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Recognition of Marriage in Conflict of Laws Scenarios
Transcript of Recognition of Marriage in Conflict of Laws Scenarios
The Concept of Marriage and Formalities
Capacity and Consent
Public Policy and Examples
Formalities as the First Step
Formalities were separated from Capacity issues in the case of Brook v Brook (1861), 9 H.L.C. 193, 1 E.R. 703
What are Formalities?
Starkowski v AG (1952) 29 BYIL 479 – marriage may be validated by a subsequent change in the law.
Which Laws Determine Capacity?
Dual Domicile Approach
Dual Domicile Test
Each person must have capacity to enter this particular marriage under the laws of the jurisdiction where they are domiciled immediately before the marriage.
Intended Matrimonial Home Test
The capacity of the parties is determined by the domicile of the husband, as it is likely that the couple will choose to reside in that jurisdiction. This can be rebutted by evidence of an intention to establish a home elsewhere, and relocation to that place in a reasonable time.
Pros & Cons
How it Works
Intended Matrimonial Home Test
Pros & Cons
Absolute Incapacity vs Relative Incapacity
"Locus regit actum": Governed by the place where it is done
Payment of a Bride Price
Conducted by a registered or recognised person
1) A same-sex couple domiciled in Australia travel to New Zealand to get married. Their marriage is formally valid according to New Zealand law. Is it recognised in Australia?
2) A man domiciled in New Zealand married a Nigerian woman in Nigeria. According to Nigerian law, a formally valid marriage requires a bride price to be paid, which the man was not aware of. The man and his new wife move permanently to New Zealand. Will this marriage be recognised in New Zealand?
3) An Iranian man is in a potentially polygamous marriage, legal under the laws of Iran. Is this marriage recognised by New Zealand law?
4) An Iranian man in a potentially polygamous marriage, legally recognised in Iran, travels to England, where he marries a British woman. Is this marriage going to be legally recognised in England?
5) A transgender couple, domiciled and married in New Zealand wish to move to Australia. Will their marriage be recognised there?
No. In 2004 the Australian Marriage Act 1961 was amended to define marriage as a union between a man and a woman and say that any existing same-sex marriage from a foreign country is not to be recognised as a marriage in Australia. In most states, the couple will simply be recognised as a de facto couple unless there is recognition of ‘civil union’ type relationships in that state.
No. It does not comply with the formal requirements of the jurisdiction where it took place, so it is not valid. It may be subsequently validated if Nigeria change their laws regarding the requirement of a bride price.
Yes. Polygamous marriages cannot be performed in New Zealand, but are permissible if they are legally performed in a country that permits polygamy.
No. Although England will give recognition to polygamous marriages for several purposes, if a second marriage is conducted in England it is treated as bigamous.
Yes. Both the New Zealand and Australian Courts have recognised marriages involving a transsexual or transgendered person. In New Zealand this occurred in the High Court case of AG v Otahuhu Family Court, per Ellis J. In Australia, the Family Court held in AG v Kevin that for the purpose of the definition of marriage in the Marriage Act, a post-operative female was included in the understanding of the term ‘man’.
Ng Ping On v Ng Choy Fung Kam  SR NSW 782, 792.
Cheni v Cheni  P 85 1962 WL 22395 (PDAD)
AG v Otahuhu Family Court  1 NZLR 603
AG v Kevin (2003) 30 Fam LR.1
1) Extraterritorial privilege of Ambassadors to marry their own citizens according to their own law.
2) Marriage on the high seas celebrated according to the law of the flag.
3) "Common law marriage".
Hyde v Hyde (1866) LR 1 P&D 130.
The English Concept
Don't recognise the marriage even if it is formally and essentially valid because it would be against society's morals (eg, a relationship accepted almost universally as incestuous).
Or, recognise a marriage that is essentially invalid because of some discriminatory law of the domicile
Law of the Forum
Distant from reality?
Allows evasion of the laws of the domicile?
Can't tell at the time of the wedding