Introduction

Marriage is a universal human institution which has formed the foundation of

the family throughout history. It usually means a voluntary union for life of one man
with one woman to the exclusion of others. While the traditions surrounding marriage
ceremonies, the rights and obligations of marriage, the way of choosing one's marriage
partner, and even who all are permitted to marry may differ from culture to culture. all
over the civilized world and in every legal system of the world, marriage is a very
important social institution. Whether considered as a sacrament or a contract, 1 marriage
gives rise to status. It confers a status of husband and wife on the parties to marriage
and it confers a status of legitimacy on the children of such marriage. Thus, the basic
difference between the marriage and any other contract is that while a commercial and
mercantile contract does not give rise to any status, marriage gives rise to status2.

Now a question may arise as to how a marriage between two interested parties
may lead to conflict of laws situation between laws of two different countries. For
example, Tom and Mary are a married couple in England. Although originally, Tom is
from France but he marries Mary who is from England. Now suppose they want to get
divorced, there could be a conflict of laws situation between French and English laws,
as to which law would be applicable. It has been similarly held by most authors and

1In western countries marriage is considered as contract, but Roman Catholic Church still insists that marriage is a sacrament.
Though Muslims consider it as a contract but in case of Hindus it is something in between contract and sacrament.
2 Paras Diwan & Peeyushi Diwan, Private International Law 237 (Deep & Deep Publications, New Delhi, 1998).

1
jurists that if a matrimonial dispute arises between parties to a marriage which are
nationals or citizens of two different countries or were domiciled in different countries
before the marriage or place of domicile were different.

Thus, every country in order to deal with this problem of conflict every country has
had to develop certain rules or laid down certain statutes which determines the laws of
the place would be applicable in case of a matrimonial dispute of this particular kind.

Now, in every system of law for the validity of marriage the fulfillment of the two
conditions is necessary:-

 Parties to marriage must have the capacity to marriage and have agreed to
marry each other with free consent and not under any sort of coercion or force.
This is in Private International Law, called the Question of essential or material
validity of marriage.

 Parties must have performed necessary ceremonies and rites of marriage, which
is, in Private International Law, known as Question of formal validity of
marriage.

Only that marriage will be valid which is both formally and essentially valid, and if
any of the two conditions are not satisfied or fulfilled, the marriage is void. In
distinguishing between matters regarded as essential and those of pure formality, a
test has been laid down R.H. Graveson, according to which, those matters which are
regarded as vital to the maintenance of an accepted standard in the matrimonial and
family relations of any given society, whether on the grounds of consanguinity,

2
 religion or otherwise, will be regarded as essentials of marriage, to be governed by
the personal law of each party; while the matters of less vital social interest, such as
the length of public notice to be given before the celebration of a marriage, the
number of witnesses whose presence is required at a ceremony, will be treated as
pure formalities, to be determined exclusively by the law of the place of celebration.8

Further, two principles need to be known before going on to the discussion about the
rules applicable in different countries on various matrimonial issues:

 Lexi Loci Celebrationis – The law of the place where a contract of marriage
is performed.3 For A French citizen marries B, an Italian citizen, in India, now in
case of any dispute which needs to be solved by the principle of Lexi Loci
Celebrationis, will be solved according to the Indian Law rather than French Law
or Italian Law, as the marriage was contracted or performed in India. The original
rule was that the validity of marriage was solely depended upon the law of the
place of celebration (Lexi Loci Celebrationis).10
“there is nothing in the Constitution or any other source that prevents a state from
not following the ‘place of celebration’ rule for recognizing marriages, but it
continues to be the rule followed in every jurisdiction.”

 Lex Domicilii – The law in force in country or place where a person is

domiciled, or the law of person’s domicile. For example, A and B, who are
domiciled in England, marry in France. But certain matrimonial dispute arises
which needs to be determined or solved according to the principle of Lex

3 Atul M. Setalvad, Conflict of Laws 13 (LexisNexis Butterworths Wadhwa, Nagpur, 2009).

3
 Domicilii, then the English Law will be applicable rather than French Law as
England was the place were both the parties were domiciled.

