on Conflict of Law : Marriage

...........................Here it goes..............................

CHAPTER : MARRIAGE

è WHAT IS MARRIAGE ?

ü HYDE v HYDE

· PRINCIPLE : Marriage is voluntary union for life of one man & one woman to the exclusion of all other (monogamy marriage).

Ø It is important to determine the matter related to the validity of marriage / divorce / etc, as it change your legal status & legal rights, & leave effect to your children.

Ø How to determine :

1) FORMAL VALIDITY

♥ QS : Was the marriage ceremony conducted properly according to the law which the marriage takes place?

♥ Lex Loci Celebrations : The law which the ceremony conducted of the country. (So, you have to follow the country’s law although it strange.)

♥ If there is any issue relating to this 1^st element, it must be noted that such un-compliance does not invalid the marriage.

♥ Eg : In M’sia the paramount element for the formality of marriage is to register such marriage.

ü CRIMSHA v CRIMSHA

· PRINCIPLE : Assumption is that for foreign marriage, you will have to follow the law of the country / else it will consider your marriage invalid. – Rebuttable.

ü BERTHIAUME v DISTOS

· FOC : The couple married under the Catholic wedding but never register such wedding. Under French law, the marriage is invalid if it is a religious marriage.

· PRINCIPLE : The marriage instead become invalid due to the fact that the couple did not registered it.

Ð EXCEPTION TO THE FORMALITY VALIDITY RULE

♥ If you get married in Embassy.

§ Here, they just need to follow the law of embassy where you get married, no need to follow the law of the country they were at. - S. 104 Law Reform (Marriage & Divorce) Act.

§ Conditions :

i. The embassy needs to have agreement from the receiving country to conduct such marriage.

ii. One of the parties must be the national of the country in which the embassy belongs to.

♥ If it bring Insuperable Difficulties.

§ It refers to the situation where it is very hard for you to follow the law of the country you living in.

ü LORD CLUN CURRY’S CASE

· FOC : In Italy the law of roman catholic was applicable. The couple in this case is the protestant Christian. The couple happy to follow the roman’s Catholic’s ceremony but the priest of all roman catholic refused to marry them off. At last they found a priest of protestant faith & married off.

· ISSUE : Is the marriage is valid, as the only marriage recognize in Italy at that time must be conducted under roman catholic.

· PRINCIPLE : Marriage is valid as the couple was under insuperable difficulties.

♥ Military force in occupied country.

§ It involves army, in a war at the enemy state.

§ Concept : For occupy force, when you at the enemy state, you don’t need to follow the enemy’s law of marriage, just follow your country’s law of marriage.

ü TACZANOWSKA v TACZANOWSKA

· FOC : Army couple successfully take over Italy, and married by army’s priest in the camp. They did not follow the Italy ceremony. Later, the husband died & wife claimed such marriage is not valid.

· PRINCIPLE : Do not need to follow the country you are in (the enemy state).

ü KOCHANSKY v KOCHANSKY

· PRINCIPLE : The couple in this case is not an army but a detainee. The court held the same rule applied for the detainee, marriage is valid.

ü MERKE v MERKE

· PRINCIPLE : Court held that the exception was said to be only applicable during war time, and it is available to be used by the soldier (actual member of military), or a member of resistance force (civilian who took up arms) or escaped prisoner of war, where here you don’t have to follow the law of the enemy’s state to get married.

z Issue : How about other person who embedded in the military force such as doctor / journalist / photographer / etc?

z They are not going to join the war but their work is closely related to the military course of work. Would it apply? – Depend on your argument-

♥ Marry at the high sea.

§ The law that is applicable for your marriage is the of the ship, follow the flag (represent the country) ship.

Ð FORMALITY : TIME FACTOR’S ISSUE

♥ When do you determine the validity of marriage?

♥ Logically, the date when you marry must be referred to, but some situation may refer to the date of the case disputed.

ü STAKOWSKY v AG

· FOC : The couple in this case married in Austria. At that time, the Austria law need the marriage to be registered. They do not register it. Later, somewhere after their marriage, a new law had been passed which stated that it is valid if priest register such marriage on behalf of the couple. The priest who married the couple of had registered their marriage. A bit later, the marriage broke down & seek for divorce.

