13-16 Flashcards
(30 cards)
Hyde v Hyd
The concept of Christian marriage was defined by Lord Penzance in
Hyde v Hyde thus : “marriage as understood in Christendom may be
defined as the voluntary union for life of one man and one woman to
the exclusion of all others.” The requirements of an English marriage
are that (1) the union should be voluntary (2) it should be
monogamous (3) it must not be for a limited period
It is clear from the above that polygamous marriages are excluded
from the concept of English marriages. The exclusion embraces not
only actual polygamous unions but also potentially polygamous
marriages
Starkowski vs Attorney General 1953 (English case),
Two Roman Catholics domiciled in Poland got married in an Austrian Church without
civil ceremony and priest in May 1947, when Austrian law did not recognise such
marriage.
2. After a few weeks an Austrian legislation validated such marriages retrospectively upon
registration of the marriage.
3. The marriage was not registered then and the parties acquired English domicile after
they moved to U.K.
4. In 1950 the wife married another man in England and the question before the court was
whether the second marriage was valid.
5. The court held that Austrian marriage was valid due to the retrospective Austrian
legislation and therefore the second marriage by the wife was bigamous and void.
6. It was held that if a marriage does not comply with the formalities i.e., the lex loci
celebrationis at the time of the marriage, it may be validated by subsequent
retrospective change of law in lex loci celebrationis.
Hashmi v. Hashmi
, a Pakistan domiciled
husband married a Pakistani woman and had children. He then went to England and married
an English woman and had children. The issue before the court was the legitimacy of the
children from both the marriages. For declaring the legitimacy, the court declared the marriage
as valid. It was held that children of a potentially polygamous marriage can succeed to property
in England and for declaring legitimacy of the children the court also declared the marriage as
valid.
Ali Vs. Ali, 1966
The parties were domiciled in India & married in India when polygamy was recognised.
They later came to England and husband acquired an English domicile.
Husband petitioned in English court for divorce on the ground of desertion.
The court recognised his change of domicile and granted him the relief as husband’s
domicile & residence in England prevented him from entering into a second marriage
& therefore the marriage had become monogamous in nature.
A similar exception was carved out in the case of Baindail Vs. Baindail 1946
Cheni Vs. Cheni 1962 (English Case)
Marriage in Cairo, Egypt b/w two jews
Will the marriage be polygamous.
However the conditions was that the husband can remarry if no child is born within 10
years of marriage.
The wife moved the English court for matrimonial relief.
The English Court recognised this as a monogamous marriage in lieu of change of
circumstances & granted the matrimonial relief to the wife.
Therefore there are exceptions to Hyde Vs. Hyde as the very nature of marriage may
change due to variety of reasons For Eg: Change of religion, Change of domicile,
Subsequent ceremony in Monogamous form, Subsequent events which change the
nature of marriage according to Lex Loci Celebrationis
Determination of Applicable Law in Marriages under principles of Indian PIL
‘Central Government… may declare that
marriages solemnised under the law in force in such foreign country shall be recognised by
the courts in India as valid.”
● Section27 of Act also states that the statute would not a ect the validity of a marriage solemnised in a foreign country under a foreign law
This indicates that there is recognition of the principle of lex loci celebrationis in respect of formal validity
Sinha Peerage Claim
Marriage between two Hindus in Indiain 1880.The Hindu law at that time
allowed plurality of wives for the husband and hence the marriage was polygamous
at its inception. But later the spouses had joined Brahma samaj, one of whose tenets
was monogamy.Since the husband had not taken a second wife and since by their
new religion they have accepted monogamy, the marriage at the time of the
proceedings was recognised as monogamous
Supriyo Chakraborty v UOI :
nanimously held that there was no unqualified
fundamental right to marry under the Constitution
In a 3:2 split,
the majority upheld the ‘right to relationship’ for queer couples but
it also opined that the judiciary cannot confer a right to marry in the
absence of a statute. In contrast, the dissenting opinion recognised
‘civil unions’ formed between queer (“LGBTQIA+”) individuals.
Same sex-marriage in India
Naz Foundation v. Govt. of Delhi (2009) – The Delhi High Court
decriminalized homosexuality
-
Suresh Kumar Koushal v Naz Foundation (2013) – A 2-judge bench of
the Supreme Court overturned the judgment Naz Foundation v Govt
of Delhi and reinstated section 377 of the Indian Penal Code. -
Navtej Singh Jauhar v Union of India (2018) – decriminalized all
consensual sex among adults including homosexual sex.
Transsexual marriage
Transsexual marriages involve individuals who have undergone gender reassignment surgery or identify with
a gender different from their assigned sex at birth. The legal recognition of transsexual marriages varies
between India and the UK and may be subject to complex legal considerations.