Formal Validity of Marriage

The term ‘formalities’ includes such questions such as whether a civil ceremony, or
any ceremony at all is required, the number of witnesses necessary, the permitted
hours during which the marriage can be celebrated, whether publication of marriage is
necessary, and so on.15 Now as a general principle, the formal validity of a marriage is
determined under the municipal lex loci celebrationis on the date of the ceremony (the
principle of renvoi does not apply unless it will refer to a law that will validate
themarriage), and the lex domicilii of either party will be irrelevant. This rule is simple
and easy to apply. It should be obvious to parties wishing to marry that they should
comply with the local formalities.4

English Private International system, the requirement that a marriage may be

formally valid by the principle of lex loci celebrationis is imperative, which admits no
alternative test. In the continental Europe, however, the test is facultative: the
requirement is that the marriage should be formally valid either by the lex loci
celebrationis or by the personal laws of the parties. Under the French law a marriage
which is solemnized outside France should be formally valid either under the law of
4 Nullity (conflict), available at: http://en.wikipedia.org/wiki/Nullity(conflict) (last visited on April 20, 2010).

4
 the place where it is celebrated or by the personal law of the parties. The same is the
position under the German Law. Countries like Greece and Malta lay down that
compliance with the personal law is necessary and obligatory, In Poland and Czech
Republic, however, if marriage is formally valid under the personal law of the parties,
then the marriage is valid, irrespective of the fact whether it complies with the lex loci
celebrationis.5 In China too, for the substantive conditions of marriage, the applicable
laws relate to the law of the place where the marriage takes place or the personal law of
the parties (or both).6 Likewise in Scotland, a marriage which is solemnized outside
Scotland should be formally valid under the law of the place where it is celebrated.7

Thus, it means that if the marriage is formally valid in accordance with the law
of the place where it took place then the marriage would be valid everywhere. If the
law of the place where the marriage is solemnized lays down that a marriage which
complies with the requirements of personal law of parties (such is position under the
Italian Law) is valid, then a marriage performed accordingly will be valid.

Position in England

 Lex Loci Celebrationis – In England it is a noted and a well-settled fact that the
marriage must satisfy the formal requirements of the lex loci celebrationis, it is a
view long held at Common Law. The leading modern authority in England on

5 Paras Diwan & Peeyushi Diwan, Supra note 7, at 266.

6Wang Hui, A Review of China’s Private International Law During the 30-year Period of Reform and Opening-Up (May 2009) (ASLI
Working Paper Series No. 002).
7The Law Commission and The Scottish Law Commission, Private International Law Choice of law rules in Marriage, Law Com.
No. 165 & Scot. Law Com. No. 105, 3 (July 01, 1987).

5
 this point is Sottomayor, otherwise De Barros v De Barros (No 1), where the
Court of Appeal held:
“The law of a country where the marriage is solemnized must alone decide all
questions relating to the ceremony by which the marriage is alleged to have been
constituted.”8

A marriage would be regarded as valid even if the form adopted by the parties
was in conformity with the law of the country where the marriage took place,
even if it was not a proper form by the law of the domicile of the parties; this has
been described by the Privy Council in that case as one question better settled
than any other in international law.9

 Locus Regit Actum – It is also a well established rule of English Private

International Law that a marriage to be formally valid must comply with the local
law – locus regit actum. A marriage which does not comply with the formalities
of local law is not valid. This rule means that if the marriage is formally valid in
accordance with the law of the place where it took place then the marriage would
be valid everywhere. If the law of the place where the marriage is solemnized lays

8
Sottomayor, otherwise De Barros v. De Barros (No 1), (1877) 3 PD 1, p 5. The court, which was really considering whether a
marriage solemnized in England between cousins, both domiciled in Portugal, was valid and held that it was not. In the past, at
Common Law, questions of capacity to marry were also determined by applying the lex loci celebrationis, and this rule was laid
down in this case.

