Marriage
*Exam: foreign marriage (marriage take place in aboard) - at least one person is English
Intro
P wants to know marital status of his 3 daughters, for marriage to be valid it must both be
formally and essential valid (Ld. Campbell, Brook v Brook).
a)
b)
c)
Formal – LLC
Parental Consent – On the fact, C’s parent does not consent to marriage and according to
France law the marriage is void, therefore the issue was on non-compliance of local law. In
Ogden v Ogden, in absent of parental consent, French husband married English domicile
wife in England. Under English, lack of parental consent does not affect the marriage. Court
states parental consent is an issue of formal validity which govern by ‘lex loci celebrationis’
and held English is law of country where marriage was celebrated, thus the marriage is still
formally valid. On the fact, marriage between R and P took placed at a registered office in
London, thus husband’s domicile is irrelevant and English law shall apply.
Age 16 to 18 – Since R/P was 16/17/18 at the time of marriage, under s.3 Marriage
Act 1949, parent’s consent to marry is requires if either one-party age 16 to 18.
However, such a failure to obtain parental consent will not invalidate marriage (s.48
Marriage Act 1949). Yet a duly lodge parental objection in Marriage Notice Book
may have capacity to invalidate marriage.
Age 19 and above - On the fact, R/P is age 20 at the time of marriage, thus under
English law there is no requirement to obtain parent’s consent to marry if the parties
attained age of 19 and above (s.3 Marriage Act 1949).
The decision was criticising that court should have characterised parental consent issue as
essential validity and use dual domicile test because the best law to determine whether one
can enter into a marriage relationship is one’s personal law, whereas the lex loci
celebrationis rule is merely to determine how the marriage should be celebrated.
Nonetheless, decision in Ogden has been confirmed in Lodge v Lodge, therefore
notwithstanding any criticism, P’s marriage is valid. In Lodge v Lodge, English husband
and French wife marriage in Scotland in absent of parental consent. Under Scottish law,
lack of parental consent does not affect the marriage. Court applying ‘lex loci celebrationis’,
the Scottish law and held the marriage is still formally valid.
Ceremony of Marriage - On the fact, marriage between R and P was performed by Nigel,
an American pastor and according to France law the marriage is void, therefore the issue
was on non-compliance of local law. The formal validity issues govern by ‘lex loci
celebrationis’, law of country where marriage was celebrated. On the fact, the marriage took
place in France, thus according to France law the marriage would be void.
In Birang v Birang, wedding in India took place in absent of bridegroom and represented
his photo. Since India law allowed for proxy marriages, the marriage held to be formally
valid. In Apt v Apt, wedding in Argentina took place in absent of English bride and
represented by a proxy. Since Argentinian law allowed for proxy marriage, the marriage
held to be formally valid. In McCabe v McCabe, wedding in Shana took place without
, appearance of couple. Since local custom accepted parents to exchanging dowry and a
bottle of gin, the marriage held to be formally valid.
Will UK court recognise foreign retrospective law? In Starkowski v AG, religious
marriage between Polish couple in Austria was formally invalid since Austrian law
insisted on civil ceremony. However, subsequently Austria law was amended with
retrospective effect to validate such a marriage. The parties subsequent acquire
English domicile, thus question before English court is whether foreign retrospective
law would be recognised? Lord Tucker states although foreign law was
retrospective, the consequence was favourable to parties and HOL give recognition
for such law. Our current fact is contrast to Starkowski, since retrospective law by
French government has annulled a previous valid marriage and its contrary to
English public policy as it has consequence of affecting sacred institution and tenet of
a family unit. Intervening with such an institution is legally and socially undesirable
and therefore, highly likely that English court will not recognise foreign retrospective
law in such circumstance. As such, Paula is still married to Juan and her marriage to
Richard becomes bigamous, thus void. Alternatively, Paula may argue that by not
recognising foreign law its defeat her legitimate expectation. Further, there is a
distinction between local and international public policy, France government may
have their own reason to pass such retrospective law, thus there is a need to
recognise comity. If English court were to recognise France law, Paula will be eligible
to marry Richard and their marriage would be a valid according to English law.