* In India, the legal recognition of transsexual marriages is limited, and there is no specific legislation
addressing the rights of transgender individuals or their ability to marry. However, the Supreme Court’s
landmark judgment in the National Legal Services Authority v. Union of India case recognized the rights of transgender individuals and directed the government to take steps to protect their rights, including the right to
marriage.
Essential validity of marriage
- Essential validity – relates to age, capacity, prohibited degrees of relationship etc.
**Dual domicile theory
unless– dicey **
According to this theory a marriage is invalid
according to the law of the domicile of both contracting parties at the time of marriage, they each have the capacity to contract that particular marriage.
Merits:
The greatest merit of this theory is that the capacity to marry is governed by the law, which up to the time of marriage has governed the
status of each party. As pointed out by Morris, the dual domicile theory preserves the equality of the sexes by looking into the law of both parties’
domicile.
Criticism
: Cheshire points out that this theory enables the parties to evade the prohibitory rules of lex domicili by changing the domicile
Theory of Intended Matrimonial Home– Cheshire
According to this theory, the
capacity to marry is governed by the law of the country where the parties at the time of marriage intended and did establish their matrimonial home. In the vast majority of cases, this will be the
country where the husband is domiciled at the time of marriage.
Disadvantages: One main objection to this theory is that it is not possible
to say precisely whether the marriage is valid or not at the time of
celebration of marriage. The parties should intend to establish their
matrimonial home in a particular country and should have actually done
so
brook v brook and mette v mette
a) Brook v. Brook (1861) H.L.
- English man & deceased wife’s sister, both English domiciled.
- Married in Denmark (legal there).
- English law prohibited such marriages.
- Intended matrimonial home: England.
- Held: Marriage void.
-
Principle:
- Formalities of marriage: Governed by lex loci celebrationis (law of the place of marriage - Denmark).
- Capacity to marry: Governed by each party’s ante-nuptial domicile (law of their domicile before marriage - England).
- Lack of capacity under English domicile made the marriage void, despite Danish legality.
b) Mette v. Mette (1859)
- English domiciled man (“X”) married German domiciled deceased wife’s sister (“Y”).
- Prohibited by English law, valid by German law.
- Matrimonial home: England.
- Held: Marriage void.
-
Principle Illustrated:
- Compatible with “dual domicile theory”: If either party lacks capacity under their own domicile, the marriage is invalid.
- Husband lacked capacity under English domicile.
- Matrimonial home in England also supported the decision.
Essentially, both cases establish that capacity to marry is determined by the law of each person’s domicile before the marriage, not just where the wedding happens.
Padolechia v. Padolechia
- “P” was domiciled in Italy.
- He married in Italy in 1953.
- He obtained a divorce by proxy from a Mexican Court.
- Italian law would not recognize this Mexican divorce.
- Subsequently, “P” moved to Denmark and, while domiciled there, made a one-day visit to England.
- In England, he married a woman domiciled in Denmark.
- After the English marriage, they both returned to Denmark to establish their matrimonial home.
- “P” sought an annulment of the English marriage in an English court.
- His argument for annulment was that he was already validly married at the time of the English marriage due to the Italian marriage.
The central legal question was whether the Mexican proxy divorce should be recognized by the English court.
-
Italian law (his domicile) did not recognize the Mexican divorce.
The judge held that the capacity of “P” to enter into the English marriage should be decided with reference to Italian law (his *lex domicilii). - Since Italian law did not recognize the Mexican divorce, “P” was still considered married under his lex domicilii at the time of the English marriage.
- Therefore, the English court granted the annulment of the English marriage.
In essence, the case illustrates the principle that a person’s capacity to marry is governed by the law of their domicile. If their domiciliary law does not recognize a previous divorce, they are still considered married under that law, and thus lack the capacity to enter into a subsequent valid marriage elsewhere.** This aligns with the dual domicile theory, where each party must have the capacity to marry according to their own domiciliary law.
Sottomayor v. De Barros (No. 1) and (No. 2)
Sottomayor v. De Barros (No. 1) (1877)
- Two first cousins, supposedly domiciled in Portugal, married in England.
- Marriage between first cousins was invalid by Portuguese law but valid by English law.
- Parties were young and lived together in England for six years without consummating the marriage.
- The girl petitioned for nullity on the ground of prohibited relationship.
- Court of Appeal held: The capacity must depend upon the law of domicile. If the parties were domiciled in Portugal at the time of marriage, the marriage would be void (according to Portuguese law).
- Significance: This decision is presented as being against the theory of the intended matrimonial home and suggests that capacity to marry is governed by the law of the domicile of the parties.