9
Berthiaume v. Dastous [1930] AC 79, p 83. A decision of the Privy Council in an appeal from Canada,

where the question was whether a marriage by religious rite in France, without a civil ceremony required under French law,
would be recognised in Quebec in Canada where a marriage by religious rites alone would be valid, and it was held that it could
not be recognised.

6
 down that a marriage which complies with the requirements of the personal law
of the parties is valid, then a marriage performed accordingly will be valid.10

 Retrospective Legislation - This principle is so well recognized in English

Common Law that it has been held that English courts would recognize as valid a
marriage invalid by the lex loci celebrationis when performed but later,
retrospectively, validated in that country.11 The question arose in the case of
Starkowski v. AG,12 were the wife of a Polish domicile of origin entered into her
first marriage at a church in Austria in May 1945. At that time by German
marriage law, which was in force in Austria, a religious ceremony does not

constitute a valid marriage since a civil ceremony was required. In June 1945,
an Austrian decree was passed to the effect that religious marriages celebrated
between 1 April 1945 and date of the decree should be valid as soon as they were
registered in the Family Book. The House of Lords held that, where there had been
retrospective legislation which had the effect of validating an earlier marriage, the
balance of justice and convenience was clearly in favour of recognizing the validity
of such retrospective legislations. Accordingly, the first marriage was valid. But
according to Cheshire, there is a limitation attached to this principle i.e., the principle
should not apply if the formalities prescribed by the retrospective law were complied
with after one of the parties had married another person, or in cases where the
retrospective legislation takes effect after the marriage has been declared as invalid
by an English court.

10 Paras Diwan & Peeyushi Diwan, Supra note 7, at 267.

11 Starkowski v. Attorney General, [1954] AC 155, [1953] 2AJI ER 1272
12 Starkowski v. Attorney General, [1954] AC 155, [1953] 2AJI ER 1272

7
  Marriage by Proxy – In England marriage by proxy is recognized as valid and
the place where the marriage was performed is the place where the proxy was
present, and not the place where the proxy was appointed.

 Exception – In cases where it is not possible to comply with the formalities

prescribed by the local law, a different view is taken. This exception to the
requirement that the marriage must comply with the lex loci is only available if
there is insuperable difficulty, not merely that it is difficult or that a minimum
period of residence prescribed by the lex loci would involve parties having to
wait.13 If it is not possible to comply with the lex loci, any reasonable form
chosen by the parties would suffice to constitute a valid marriage. An example is
a marriage in Singapore between a Chinese woman and a Jewish man, both

British subjects, by a form of ceremony which was a composite between the Jewish
and Chinese forms, there being no form applicable in such cases; the Privy Council
upheld the marriage as a valid common law marriage.14

Position in Australia

Australia also follows the Common Law principle that a marriage must satisfy the
formal requirements of the lex loci celebrationis.

 Marriages by proxy will be recognised as valid if they are valid under the lex
loci

13 Dicey, Morris & Collins, Conflict of Laws 20-21 (Sweet & Maxwell Ltd., London, 2009).
14 Penhas v. Tan Soo Eng, [1953] AC 304.

8
 celebrationis.15

 Australian courts also recognise as valid a marriage performed according to

religious ceremonies of the parties even if the formalities prescribed by the law
of the place where the marriage took place were not complied with in
circumstances when it was not possible to do so because of the conditions
prevailing at the time. Where, however, compliance with the prescribed
formalities was not impossible, the marriage in some other form would probably
not be recognised as valid in Australia.

Position in China

Pursuant to the General Principles of the Civil Law of China,16 the applicable law for
a marriage between a Chinese citizen and a foreigner is also the law of the place
where the marriage takes place. Thus, if a Chinese citizen and a foreigner are married
within China,Chinese law is applicable; if a Chinese citizen and a foreigner are
15 Nygh & Davies, Conflict of Laws in Australia 24.1 (LexisNexis Butterworths, Sydney, 7th edn., 2002).
16Adopted at the Fourth Session of the Sixth National People’s Congress, and promulgated by Order No.37 of the president of
the People’s Republic of China on 12 April 1986, and effective as of 1 January 1987.