However, if compliance with local law cause insuperable difficulties or marriage was under
belligerent occupation (country occupied by foreign forces), English court can replace with
English Common Law marriage although parties are not English (Lord Hardwicke’s
Clandestine Marriage Act 1753). English Common Law marriage means presence of a
man and women, exchange of vows and solemnised by episcopal ordained clergy man ( R v
Millis). On the fact, first two requirements will satisfy, but since marriage was solemnised by
American pastor it will fail to prove the third requirement. However today, Penhas v Tan
Soo Eng has relaxed law on third requirement whereby marriage can be celebrated before
a layman. Thus, R and P satisfied all requirements for English Common Law marriage.
Civil war /State force kidnapped - In Taczanowska v Taczanowski, husband was
an officer of polish forces serving with British army in Italy and wife was a polish
civilian. The marriage did not comply with local law. Similarly, in Merker v Merker,
husband wife both are Polish and married while they were in prison. The marriage
took place in Germany and did not comply with local law. In this both case, court held
English Common Law replace the need to comply with local law as this was the
marriage under belligerent occupation. On the fact, the state forces kidnapped P is
deduce that there was civil war and not belligerent occupation. Thus, the exception
under belligerent occupation not apply and the marriage remain invalid by French
law.
UN peacekeeping force/nurse/war zone/Red-cross member - In Taczanowska v
Taczanowski, husband was an officer of polish forces serving with British army in
Italy and wife was a polish civilian. The marriage did not comply with local law.
Similarly, in Merker v Merker, husband wife both are Polish and married while they
were in prison. The marriage took place in Germany and did not comply with local
law. In this both case, court held English Common Law replace the need to comply
with local law as this was the marriage under belligerent occupation. On the fact, R is
working as nurse in war torn Bosnia. The ambit of Taczanowska remain uncertain as
to whether it covers other person in war zone such as Red Cross members. Perhaps
with broad interpretation in Preston v Preston, the answer would be yes. In Preston,
*Exam: foreign marriage (marriage take place in aboard) - at least one person is English
Intro
P wants to know marital status of his 3 daughters, for marriage to be valid it must both be
formally and essential valid (Ld. Campbell, Brook v Brook).
a)
b)
c)
Formal – LLC
Parental Consent – On the fact, C’s parent does not consent to marriage and according to
France law the marriage is void, therefore the issue was on non-compliance of local law. In
Ogden v Ogden, in absent of parental consent, French husband married English domicile
wife in England. Under English, lack of parental consent does not affect the marriage. Court
states parental consent is an issue of formal validity which govern by ‘lex loci celebrationis’
and held English is law of country where marriage was celebrated, thus the marriage is still
formally valid. On the fact, marriage between R and P took placed at a registered office in
London, thus husband’s domicile is irrelevant and English law shall apply.
Age 16 to 18 – Since R/P was 16/17/18 at the time of marriage, under s.3 Marriage
Act 1949, parent’s consent to marry is requires if either one-party age 16 to 18.
However, such a failure to obtain parental consent will not invalidate marriage (s.48
Marriage Act 1949). Yet a duly lodge parental objection in Marriage Notice Book
may have capacity to invalidate marriage.
Age 19 and above - On the fact, R/P is age 20 at the time of marriage, thus under
English law there is no requirement to obtain parent’s consent to marry if the parties
attained age of 19 and above (s.3 Marriage Act 1949).
The decision was criticising that court should have characterised parental consent issue as
essential validity and use dual domicile test because the best law to determine whether one
can enter into a marriage relationship is one’s personal law, whereas the lex loci
celebrationis rule is merely to determine how the marriage should be celebrated.
Nonetheless, decision in Ogden has been confirmed in Lodge v Lodge, therefore
notwithstanding any criticism, P’s marriage is valid. In Lodge v Lodge, English husband
and French wife marriage in Scotland in absent of parental consent. Under Scottish law,
lack of parental consent does not affect the marriage. Court applying ‘lex loci celebrationis’,
the Scottish law and held the marriage is still formally valid.
