Authors – Maitreyee Bhardwaj (Symbiosis Law School, Pune)

Rishabh Sharma (Jims School of Law, GGSIPU, New Delhi)

Editor – Yash Raj Gupta (Department of Law, CU)


Transformed by the advent of globalization, and the increasing movement of individuals and families across national borders, international family law has become a significant subject, bridging the traditional boundaries and private international law.

In the context of cross-border marriage and divorce litigation, however, courts in many countries are more reliant on traditional “conflict-of-laws” tools and approaches. In this era of globalization and liberalization, the transnational migration of people is on the rise. With the increasing number of foreign marriages and divorces, a significant rise in matrimonial disputes is taking place. Advances in the field of information and technology especially the internet, have brought to the fore new problems as far as the celebration of foreign marriages is concerned. As a result of these developments, it is not unusual to come across cases where husband and wife reside in different countries, possess domicile in a third country and their children reside in a fourth country. There are cases, where a citizen of this country marries, and either, one or other or both migrate to foreign countries. There are instances where parties having married in one country have been either domiciled or a resident in different foreign countries. So, the problem in the field of marriage and divorce has been confronted by courts of many countries. These circumstances lead to “conflicts of marriage laws” i.e conflict of law concerning marriage in a different jurisdiction. When marriage-related issues arise between couples with diverse backgrounds, the question as to which legal system and norms should be applied to the relationship naturally follow with various potentially applicable system frequently conflicting with one another. Each country indeed has its own culture, which regulates the inter-personal relationship in the field of family law. In such situations, there is a need for the standard choice of law rules for adjudicating on issues relating to marriage.

Validity of Marriage

The variation among one legal system to another creates a wide scope of differences when it comes to validity of marriage under choice of law. The issues raised in this arena are questions of;

a) nullity, void and voidable marriages.

b) the law of domicile.

c) the law of habitual residence and,

d) lex loci celebrationis.

The rules of international private law of many countries recognise that the lex loci celebrationis or law of the land where marriage was celebrated should determine the formalities for the validity of marriage. For example, if a person domiciled in Wales and a person habitually resident in Portugal, both belonging to Buddhism, go through a Buddhist marriage ceremony in Cambodia, where their respective families originated. However, they did not register this marriage ceremony with Cambodian authorities but they lived in a matrimonial home in Cambodia for a year. When they return to Wales, whether they are husband and wife will depend on the law of Cambodia because that is the most relevant law that will precisely decide whether the ceremony they went through and whether their failure to register the marriage will make their marriage valid or invalid. If the ceremony was sufficient enough to create a valid marriage under Cambodian law and there are no public policy issues raised under their personal laws of lex domicilii (laws of the domicile) or habitual residence, and under the lex fori, their marriage will be considered a valid one. The status and capacity of marriage is determined by either lex patriae (the law of nationality) or the law of habitual residence. The law of habitual residence has been the chief contributor of the Hague Convention and is used by many countries in determining the essential validity of marriage. It ensures the application of the system of law of that country with which the parties to the marriage have the closest connection. In the United Kingdom and some other Commonwealth countries, the ‘dual domicile test’ regulates matrimonial relationship. This rules implies that a marriage is valid when each of the parties has the capacity to marry according to their own respective domicile.

Common law courts, throughout the years, have observed that parties in a polygamous marriage or in a potential polygamous union cannot seek matrimonial relief from the common law. It was held in Hyde v. Hyde and Woodmansee that English law does not regonise polygamy as marriage. The court reiterated in Sowa v. Sowa that if the ceremony is polygamous, then it does not come under the word “marriage” and hence, is not valid under English law. However, other states such as Indonesia, does not prohibit polygamy for those religions that allow it but permits it with the consent of existing wife or wives.

Age also plays an important role in private international law as every country has its own minimum age for marriage. For example, the valid age (with parental consent) for marriage in Equatorial Guinea is 12 years for females and 14 years for boys, whereas it is 18 years and 21 years respectively in India. In Alhaji Mohammed v Kontt, a 27 year old man married a 13 year old girl, the ceremony was held in Nigeria and they were also domiciled in Nigeria. They both came to England where the husband was a student. The court held that this marriage was valid because, even though the wife was too young to be married according to English Law, she was old enough to marry in Nigeria where she lived originally. Therefore, such marriages will be recognised valid as long as the parties had the relevant capacity to marry under their personal laws.

A divorce, in general, is arduos and strenuous both mentally and legally for the soon to be ex-spouses. When combined with transnational boundaries, it becomes more difficult for the parties to terminate their marriage. The courts through various cases have decided that the place where the spouses have dwelled and called their home shall be the place where their marriage is terminated. Hence, the courts hold that it is lex domicilli or the laws of the domicile which will determine whether a marriage can be terminated by divorce. Domicile, here, means the idea of a permanent place of abode.

Lex fori

Lex fori is a Latin term which means a choice of law rule. If applicable, it provides that the law of jurisdiction or venue in which legal action is brought applies. When the court decides that it should, because of the principle of conflict of law, resolve a given legal dispute by reference to the law of another jurisdiction, the Lex fori govern procedural matters. This is a procedural stage in the litigation of cases involving the conflict of laws when it is necessary to reconcile the difference between the laws of different legal jurisdictions, such as sovereign states, federal states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of different jurisdictions in lawsuits arising from, say, family law, tort, or contract. The lex fori, or proper jurisdiction to adjudicate legal disputes, 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.

Customs and religions

In many states, culturally separated communities have retained their traditions. A developing modern state had to determine whether it should recognize such traditions as it was establishing a centralized system of law. For example, in South Africa, the Recognition of Customary Marriages Act, 1999 retrospectively recognizes as valid all customary marriages so long as they are registered. The act similarly recognizes all customary marriages entered into after the commencement of the act where High Court approves a written contract regulating the future matrimonial property system for marriages. Where a state has produced a formal body of law to control 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 but it will be difficult for the parties to justify their failure to comply with the local law that unambiguously would have created a valid marriage. Where worshipper wishes to marry according to the tenets of their religion, the state must decide whether that ceremony will be effective to create a valid marriage. For example, the government may decide whether a clergy has sufficient authority to declare marriage or whether a civil ceremony will be required. Alternatively, the certain government only considers a civil marriage celebration as legally binding and regard the religious ceremony as a “confirmation” of the civil marriage. 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.


Private International Laws or conflict of laws comes into play when there is an international dispute that needs to be resolved. Marriages that are transactional, deals with minority and majority of the parties, ceremonial significance and place of the ceremony play a vital role in private international law. Validity of marriage, jurisdiction, customs and matters of religion under private international law are extremely vast and can be entangling as every country has their own law that is shaped by years of traditions and cultures. These legal and cultural differences can be chaotic and often lead to conflict in matrimonial matters. Hence, there is a need for the unification and codification of choices of law in marriage so it is easy to settle disputes and validate or invalidate marriages as per the basic human rights recognised by international institutions.


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3. Thomas Baty, Capacity and Form of Marriage in The Conflict of Laws, YALE L.J., 444, 449-453 (1917)

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8. Sowa v. Sowa (1961) P. 70. (C.A.)

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