Sottomayor v. De Barros (No. 2) (1879)
- In separate divorce proceedings, the court determined the husband was domiciled in England, and the girl was domiciled in Portugal at the time of marriage.
- Legal Question: What is the effect of this finding on the validity of the marriage?
- Court held: Applied English law (lex loci celebrationis) and held the marriage valid.
- Reasoning: The marriage was valid according to the law of the place where it was celebrated (England).
-
Significance:
- This decision is presented as being clearly against the dual domicile doctrine (which would likely have invalidated the marriage based on the Portuguese domicile of the wife, where it was prohibited).
- It is also stated that this decision has never been overruled.
- Dicey considered this case an exception to the dual domicile principle, stating: “The validity of a marriage celebrated in England between two persons, one of whom has an English and the other a foreign domicile, is governed by English law.”
Significance: Supports the idea that both parties must be capable of marrying under their respective ante-nuptial domiciles.
In short, these two cases highlight a conflict in English law regarding the determination of capacity to marry. While No. 1 suggests domicile governs capacity, No. 2 carves out an exception for marriages celebrated in England where one party is English domiciled, applying English law (lex loci celebrationis) to uphold the marriage’s validity, even if it would be invalid under the foreign domiciliary law of the other party. This creates an inconsistency with the strict dual domicile theory.
Validity of a foreign marriage in India
There are 3 ways in which a foreign marriage may be held to be valid in India:
* 1. It fulfills the requirements
Marriage Act 1969
of a valid marriage as set out in the
Indian Foreign and is performed and conducted according to the procedure
set out in the Act. OR
* 2. The marriage is solemnized according to the laws of the foreign country
and under section 23 of the Foreign Marriage Act ‘the Central Government may
declare that marriages solemnized under the law in force in such foreign country
shall be recognized by the courts in India as valid.’ OR
* 3. The Indian courts may apply the lex loci validity and the lex celebrationis to determine domicili to determine essential validity the marriage fulfills the requirements of formal validity of the lex loci formal of the marriage and celebrationis and essential validity of the lex domicili in cases that don’t fall under
the first 2 categories
Formal Validity: Principle of Locus Regit Actum
Formalities of marriage are governed by the lex loci celebrationis, the law of the
place where the marriage was celebrated.
* The maxim is locus regit actum i.e. the place governs the act.
* If a marriage is good by the law of the country where it is effected, it is good all
the world over even though the ceremony would not be recognized in the
country where the parties are domiciled. This is true only as far as formal validity
is concerned.
* Formal validity – relates to formalities of marriage. The term includes such
questions as to whether a civil ceremony or a religious ceremony or whether a
ceremony at all is required, the number of witnesses required, the permitted
time when the ceremony can be conducted and such similar matters.
* Essential validity – relates to age, capacity, prohibited degrees of relationship etc.
Divorce
-
Statutory Reforms:
- Matrimonial Causes Act 1937: Allowed deserted wives to seek divorce if husband was domiciled in England before desertion.
- Law Reform Act 1949: Gave jurisdiction if the wife was resident in England for 3 years prior to proceedings.
-
Domicile and Matrimonial Proceedings Act 1973:
- Alternative jurisdictional tests: English courts have jurisdiction if either party is domiciled or habitually resident in England for 1 year before the case.
-
Choice of Law:
- English courts always apply English law (lex fori) in divorce cases.
- Contrasts with continental Europe, which may apply law of nationality.
-
Recognition of Foreign Divorces in England:
- Earlier Rule: Recognition only if decree was granted by a court of the country of the parties’ domicile.
-
Recognition of Divorces and Legal Separations Act 1971:
- Recognizes decrees from countries where:
- One party is domiciled and
- The other party’s domiciliary country also recognizes the divorce.
- New Grounds Added: Recognition based on habitual residence, nationality, and foreign sense of domicile.
- Recognizes decrees from countries where:
-
Recognition of Foreign Divorces in India:
- Governed by Section 13 of the Code of Civil Procedure, 1908.
🔹 Crux of the Matter
The law on divorce in private international law has evolved from strict religious-based rules to a more flexible, residence-based, and justice-oriented system. Jurisdiction is no longer confined to the husband’s domicile alone, and reforms now allow both spouses access to remedies. Courts apply lex fori (domestic law) to decide divorce cases, and foreign divorces are recognized if they meet certain jurisdictional and mutual recognition criteria.