· ISSUE : Whether the law reefers to the time that they married / time the case heard?

· PRINCIPLE : Refer to the time the couple get married. The retrospective law can be applied if :

i. The law was designed to validate the marriage not to invalidate (creating unjust).

ii. The law was passed in good faith.

iii. The law must be passed to solve problem ASAP.

iv. The issue arises in the case is not relating to the element of capacity but on the formality validity.

2) CAPACITY TO MARRY.

♥ Refer to personal ability to get marry & this differ from country to country. (eg : age / soundness mind / etc).

♥ There are 2 available test, the dual dom. test & intended matrimonial test.

§ DUAL DOM. TEST

z It is a very hard & tough test to be proven.

z Here, this test referring to the law of both parties dom.

z In order for this test to be successfully carried out, both of the parties’ dom. must legally allow their condition.

z It is a very protective test as the main purpose of this test is to protect the young children who always trapped to marry early.

ü RE PAINT

· FOC : The woman in this case had married off her sister’s husband (the woman’s brother in law). She married in German, & such marriage is acceptable there. However, in the England law, it is not permissible to marry the brother in law as it is considered as incest.

· PRINCIPLE : The marriage is not valid.

ü PUGH v PUGH

· FOC : A man who had England dom. married with the 15 yo Hungarian girl in Austria. Austria law considered such marriage valid. The Hungarian law said that 15 yo is a valid age to get married. England law said that both husband & wife have to be 16 yo & above to marry.

· PRINCIPLE : The marriage is not valid as the girl is underage, the fact that the husband fulfil the age’s requirement is irrelevant as both of the parties dom.’s need have to be met before marriage is valid.

ü PADOLECCHIA v PADOLECCHIA

· FOC : An Italian man was married & got divorce in Mexico using the Mexican law & it was done via ‘proxy’ (letter). This type of divorce is not recognized in Italy. Then, he went to England, met an English girl & married on the same day there were met. Later he claimed that his previous divorce was not valid as per his dom.’s law. Thus, he was incapable to marry the girl, rendered the 1 day marriage to be invalid.

· PRINCIPLE : The 1 day marriage is not valid as under his dom.’s law, he don’t have the capacity to marry the English girl under the above condition.

§ INTENDED MATRIMONIAL HOME TEST (Alternative test)

z The main obj. is to determine the capacity of both the parties.

z Here, the law that is referred to the law of the country where the couple intended to live as husband & wife.

z The dual dom. test is more protective compare to the matrimonial test in term of early age marriage, but it working vice versa for the protection of cultural & religious value.

z The dom.’s law is irrelevant here.

ü RADWAN v RADWAN

· FOC : Radhuan is a married Egyptian man who wanted to marry another girl. He had choose to marry of an English’s girl at France. He had choose to get married in Egyptian’s embassy in French. Under the England law, polygamous marriage was never an acceptable marriage. They intended to live in Egypt, but due to the Terusan Suez’s conflict, the couple thought it was not safe to go back to Egypt at that time. They stayed in England, & having 8 children. Later, she wanted to have a divorce.

· ISSUE : Did the marriage valid which will rationale the divorce’s petition?

· PRINCIPLE : The marriage is valid as per the test of Intended Matrimonial Home test. Here, according to the Egyptian law, a country where the couple intended to have their matrimonial home, the polygamous marriage is valid. Thus, divorce is claimable.

ü SOTTO MAYOR v E BARROS

· FOC : They was a couple which originally Portuguese, and they were cousins. The man is English, and the woman is Muslim. They get married in England, and such marriage is acceptable. But under the Portugal law, in order to have such marriage, a letter must be written to the pope asking the permission to get married. The girl who has owned the Portugal’s dom., does not did that.

· PRINCIPLE : It is unfair for the Englishman that married in England to be invalidated by other country law. So here, the English man, who married in England under English law, the marriage is valid, even for the fact that the girl doesn’t have capacity according to her dom.’s law.

· CRITIQUE : This judgment is very bad as it indirect way disrespecting other country.

ü CHENI v CHENI

· FOC : An Egyptian married his niece (uncle & niece). Under England law, it is against the Christianity concept to accept such marriage, but under the Egyptian law, such marriage is acceptable.

· PRINCIPLE : The court cannot force one society’s value on others & must accept other traditions. Such marriage is valid.

