International marriage rules

July 19, 2017 General Studies

In today’s universe where globilisation, increased international integrating and inexpensive air travel mean that the lives of people from different states can frequently bury mingle, bring forthing possible jobs where this inter mixing consequences in a matrimony, and possibly a subsequent divorce or separation. Rules associating to the cogency of a matrimony celebrated abroad depend upon the fortunes of the matrimony, the state in which the jubilation took topographic point and the Torahs of that state every bit good as the Torahs of the state in which a foreign matrimony is sought to be enforced within.

Assorted efforts have been made by the international community to make uniformity in the application of matrimony regulations and these philosophies have come to be recognised as the struggle of Torahs rules. In the country of struggle of Torahs, the rule offavor matrimoniiensures that marriages which reflect a echt committedness are by and large upheld. Although it is hard to do a catch–all generalization, it is likely just to state that in general footings the Torahs of the state in which the matrimony took topographic point take case in point in fortunes where a struggle arises as to how the matrimony should be interpreted.

The Lex Loci Celebrationis

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This refers to the local traditions which formalise a matrimony in certain legal powers. In footings of finding whether a matrimony has cogency, local readings of what the formal demands are for the jubilation of a valid matrimony ( lex venue celebrationis ) are normally accepted as valid by the international community. In footings of the Common jurisprudence, the British Courts have held that where there is no distinguishable manner of lex venue and a matrimony is celebrated abroad harmonizing to the lex venue of England, so the matrimony should be recognised as valid by the British Courts [ 1 ] .

In this context, there are four demands necessary to hold a valid marriage.These have been summarised by Collier ( 2001 ) in the undermentioned manner: ‘… ( I ) that the needed formalities are complied with ; ( two ) that the parties have legal capacity to get married each other ; ( three ) that they freely and wittingly consent to make so ; and ( four ) that the matrimony is consummated [ 2 ] ’ .

Formalities of Marriage

These formalities are affairs such as whether an existent ceremonial ( spiritual or civil ( or both ) ) is required by the regulations of the legal power in which the matrimony took topographic point. Other formalities can be the building of the words used to formalize the matrimony, the publication of matrimony ‘banns’ or formal notices. Therefore an illustration would be ; where an English Domiciliary marries a Belgium individual in Belgium and complies with the local matrimony ordinances ( the lex venue ) so this individual can be considered to be married for the intents of jurisprudence in England or in Belgium.

Conversely, nevertheless, if the same twosome get married in Belgium but observe the lex venue of England, there may be a inquiry as to whether or non the matrimony is a valid 1. This regulation dates back to the twelvemonth 1752, and was reconsidered by the Privy Council in 1930 in the instance of Berthiaume v. Dastous [ 3 ] where a matrimony between two Gallic Canadians in France was held to be invalid as it did non follow with the lex venue which would hold required an extra civil ceremonial. One caution to this regulation has been implemented in 1957 through the determination of the Court of Appeal in the Case of Taczanowska v. Taczanowski [ 4 ] which held that lex venue can be circumvented in certain limited fortunes.

This instance jurisprudence nevertheless has besides opened up the argument as to whether a matrimony brotherhood celebrated by placeholder can be considered valid. One illustration of this is the lex venue of Argentina which recognises matrimony by placeholder. One instance which developed this rule was that an Argentine adult male went through a service of matrimony to an English adult female. The adult male was present at the ceremonial which took topographic point in Argentina ; the adult female was non present but was represented. The matrimony was held to be valid ( in 1948 ) on the footing that the lex venue of Argentina allowed for by proxy matrimony, even though the lex venue of England does non allow a valid matrimony to be executed in this manner. This rule was further developed in the instance of Mc Cabe V Mc Cabe [ 5 ] where it was held that a matrimony can be valid even where neither party to the matrimony are present at the ceremonial.

There are nevertheless, exclusions to the regulations of lex venue. Some of these exclusions arise through the operation of assorted legislative acts in the country, viz. the Foreign Marriages Acts 1892-1947 and the Foreign Marriage ( Amendment ) Act 1988, which guarantee that where a matrimony takes topographic point in a foreign state between a British citizen and another, the matrimony may be invalid under the lex venue but valid under British jurisprudence [ 6 ] . Certain exclusions besides apply to matrimonies celebrated by chaplains in the British Forces where one party to the matrimony is a member of the British Forces [ 7 ] .

Decision

The regulations in this country are complex and it is just to state that in footings of a valid matrimony the local traditions of the state where the matrimony has been celebrated are really of import when the cogency of the matrimony falls to be determined by an nonsubjective organic structure. However, the international community have tried to do international matrimony regulations every bit unvarying as possible.

Bibliography

Collier, J. ( 2001 ) Conflict of Laws. Publisher: Cambridge University Press. Topographic point of Publication: Cambridge, England.

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