Marriage (conflict)

In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence.

Public policy

The central political issue for each state is the choice between potential conflict and accommodation, between assimilation and the preservation of minority rights in a diversified society. Many nations formally adopt a policy to achieve a full cultural integration and a uniform identity for all their citizens no matter what their ethnic, religious social origins. Regardless whether this is a realistic aspiration, it contrasts starkly with a policy to allow "discrete and insular minorities" to form and retain their individual identities which may be seen as a question of equality: as to whether a modern state should be aiming for equality between its citizens or an equality between groups.

As an institution, marriage represents a significant set of values which helps to define how each state wishes to constitute the family unit, regulates sexual behavior, and plans for the continued growth of population. The state may also allow religious qualities to be attributed to the relationship or, as an aspect of the constitutional separation in some countries between church and state, view it as no more than a form of domestic partnership. It will also reflect deeply held beliefs and prejudices on the age at which people may marry, the number of people who may enter the relationship, and whether same-sex marriage is acceptable. Questions on the legitimacy of any children may also be difficult to resolve.

So long as people remain in their own states, they will understand the prevailing values and, whether willingly or not, decide on the extent to which they will conform. But, as attitudes change and travel between states becomes routine, governments have found it increasingly necessary to decide what forms of ceremony they will allow to create valid marriages in their own territories, and whether all forms of marriage, lawfully celebrated in another sovereign state, will be recognized for the purposes of immigration and access to social welfare and other benefits nominally available to a husband and/or wife and/or child of the family. The problem for each state as it acts as a host for new cultures and belief systems is that a failure to accept and accommodate the new social realities may simply drive the practice of the many customs underground where the potential for abuse is significant. If the law as officially published and the reality on the ground differ dramatically, this poses serious questions about the role of the judiciary in protecting the human rights and civil rights of the women and children who find themselves victimized by the failure of the law to offer them protection.

The choice of law options

The standard choice of law rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved:

tatus and capacity

Status and capacity are defined by the personal laws of the parties, namely:
*the "lex domicilii" or law of the domicile in common law states, and
*either the "lex patriae" or law of nationality, or law of habitual residence in civil law states).The personal laws will usually define status in rem so that it is recognised wherever the individual may travel subject only to significant public policy limits. Hence, for example, as an aspect of "parens patriae", a state will define the age at which a person may marry. If such a limitation could simply be evaded by the young person traveling abroad on a holiday to a country with a lower age limit, this would clearly breach the policy of the "parental" state. The same principle would apply to an adult who wished to create a polygamous marriage or to evade a restriction on consanguinity. In Family Law as opposed to the Law of Contract, there is also a strong case for legal capacity to be universally enforced to limit to ability of individuals to evade normally mandatory rules. The claims of the "lex loci celebrationis" to apply are weak given that the significance of the location may be no more than the convenience of their laws to those wishing to marry.

The formal and/or essential validity of the marriage

#The form of the marriage is governed by the "lex loci celebrationis" or the law of the place where the marriage was celebrated, and is usually considered definitive on whether the ceremony has been effective to create the relationship of marriage (see nullity).
#The validity of the marriage is governed by the capacity of the parties to marry each other. That capacity is usually governed by the domicile of the parties. Thus for example, a 13 year old does not have the capacity to marry in England, but does have that capacity in Nigeria (Northern Muslim Community).

The "lex fori"

The "lex fori" as the law of the forum which will usually be the state where the spouses have sought to make their matrimonial home. This state will usually have a clear and direct interest in the applications of its policies to regulate the nature of relationships permitted to confer the status of husband and wife within their territorial boundaries. It may also attempt to regulate the behavior of those who wish to cohabit within their territory although this may contravene privacy rights.

Discussion

There are serious problems of characterisation and the possibility of an incidental question in the Family Law field because of the strength of the prevailing attitudes and prejudices on sexual propriety. Hence, for example, given the increasing prominence given to the phenomenon of paedophilia, the issue of age in relation to sexual activity has come to represent a major issue for many Western states and, no matter what the claims of the "lex loci celebrationis" to be applied as the determinant of the validity of any alleged marriage involving young adults, the policies of the personal laws of the parties and the "lex fori" are often given greater prominence. Some think that these cultural responses to different customs are given impetus by an underlying lack of respect for people of different race, religion or ethnicity. Whereas traditionally the law is viewed as driven by the Doctrine of Comity and the principles of reciprocity, those who administer and apply the law are undoubtedly affected by local social or political pressures to disapprove some customs of "foreign" states.

