THE ESSENTIAL VALIDITY OF MARRIAGE IN THE ENGLISH CONFLICT OF LAWS
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00785.x |
| Date | 01 January 1978 |
| Author | A. J. E. Jaffey |
| Published date | 01 January 1978 |
THE ESSENTIAL VALIDITY OF MARRIAGE
IN THE ENGLISH CONFLICT OF LAWS
THE
case of
Radwan
v.
Radwan
(No.
2),l
in which a polygamous
marriage was held to be valid even though the wife was domiciled in
England
at
the time of the marriage, provides,
it
is hoped, sufficient
justification for a further discussion2 of the English choice of law
rules relating to the essential validity
of
marriage.
Since the laws of all countries encourage the status of marriage,
it is evident that choice of law rules as to the validity of marriage
should,
so
far as possible, be such that a marriage, duly celebrated
between willing parties, will not be held invalid without good reason.
The premise should be that an invalidating
rule
of
a
domestic system,
whether English or foreign, should
only
be applied to a given
international marriage if there is good reason for its application
to that marriage.
If
a marriage does not fall within the purpose of a
domestic invalidating rule, there
can
be no point in applying that rule.
If,
for example, the purpose
of
a
country’s invalidating rule is to
protect the public interest, it should not be applied
so
as to invalidate
a marriage which will not impinge
on
that country’s public interest.
On the other hand, even where a marriage does fall within the policy
of
a domestic invalidating rule, other considerations may nevertheless
require its ~alidation.~
To
be distinguished from invalidating rules which prohibit a
marriage, notwithstanding the parties’ desire that
it
should be
effective, are rules which entitle a party who is aggrieved by some
defect
in
the marriage
to
have it invalidated if he
so
chooses. In such
cases, because the existence
of
the marriage is objectionable to the
aggrieved party rather than to the policy
of
a country, different
considerations are relevant in determining the appropriate choice
of
law rules, as will be seen below.
Since the most recent decision is concerned with polygamous
marriage, it seems appropriate to start with that topic.
POLYGAMOUS
MARRIAGES
In what circumstances does an international polygamous marriage
fall within the purpose
of
a domestic rule which prohibits such a
1
[1973] Fam. 35.
2
Valuable recent discussions include Hartley,
‘‘
The Policy Basis
of
the English
Conflict
of
Laws
of
Marriage” (1972) 35 M.L.R. 571, and Stone,
“
Some
Aspects
of
Fundamental Rights
in
the English Conflict
of
Laws,” in
Fundamental
Rights
(ed.
Bridge
et
d.
1973). pp. 232, 246-247. The Hague Draft Convention
on
Celebration
and Recognition
of
the Validity
of
Marriages,
of
October 1976, appeared long after
this article was written. Justice could not be done
to
it by footnote comments,
especially as its approach is very different
from
the prevailing English principles
and the views expressed in this article.
3
For
a similar approach applied to contracts,
see
Jaffey,
“
Essential Validity
of
Contracts in the English Conflict
of
Laws” (1974)
23
I.C.L.Q.
1,
2,
8
el
seq.
38
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