è HOW TO DIFFERENTIATE WHICH TEST IS APPLICABLE ?

Ø Gen. rule is that :

♥ Formal validity rule : Determine by the lex loci celebrations (the law of the country which the ceremony is conducted at).

♥ Capacity : Determine by either dom. / intended matrimonial home test.

ü OGDEN v OGDEN

· FOC : A French couple married in England where both of the parties were 16 yo. According to the French’s law, one can only marry without the parent permission if the couple is 25 yo & above.

· ISSUE : Is this 25 yo rule is capacity / formal validity rule?

· PRINCIPLE : The court said it only amounted to be as the formal validity rule because for the couple below 25 yo, they have to get the permission of the parent which only for the ceremonial purposes. So, IF THE ISSUE DOES NOT STOP THE COUPLE FROM GETTING MARRIED, IT BELONGS TO THE FORMAL VALIDITY RULE, but IF IT HAVE THE CAPABILITY OF INVALIDATE THE MARRIAGE, THE CAPACITY RULE SHALL BE USED.

ü SIMOMIN v MALLAC

· FOC : According to the French’s law, if an indi. wanted to marry with someone from other religion, they have a parent permission which must be done in 3 months & 3 times. The couple in this case does not get the permission. They get married in England where the marriage is valid.

· PRINCIPLE : The court regarded such rule as only a formal validity rule. The couple still can marry even if they do not get the permission to do so after the period of 3 months. So the marriage is valid.

CHAPTER : MATRIMONIAL CAUSES.

è NULLITY OF MARRIAGE ?

Ø Here, the marriage is considered as void from the start.

Ø S.67 of LRA – Nothing in this Act shall authorise the ct to make any decree of nullity of marriage except if :

a) The marriage has been registered / deemed to be registered under this Act /

b) Where marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous, &

c) Where both of the parties to the marriage reside in M’sia at the time of the commencement of the proceeding.

Ø S. 69 of LRA – Grounds on which the marriage is void :

a) At the time of marriage, either party was already lawfully married & the former husband / wife of such party was living at the time of the marriage & such former marriage was then in force ;

b) A male person marries under 18 yo of age / female who is above 16 yo but under 18 yo marries without a special licence granted by the Chief Minister as per S.10 of LRA.

c) The parties are within the prohibited degrees of relationship unless the Chief Minister grants a special licence under S.11(6) of LRA /

d) The parties are not respectively male & female.

Ø S. 70 of LRA – Grounds on which the marriage is voidable :

a) That the marriage has not been consummated owing to the incapacity of either party to consummate it ;

b) That the marriage has not been consummate owing to the wilful refusal of the Respondent to consummate it ;

c) That either party to marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind, or etc ;

d) That at the time of marriage either party, though capable of giving a valid consent, was (whether continuously / irregularly) a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 of such kind / to such extent as to be unfit for marriage ;

e) That at the time of the marriage, the Respondent was suffering from disease in contagious form ;

f) That at the time of the marriage the Respondent was pregnant by some other person other than the petitioner.

è DIVORCE ?

Ø S.48 (1) of LRA – Nothing in this Act shall authorise the ct to make any decree of divorce except :

a) Where the marriage has been registered or deemed to be registered under the Act /

b) Where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous &

c) Where the dom. of the parties to the marriage at the time when the petition is presented is in M’sia.

Ø S.48 (1) of LRA – Nothing in this Act shall authorise the ct to make any decree of judicial separation except :

a) Where the marriage has been registered or deemed to be registered under the Act /

b) Where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous &

c) Where both of the parties to the marriage reside in M’sia at the time of the commencement of proceeding.

Ø S. 49 of LRA – Wife can ask if she reside M’sia for a period of 2 years immediately preceding the commencement of the proceedings, although husband is not dom. / resident in M’sia.

♥ QS : Under Common Law, in what situation foreign divorce been recognized?

§ If both parties dom. in that country where they got divorce, divorce is not a problem.

§ If both of the parties not dom. in that country, the divorce will be valid as long as the law of the country recognizes the divorce. *If it is not recognized by the law of dom., refer to the case of Padolechia v Padolechia.

§ For the divorce to be valid, it must have the real & substantial connection to the country.