Ceremony of Marriage - On the fact, marriage between R and P was performed by Nigel,
an American pastor and according to France law the marriage is void, therefore the issue
was on non-compliance of local law. The formal validity issues govern by ‘lex loci
celebrationis’, law of country where marriage was celebrated. On the fact, the marriage took
place in France, thus according to France law the marriage would be void.
In Birang v Birang, wedding in India took place in absent of bridegroom and represented
his photo. Since India law allowed for proxy marriages, the marriage held to be formally
valid. In Apt v Apt, wedding in Argentina took place in absent of English bride and
represented by a proxy. Since Argentinian law allowed for proxy marriage, the marriage
held to be formally valid. In McCabe v McCabe, wedding in Shana took place without
, appearance of couple. Since local custom accepted parents to exchanging dowry and a
bottle of gin, the marriage held to be formally valid.
Will UK court recognise foreign retrospective law? In Starkowski v AG, religious
marriage between Polish couple in Austria was formally invalid since Austrian law
insisted on civil ceremony. However, subsequently Austria law was amended with
retrospective effect to validate such a marriage. The parties subsequent acquire
English domicile, thus question before English court is whether foreign retrospective
law would be recognised? Lord Tucker states although foreign law was
retrospective, the consequence was favourable to parties and HOL give recognition
for such law. Our current fact is contrast to Starkowski, since retrospective law by
French government has annulled a previous valid marriage and its contrary to
English public policy as it has consequence of affecting sacred institution and tenet of
a family unit. Intervening with such an institution is legally and socially undesirable
and therefore, highly likely that English court will not recognise foreign retrospective
law in such circumstance. As such, Paula is still married to Juan and her marriage to
Richard becomes bigamous, thus void. Alternatively, Paula may argue that by not
recognising foreign law its defeat her legitimate expectation. Further, there is a
distinction between local and international public policy, France government may
have their own reason to pass such retrospective law, thus there is a need to
recognise comity. If English court were to recognise France law, Paula will be eligible
to marry Richard and their marriage would be a valid according to English law.
However, if compliance with local law cause insuperable difficulties or marriage was under
belligerent occupation (country occupied by foreign forces), English court can replace with
English Common Law marriage although parties are not English (Lord Hardwicke’s
Clandestine Marriage Act 1753). English Common Law marriage means presence of a
man and women, exchange of vows and solemnised by episcopal ordained clergy man ( R v
Millis). On the fact, first two requirements will satisfy, but since marriage was solemnised by
American pastor it will fail to prove the third requirement. However today, Penhas v Tan
Soo Eng has relaxed law on third requirement whereby marriage can be celebrated before
a layman. Thus, R and P satisfied all requirements for English Common Law marriage.
Civil war /State force kidnapped - In Taczanowska v Taczanowski, husband was
an officer of polish forces serving with British army in Italy and wife was a polish
civilian. The marriage did not comply with local law. Similarly, in Merker v Merker,
husband wife both are Polish and married while they were in prison. The marriage
took place in Germany and did not comply with local law. In this both case, court held
English Common Law replace the need to comply with local law as this was the
marriage under belligerent occupation. On the fact, the state forces kidnapped P is
deduce that there was civil war and not belligerent occupation. Thus, the exception
under belligerent occupation not apply and the marriage remain invalid by French
law.
UN peacekeeping force/nurse/war zone/Red-cross member - In Taczanowska v
Taczanowski, husband was an officer of polish forces serving with British army in
Italy and wife was a polish civilian. The marriage did not comply with local law.
Similarly, in Merker v Merker, husband wife both are Polish and married while they
were in prison. The marriage took place in Germany and did not comply with local
law. In this both case, court held English Common Law replace the need to comply
with local law as this was the marriage under belligerent occupation. On the fact, R is
working as nurse in war torn Bosnia. The ambit of Taczanowska remain uncertain as
to whether it covers other person in war zone such as Red Cross members. Perhaps
with broad interpretation in Preston v Preston, the answer would be yes. In Preston,