Religious forms of marriage

Where a society permits worship by a given religion, and worshippers wish to marry according to the tenets of their religion, the state must decide whether that ceremony will be effective to create a valid marriage (i.e. the place of worship and the members of the relevant clergy are authorised by the state for the conduct of marriage ceremonies) or whether a civil ceremony will be required to create a marriage. For example, the Islamic form of marriage is a contract between the bride and groom (or their proxies) known as a "nikah". Some Islamic couples only go through a "nikah" ceremony and do not register the marriage with the civil authorities or go through a civil ceremony. When such a relationship breaks down, the wife is left without state protection that would normally be available if the marriage had been registered according to civil law. The situation is exacerbated if the husband refuses to grant a talaq and also refuses to make any provision. In states where there is no Sharia Court, the affected individuals' only recourse would be to the local civil courts, but jurisdiction would be difficult to invoke except under the parens patriae provisions to protect the best interests of any children. As to transnational marriages, there is no reason in principle why religious ceremonies effective under the "lex loci celebrationis" should not create marriages recognized as valid everywhere.

Customary law marriages

In many states, culturally separate communities have retained their own traditions and laws on the family. This creates a problem for developing states as they begin the process of establishing a centralized system of law. In South Africa, for example, the "Recognition of Customary Marriages Act" 1999 retrospectively recognizes as valid, all customary marriages so long as they are registered. Further, s2(3) of the Act provides that, if a person has entered into more than one customary law marriage, all valid marriages entered into before the commencement of the Act, are recognized. The Act similarly recognizes all customary marriages entered into after the commencement of the Act where the High Court approves a written contract regulating the future matrimonial property systems for marriages (both present and prospective spouses must be joined in the application). This is a major departure from the previous legal position because customary marriages being potentially or actually polygamous, were considered against public policy and were not recognized under the formal law. This reversal was due to a recognition that it was impossible to enforce the prohibition and due to the fact that wives usually consent to the polygamous marriage. Where a state has produced formal laws to control recognition, this will establish a general framework under which international recognition can be managed. Where there is no formal rule within the "lex loci celebrationis", a forum court could hear expert evidence on whether the marriage would be accepted as effective (see the public policy of "favor matrimonii" which creates a rebuttable presumption in favor of the validity of any marriage) but it will be difficult for the parties to justify their failure to comply with the local laws that unambiguously would have created a valid marriage.

Common law marriages

In some states, the legal acceptability of common law marriage is very limited. Some couples, whether because there are no local formalities relevant to them or because they have strongly-held prejudices against compliance with the local forms, decide to create a marriage either by a simple public exchange of vows ("per verbis inter praesentes"), or by habit and repute. Because the need for Comity between states requires respect for the legal systems, it is now very difficult to identify states with no local system for the celebration and registration of marriages, and even more difficult for the courts of one state to justify a decision to support the prejudices of two of its citizens against the laws of the second state. However, other states permit informal marriages to acquire legal status and, where this happens, there is no reason in principle why international recognition should not follow.