9
 married outside China, the applicable law is the law of the place where the marriage
takes place.

Position in India

 There seems to be only one decision of an Indian court on the subject, where the
question did not directly arise, and it was observed by a learned single judge that
formal validity would be governed by the lex loci celebrationis.17

 The Foreign Marriage Act 1969, provides that a marriage performed outside
India would be regarded as valid if it was performed in accordance with the law
of the country where the marriage was performed, thus implying that the test for
such validity was the lex loci celebrationis.18


As Indian courts tend to follow the rules of English law on most issues in
conflict of laws, it is probable that Indian courts would hold, as at Common Law
in England, that the formal validity of a marriage would be governed by the lex
loci celebrationis.

Essential Validity of Marriage

17 Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582.

18 The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23

10
Another major issue relating to choice of law in the context of marriage is the question
of which law governs capacity, otherwise known as the essential validity. This
question covers a wide range of issues, such as consanguinity (blood relationships),
affinity (relationships created by the virtue of marriage), re-marriage and lack of age.
As a general rule, capacity to marry is governed by the dual-domicile rule, but it is
also subject to certain exceptions.

The dual domicile or the double domicile rule stems from the traditional theory
that capacity to marry is governed by the ante-nuptial domicile of both the parties. Its
effect is that a marriage will be valid if it is so by the law of the domicile of each
contracting party immediately before the marriage. Clearly, this theory has certain
merits, simply because it tends to preserve equality between the parties by looking to
the law of the domicile of each of them. It must be noted, however, that there exists a
rival theory, which submits the question of capacity to the law of the intended
matrimonial home. Cheshire maintains that the capacity of marriage, and all other
questions of essential validity of marriage, should be governed by the law of the
matrimonial domicile. According to him, “The basic presumption is that the capacity
to marry is governed by the law of the husband’s domicile at the time of the marriage,
for normally it is the country of where the parties intend to establish their permanent
home. This presumption, however, is rebutted as it can be inferred that parties at the
time of marriage intended to establish their home in a certain country and they did in
fact establish it there within a reasonable time.”

11
This law of each party’s domicile has been aptly called “the proper law by which
capacity to marriage is to be tested.”19 It involves the two factors of space and
time,namely the law of what country and when, which is resolved in favour of the law
of the ante-nuptial domicile of each party at the time of their marriage.

Position in England

 In the past, English law regarded questions of capacity to marry to be governed

by the lex loci celebrationis. But it is now settled law that capacity is governed
by the law of the domicile of the parties, so that a marriage between cousins,
who could not marry each other by the law of their domicile, Portuguese law,
was not valid though celebrated in England, where there was no such incapacity.
 The British Law Commission has examined the issue and recommended
against any legislation on the ground that the present rule, coupled with the
approach of English Courts to uphold a marriage, if possible, provides the
flexibility which would be lost if some uniform rule was enacted by legislation.
Thus the ambiguity also gives wide powers to the judiciary, to let them decide the
conflict on the basis of principles of legal system in which they operate.
 Further, in few English decisions, it has been held that consent is governed by
the law of the domicile of the parties.20 Now, the question that arises is as to
which lex domiciIii has to be considered, of both parties or of the party whose
consent is in question. The consensus seems to be, though there is no decision on
the subject, that it should be the domicile of the person who is alleged to have
lacked consent.

19 By Sir Jocelyn Simon P., in the case of Cheni v. Cheni, [1965] P. 85, at 93. (Marriage between a Jewish Uncle and Niece).
20 The cases relied upon are Way v. Way [1950] P 71, [1949] 2 All ER 959 and Kenward v. Kenward [ 1951] P 124.

12
In Vervaeke v. Smith,21 where the question did not arise for decision, one of the Law
Lords has suggested that questions of what he called the essential validity of a marriage
should be determined by applying the law with which the marriage has the most real and
substantial connection.