Divorce and other matrimonial relief in polygamy:
Section 47 of Matrimonial causes act, 1973 provides for several matrimonial reliefs in
case of polygamy such as
a. Divorce
b. decree of nullity
c. Judicial separation
d. Presumption of death and dissolution
e. Financial relief including two children
Brook vs Brook and Starkowski vs Attorney General
Lakshmi Sanyal v. S.K.Dhar,
when deciding whether a marriage is valid or not,, consideration must be given to the law of the domicile country of the parties, and it
is the personal laws of the parties that would govern the material conditions of
marriage.
Shaw v Gould
🔹 Facts of the Case:
- A testator domiciled in England left property in trust for Elizabeth Hickson and her lawfully begotten children.
- At age 16, Elizabeth was fraudulently induced to marry Buxton, an Englishman, in England.
- The marriage was never consummated; Elizabeth was taken away by her parents soon after.
- Years later, Elizabeth wished to marry Shaw, another Englishman, but in Scotland.
🔹 The Divorce Scheme:
- To dissolve the prior marriage:
- Buxton was paid to go to Scotland and stay for 40 days to fabricate a Scottish domicile.
- A Scottish Court granted a divorce on this basis.
- Elizabeth then married Shaw in Scotland, and they lived there.
- Shaw acquired a Scottish domicile.
- Elizabeth had two daughters and one son with Shaw in Scotland.
🔹 Legal Questions:
- Were the children entitled to inherit under the will as Elizabeth’s children?
- Was the son entitled to the lands as her lawfully begotten son?
🔹 Conflicting Legal Views:
- Under Scottish law:
- Divorce was valid.
- The marriage to Shaw was valid.
- The children were considered legitimate.
- Under English law:
- The Scottish divorce was not recognized:
- It was collusive.
- Buxton’s domicile was not truly Scottish, despite the 40-day residence.
- Therefore, the marriage to Shaw was invalid.
- Consequently, the children were illegitimate.
- The Scottish divorce was not recognized:
🔹 House of Lords’ Ruling:
- Applied English law (lex fori).
- Held that:
- The divorce was invalid under English law.
- The Shaw marriage was void.
- The children were illegitimate and could not inherit under the will.
🔹 Crux of the Matter:
The case hinges on recognition of foreign divorces and their impact on legitimacy. The House of Lords refused to recognize a collusive Scottish divorce obtained via manufactured domicile, thus rendering the second marriage void and the children illegitimate under English law—even though Scottish law recognized the marriage and children as legitimate.
Re Bischoffsheim:
🔹 Facts:
- An English testator made a will providing life interest to his granddaughter Nesta, and then to her children after her death.
- Nesta married her deceased husband’s brother, George, in New York.
- At the time of marriage, both were domiciled in England.
- The marriage was void under English law (prohibited degree).
- The marriage was valid under New York law.
- Later, Nesta and George acquired a New York domicile.
- A son was born to them in New York.
🔹 Legal Issue:
- Was the son legitimate under English law and therefore entitled to benefit under the English will?
🔹 Decision of Romer J:
- Did not follow the strict “birth in lawful wedlock” rule from Shaw v Gould.
- Recognized the son’s legitimacy because:
- His domicile of origin (New York) conferred legitimacy.
- In matters of succession to personal property, if legitimacy is established under the law of the child’s domicile, English courts will recognize that status.
- Validity of the parents’ marriage is not relevant once legitimacy under domicile law is established.
🔹 Crux of the Case:
Unlike Shaw v Gould, this case emphasizes flexibility and recognition of foreign legitimacy based on domicile. The English court accepted that a person deemed legitimate by their domicile of origin could inherit under a will, even if the parental marriage was void under English law.
Legitimation: 2 main methods
Birth in lawful wedlock therefore no longer represents the sole test of
legitimacy in English law
They are 1. legitimation per subsequens matrimonium or legitimation
by subsequent marriage of the parents
2. legitimation by the recognition given by the child’s father
Position in England:
legitamcy
A child conceived before marriage is regarded as legitimate if born after the parents were
married, and so also a child conceived before but born after the parents were divorced.
Child born after artificial insemination is legitimate even if the donor is not the husband; unless it is proved that the husband did not consent to the insemination.
child not born in lawful wedlock ,however, be regarded as legitimate in England if, and only if, it is legitimate by the law of the domicile of both the parents at the time it was born.
In Re Grove
The question was regarding the legitimacy of daughter who was
born in England of a woman domiciled in England. Her father’s domicile of origin was Switzerland but he had acquired an English domicile of choice at the time of Sara’s birth in England.
* Her parents subsequently married in England when both of them were
domiciled in England.
* Swiss law recognized legitimation by subsequent marriage and by
Swiss law, Sara would be legitimate.
- Cotton LJ held Sara illegitimate as her father was not domiciled in a
country which recognized this type of legitimation at the time of her
birth