The age of marriage

Culture changes slowly. Prior to 1951, in Northern Ireland, a boy of fourteen years of age and a girl of twelve years of age could validly marry at common law. The setting of the age at fourteen years for a boy and twelve years for a girl represents a not uncommon world standard for marriage, but reflects a feeling that although individuals may have reached physical sexual maturity, there should be a limit requiring parental consent or prohibition (even with parental consent) until the individuals have reached an age at which they are deemed to have the capacity to take responsibility for their decisions on major life-changing commitments. This view of intellectual maturity has raised the age in Europe to sixteen years of age and also up to 18 years old in some places. But modern states must still confront the issue of age when couples claim the status of a married couple when married abroad. For example, less than twenty years after the law was changed in Northern Ireland, the English courts considered "Alhaji Mohammed v Knott" [1969] 1 QB 1. Here, a Nigerian husband had celebrated an Islamic marriage in Northern Nigeria with a 13 year old girl. Shortly afterwards the couple came to England and where they cohabited. A case was brought under §62 of the Children and Young Persons Act 1933 claiming that the girl was in need of care, protection, and control, and that she was exposed to moral danger under §2 of the Children and Young Persons Act 1963. The Nigerian form of marriage was effected by a simple contract between the parents or legal guardians of the bride and bridegroom. The bridegroom paid a dowry. Sometimes, but not always, the signing of the contract was followed by a religious ceremony and a marriage feast; and the bride was formally handed over to the bridegroom. There was no minimum age for the marriage of a girl, but it was unlawful for the bridegroom to live under the same roof or consummate the marriage until it was clear that the wife was sexually mature, which was conclusively presumed to be not less than the age of 9 and not more than the age of 15. The first instance court held that the girl was exposed to moral danger, and that a continuance of the association between her and the man, notwithstanding the marriage, would be repugnant to "any decent-minded English man or woman". On appeal, the Divisional Court held the marriage was recognized as valid. This and other cases of "child brides", one involving a 12 year old Iranian bride and the other involving a 13 year old Omani bride, caused some controversy in the United Kingdom and the Immigration Rules 1986 were introduced to bar persons under the age of 16 from entering the UK in reliance upon their status as a spouse. Nevertheless, for other purposes, such marriages will be recognized as valid so long as the parties had the relevant capacity under their personal laws and the ceremony was effective under the "lex loci celebrationis" to create a valid marriage.

Consent

In Western cultures, other than the age of consent, the issue of consent is also considered of fundamental importance and, if it is not freely given, it can prevent a valid marriage from ever coming into existence: see nullity. In Islamic law, a "nikah" contract is not valid if the parties do not consent, although there are differences in juristic opinion about exactly how the consent can be manifested. This supposedly lack of clarity has led some Western cultures to question the general morality of "arranged marriages", often stigmatizing the system as being open to abuse and sometimes leading to forced marriages. In the English case of "Szechter v Szechter", Sir Jocelyn Simon P. said that for duress to vitiate a valid marriage, it must be proved that:
*the will of one of the parties had been overborne by a genuine and reasonably held fear;
*this fear was caused by a threat of immediate danger for which the party was not himself or herself responsible, usually amounting to a threat of physical or fatal injury, or false imprisonment.The test requiring an immediate danger never matched the practical realities facing individuals where the consequences of a refusal to marry might not be immediate, but nevertheless serious. In "Hirani v Hirani" (1982) 4 FLR 332, the Court of Appeal considered the case ofa nineteen year old Hindu woman who was dating a Muslim man. Her parents told the petitioner that unless she married a Hindu of their choosing, she would be ostracized socially from her family and left to fend for herself. Under the circumstances, the Court agreed that the petitioner had acted without full consent in marrying her parents' choice of husband. Thus, it is for the courts of all countries to strike a balance between well-intentioned parental authority to arrange marriages in the face of a reluctant child, and unreasonable threats that would overbear the will of any reasonable person, while maintaining the trust of local communities whose cultures have included arranged marriages for centuries. As to transnational recognition, it will be difficult to disturb the validity of the marriage if no complaint of coercion was made around the time the ceremony was performed in the "lex loci celebrationis" or immediately the parties entered the state where proceedings were commenced. It would be more usual to use the local divorce system to terminate the relationship.

Consanguinity

In Christian cultures, the Biblical proscriptions contained in Leviticus 18 v6-18, are used as the basis for restricting marriage between persons who are deemed to be too closely related to each other. More generally, the restrictions fall into two classes:
*where the parties are related by blood (consanguinity); or
*where parties are related by marriage (affinity).The limitations based on consanguinity derive from a policy of practical eugenics and reflect the increased possibility that such marriages will produce children with a genetic defect due to the limitations on their combined gene pool. The limitations based on affinity, by contrast, are predominantly legal and social in origin. The rules relating to affinity reflect the need to minimise the prospects of familial jealousies and dysfunction by preventing the intermarriage of people already related by marriage. Difficult questions arise on whether an adopted child may marry his or her adoptive parents, or the natural children of the adoptive parents. No matter what legislative decisions are taken, there will always be citizens who wish to evade the application of the law. There will be no problem if they relocate and establish a matrimonial home in a state that allows their marriage. But any attempt to evade such laws by going through a ceremony in a state that permits the marriage and then returning to the original state (which will usually be their state of domicile, nationality or habitual residence) will fail, and may even expose the couple to the risk of prosecution for incest or an equivalent offense.