Position in Australia

 Capacity to marry is governed by the law of the ante nuptial domicile of both the
parties.
 If parties are within the prohibited degrees as specified in the Australian
Marriage Act 1961, the marriage will not be recognised even if such a marriage
would be valid under the law of the domicile of either of the parties.
 If a marriage is performed outside Australia, and either party is domiciled in
Australia, a marriage will not be recognised if either party is below 18, the
minimum age of marriage prescribed by Australian law; if, however, both parties
are domiciled outside Australia, the marriage will be recognised provided that it is
valid by the law of the domicile of the parties and the parties are above.

Position in China

In China, a different law is being followed in relation to capacity to marriage. As per

the General Principles of the Civil Law of China,22 it follows the principle of lex loci

21 Vervaeke v. Smith, [1983] 1 AC 145, 166, [1982] 2 All ER 144.

22Adopted at the Fourth Session of the Sixth National People’s Congress, and promulgated by Order No.37 of the President of
the People’s Republic of China on April 12, 1986, and effective as of January 01, 1987.

13
 celebrationis, i.e., Chinese law regards the questions of capacity to marry to be
governed by the law of the place where the marriage takes place.61

Position in India

 In Y. Narasimha Rao v. Y. Venkata Lakshmi,23 the Supreme Court of India

observed, “In matters of status or legal capacity of natural persons, matrimonial
disputes, custody of children, adoption, testamentary and interstate succession
etc. the problem in this country is complicated by the fact that there exist
different personal laws and no uniform rule can be laid down for all citizens …
The law … tends to be primarily determined and influenced by social, moral or
religious considerations, and public policy plays a special and important role in
shaping it.”
 Statutes enacted in India also recognise the principle that questions of capacity
are governed by the law of the domicile. The conditions for a valid marriage are
set out in section 5 of the Hindu Marriage Act 1955, which applies to Hindus
domiciled in India, even if they are outside India. This is clear statutory
recognition of the rule that all questions of capacity are governed by the law of a
person's domicile.

 In India, under the Hindu Marriage Act, 1955, ‘any two Hindus’ can perform
their marriage, provided that the conditions laid down under the Act are fulfilled.
The Indian Courts would accord recognition to such marriages even if one of the
23 Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 3 SCC 451, at 458

14
 parties or both the parties to the marriage have no capacity to enter into
marriage true in case of Muslims, Christians, Parsi or Jew marriages performed in
India under the law of there respective communities. This is because in India, law
of marriage is essentially a personal law, in the sense that the governing law of

marriage is not the Indian Law or the state law but the law of the community to
which the parties belong.

 In a case of Parwatawwa v. Channawwa,24 where a man domiciled in

Hyderabad married a second wife, who was domiciled in Bombay, at a time when
a Hindu could contract a bigamous marriage in Hyderabad but not in Bombay, it
was held that the question related to capacity which was dependent on the
husband's domicile, and as he was not prohibited from contracting a second
marriage by the law of his domicile, the marriage was valid.

 In the case of Bhagwan Ghanshamdas v Charlotte Zingg,25 a Hindu man, whose

marriage had been dissolved under the Hindu Marriage Act 1955, married another
woman in Sri Lanka within a few months of the dissolution, it was held that under
section 15 of the Hindu Marriage Act 1955, as it stood then, a person could not

24 Parwatawwa v. Channawwa, AIR 1966 Mys 100.

25
Bhagwan Ghamshamdas v, Charlotte Zingg, (1959) ILR 1 Cal 4. Section 15 has been amended with

retrospective effect by the Marriage Laws (Amendment) Act 1976, and the amended section only bars a remarriage till the
time prescribed by s 28 for filing an appeal has expired, or until the appeal, if filed, is dismissed. The conclusion of the learned
judge that the marriage in Sri Lanka was void because the husband, under his personal law, lacked capacity, is not a good law
now.

15
 remarry within a year of the dissolution; the man, therefore, lacked a capacity to
marry which was governed by the law of his domicile.

