THE POLICY BASIS OF THE ENGLISH CONFLICT OF LAWS OF MARRIAGE
| Date | 01 November 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01340.x |
| Published date | 01 November 1972 |
| Author | T. C. Hartley |
THE
POLICY BASIS
OF
THE
ENGLISH
CONFLICT
OF
LAWS
OF
MARRIAGE
POLICY
THE
object of this article is to reassess the rules relating to marriage
in English conflict
of
laws in the light of the policy objectives
applicable
in
this field. The best way
to
begin is
to
make a list of
the policies that are thought to be relevant. The list that follows
has been derived mainly from decided cases in which the court has
expressly indicated the policies
it
is following but similar lists by
previous writers have also been taken into account.’
The policy
of
giving consideration to the con-
venience of coulrts and litigants almost always points in the direc-
tion of the law
of
the forum. Since foreign law must usually be
proved by experts,
it
involves delay, uncertainty and greater
expense.
For
these reasons, and because counsel and judges feel
more at home in their own system, there is a natural tendency to
prefer English law in the absence of compelling reasons
to
the
contrary. This policy takes effect most notably in the rule that
English law will always be applied in any case in which foreign law
is
not satisfactorily proved but
it
probably plays some part in those
rules w,hich apply the
lex
fori
to
quastions such as divorce.
In some cases judges are
concerned with the specific content
of
a foreign rule and refuse to
apply
it
because they feel
it
is unjust
or
immoral. (The standards
of justice and morality are, of course, English ones.) This is
usually done under the rubric of public policy, although public
policy is used
for
much wider purposes as well, such as giving effect
to
English domestic policy or disguising the abrogation of an old
choice of law rule.
3.
Reasonable expectations of the parties.
The policy of uphold-
ing the reasonable expectations of the parties as to the law govern-
ing their affairs is based
on
elementary justice and fairness.
It
is particularly important where the parties have acted on their
1.
Convenience.
2.
Intrinsic merit
of
the legal rule.
1
See Cheatham and
Fese,
I‘
Choice of the Applicable Law
”
(1952)
52
Col.
L.R.
959;
Letlar, Choice-Influencing Considerations in Conflicts Law
”
(1966) 41
N.Y.U.L.R.
267;
Yntema,
“
The Objectives,pf Private International
Law
”
(1957) 35
Can. Bar,,Rev.
721;
and
Hancock, Choice-of-Law Policies
in Multiple Contact Cases
(1943)
5
U.
of
Toronto L.R.
133.
Kahn-Freund,
The
Growth
of
Internationalism
in
English
Private
1nt::nationaZ
Law
(1960)
is
a
detailed study of one particular policy; TStterman, Functional Rases
of
the Rule
Locus
Regit
Actum
in English Conflict Rules
”
(1953)
2
I.C.L.Q.
27
is
a
policy study of
a
particular rule.
571
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