Polygamy

Polygamy may be polygyny (one man having more than one wife at the same time) or polyandry (one woman having more than one husband at the same time) and it has been practiced throughout history in almost all cultures and sanctioned by various religions where necessary to meet population or economic needs. For example, when disease, war or famine has reduced populations, the taking of several wives has been the solution to restoring population. In some economically poor areas where infant mortality is high but children are a vital source of labor to maintain the earning capacity of the family, polygamy provides more children. Yet, in more modern times, some Christian states despite the existence of polygyny in the Bible have defined marriage as the union of one man to one woman "to the exclusion of all others" and, in some cases, have criminalized bigamy or, as in Canada, have made polygamy an offense under the Criminal Code of Canada. Under s 293(a), everyone who enters into any form of polygamy or any "conjugal union with more than one person at a time" is guilty of an offense, and under s293(b), there is a separate offense for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage".

Other states refer to the current religious practices within their territories as the test for legal acceptability: for example, the "Marriage Law 1974" (no. 1/74) in Indonesia does not prohibit polygamy for those religions that allow it (i.e. Islam, Hinduism, Buddhism), but permits it with the consent of the existing wife or wives if:
*there is proof of sufficient financial capacity to maintain all spouses and children;
*there are safeguards that husband will treat his wives and children equally; and
*a court is satisfied that there are valid reasons for wishing to contract a polygamous marriage (e.g., that the existing wife is infertile, has an incurable disease, etc).The issue of consent can be difficult though if the wife is mentally ill.

The converse is to be found in the halakhah and the Talmud where the general principle is that, "a woman cannot be the wife of two [men] " (Kid. 7a and Rashi). For a wife, the term "kiddushin" implies her exclusive dedication to her husband and there can be no "kiddushin" between her and another man while the first "kiddushin" subsists. Any purported marriage to another man is thus formally invalid but, nevertheless, requires a "get" to terminate it. A married man may celebrate a second marriage (and any others) unless he has specifically undertaken to his first wife, e.g., in the "ketubbah", not to do so, or monogamy is the local custom. Thus, Ashkenazic Jews who live in Christian nations accepted a "takkanah" (a rabbinic law not deriving from the Talmud) banning polygamy in c. 1000 CE, while Sephardic Jews who live in Islamic societies have not followed this law.

Actually polygamous

At the time a secular court considers the validity of this marriage, there are already multiple spouses. In English law, for example, §2 Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abode with the result that any application from such a wife has to be considered in accordance with Paragraphs 278 to 280 of the Immigration Rules, which contain provisions to restrict settlement in most cases to one wife. But, for less controversial purposes, most states are willing to recognise actually polygamous marriages as valid so long as the parties had the capacity to enter into such relationships and the ceremonies were effective under the "lex loci celebrationis".

ame-sex marriage

In traditional language, a marriage is defined as being a relationship between a man and a woman which courts have tended to define in terms of biological sex rather than assumed gender identity. While several states have fully legalised same-sex marriages, and even more have expressed a willingness to consider allowing individuals of the same gender to enter into civil unions, the general trend is against according such relationships the cultural and religious "legitmacy" implicit in the heterosexual version of marriage.

But, on the issue of transsexualism, the European Court of Human Rights in "Goodwin v UK" and "I v UK" (July 2002) concluded that there is no justification for barring a transsexual from enjoying the right to marry. In "Bellinger v Bellinger" [2003] UKHL 21, (2003) Times, 11 April the English courts held that the non-recognition of change of gender for the purposes of marriage in s 11(c) of the Matrimonial Causes Act 1973 was incompatible with Convention rights. But the House of Lords did not consider that the issues raised in the case were suitable for determination by courts and left the matter for Parliament, which has now enacted the Gender Recognition Act 2004 and matches the majority of European states in permitting marriage in the adoptive gender role. The same rights may be allowed in Australia, Canada, and some other states.

References

*Shah, Prakash. "Human Rights and Immigration Law". (2003) Vol. 52 "International and Comparative Law Quarterly", 359-400.
*Sona, Federica. "Polygamy in Britain". [http://www.olir.it/areetematiche/104/documents/Sona_Polygamy_in_Britain.pdf]
*Formal Recognition of Customary Law: An Analysis of the South African Experience in Passing Legislation Recognising Customary Marriages. [http://www.cba.org/CBA/IDP/InterDev_PDF/Pillay_Paper.pdf]