Hague Convention: A Workable Solution or a Myth in itself

Hague Convention on the Celebration and Recognition of the Validity of Marriage to a

larger extent solves the problem of conflict of laws, and brings forth the law which is
to be applied in cases of disputes concerning the validity of marriage on the basis of
formal requirements of marriage. The Hague Convention in its article 226 quite clearly
recognizes the principle of Lexi Loci Celebrationis, which will determine the formal
validity of marriages in Private International Law.

Further, it also removes the ambiguity on the point that whether a state can deny to
enforce and recognize a marriage contracted outside on the ground of being opposed to
its public policy, article 527 and Article 1428 quite clearly lays down that a state, party

26 Article 2 - The formal requirements for marriages shall be governed by the law of the State of celebration.
27
Article 5 - The application of a foreign law declared applicable by this Chapter may be refused only if

such application is manifestly incompatible with the public policy (“ordre public”) of the State of celebration.

28
Article 14 - A Contracting State may refuse to recognise the validity of a marriage where such
recognition is manifestly incompatible with its public policy (“ordre public”).

16
to this convention, may refuse to enforce and recognize a marriage if it is opposed to
public policy of that state.

 But one of the limitation of this convention is that it does not contain any
provision on essential validity of marriage, which seems to be the most
ambiguous point in Private International Law in relation to validity of marriages,
which seriously undermines the importance of this convention, as its position
with regard to formal validity is more or less same in almost all countries, with
certain exceptions, but in case of essential or material validity of marriage it is
very unclear and underdeveloped.

 Another limitation to this convention is the number of parties to it, which are
only three in number. Since a Conventions’ credibility and applicability can be
judged only on the basis of number of countries party to it, thus, in the case of
Hague Convention, less number of parties seriously undervalues the applicability
and enforceability of this Convention.

17
 Conclusion
Since we can find out that both the principle of Lexi Loci Celebrationis and Lexi
Domicilii, have let to various problems, in almost all the countries, and even the Hague
Convention has not been able to come up with a workable solution which can solve all
the issues, which generally crop up while solving matters relating to validity of
marriage. These are various some of the suggestions which may help the countries to
come with a more effective solution to all the problems:-

 Like the Chinese law there should be not such distinction between formal
and essential or material validity of marriage, and both of them should be
governed by one single principle of conflict of law rules i.e. Lexi Loci
Celebrationis. This step would certainly reduce the ambiguity in law and it would
make it simpler to apply and to be understood by the common man, because every
man and women, in every country, should know the legal outcomes and
challenges of his/her marriage.

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  As in the case of contract, there is proper law of contract, so also in the case
of validity of marriage, there should be a concept of Proper Law of Marriage,
under which firstly, the law to be applicable will be that law which is specified by
the parties in the marriage deed or at the time of the registration; secondly, it
should be the law which can be inferred by the conduct of the parties or
according to the particulars filled by the parties during the registration of the
marriage; thirdly, since in many countries the registration of marriages is not
compulsory, so many people do not go for registration of there marriages, in such
a case it will be the law with which the parties had the most real and substantial
connection. This may end many of the problems and will also give judiciary wide
powers to decide the matter, on the basis notions of justice which they follow.

Bibliography

BOOKS

1. Cheshire & North, Private International Law, thirteenth edn,

2. S.R.Myneni, Private International Law, first edn,

3. Paras Diwan & Peeyushi Diwan,

E-BOOKS

1. Jaffey, Topics in Choice of Law (1996)

2. Cook, The Logic and Legal Bases of the Conflict of Laws (1942)

19
 3. Davie, The Breaking Up of the Essential Validity of Marriage Choice of Law
Rules in English Conflict of Laws’ (1994)

ARTICLES

1. Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35
MLR 571

2. CONFLICT OF LAWS-ESSENTIAL VALIDITY OF MARRIAGE, By Geoffery

Sawer, LL.M.,Barrister at law., senior lecturer in law at the University of
Melbourne.

20
21