CHARACTERIZATION
Characterization or classification of a given factual situation is one of the necessary
steps in the decision of a case which has a foreign element.
This topic will be divided into the following 3 topics;
1. Problems involved in Characterization
2. Theories of Characterization
3. Process of Characterization
1. PROBLEMS INVOLVED IN CHARACTERIZATION
Illustrations;
a) The immovable property of a deceased woman is situated in Sri Lanka. The
Sri Lankan Court is adjudicating on the matter of inheritance of immovable
property. The female was in a polyandrous marriage in Tibet which was recognized
under Tibetan Law. She has two husbands and three children as well as two
brothers.
Result- depends on how the Sri Lankan courts characterize polyandry. If they
accept it, the property will devolve on her husbands and children. If not, it wil be
inherited by her brothers.
b) An Indian domiciled Muslim who is already married goes to England and there he
married a German domiciled female in an English registry office. Later, the German
wife filed for declaration of nullity since the Muslim man was already married.
The issue lies, whether the English court recognizes polygamous marriages.
In Hyde v Hyde the English courts refused to accept polygamy.
In Sri Lanka and India under Muslim law polygamous marriages are recognized.
The present law in England follows the 1972 Matrimonial Proceedings
(Polygamous Marriage) Act, which accept polygamous marriages if entered into
in a country where Polygamy is recognized. However, the polygamous marriages
performed in UK are void.
, SOME GENERALLY ACCEPTED RULES IN PRIVATE INTERNATIONAL LAW
1. Lex domicile is the applicable law in Common Law countries regarding capacity of
parties (marriage or other contracts); [Sottomayer v De Barros- the Parties
(domiciled in Portuagal) were first cousins and later moved to England and got
married there. Based on the law in Portugal, marriage between first cousins is
incestuous and thus illegal. Therefore when they returned to Portugal their
marriage was considered null and void]
2. Formalities of contract are governed by lex loci celebrationis or lex loci
contractus; Berthiaume v Dastous
3. Immovable properties are governed by lex situs; Re Hoyles
However there are exceptions to this rule:
(i) Statute of Fraud was characterized as a procedural law [Leroux v Brown]. This
decision was not followed in Gibson v Holland and thereafter.
(ii) Statute of Limitation is a procedural matter, which position is accepted almost in
all Common Law countries;
(iii) The principle that marriage revokes the will is a matter pertaining to
matrimonial law and not to testamentary law; Whereas in French law, it is a matter
of testamentary law (Maltese Marriage case)
(iv) Whether marriage is void or voidable is to be determined according to lex fori
[De Reneville v De Reneville]
2. THEORIES OF CHARACTERIZATION
a) Characterization based on Lex Fori
According to Bartin, when a court is dealing with a question having a foreign
element, it should apply lex fori subject to some exceptions.
In the event the domestic law has no provision, it can use a legal system that
closely resembles the domestic law.
If the sovereign is willing to concede to that other law, it can be applied.
The exceptions to this rule are:
1) When the subject matter (movable or immovable) is located in a foreign
territory;
2) When the contract is by correspondence (mailing) then the law of that place
where the final document has arrived.
Criticisms of his theory
1) By applying Lex Fori totally, the laws which have connections with the subject
matter will be overlooked
Characterization or classification of a given factual situation is one of the necessary
steps in the decision of a case which has a foreign element.
This topic will be divided into the following 3 topics;
1. Problems involved in Characterization
2. Theories of Characterization
3. Process of Characterization
1. PROBLEMS INVOLVED IN CHARACTERIZATION
Illustrations;
a) The immovable property of a deceased woman is situated in Sri Lanka. The
Sri Lankan Court is adjudicating on the matter of inheritance of immovable
property. The female was in a polyandrous marriage in Tibet which was recognized
under Tibetan Law. She has two husbands and three children as well as two
brothers.
Result- depends on how the Sri Lankan courts characterize polyandry. If they
accept it, the property will devolve on her husbands and children. If not, it wil be
inherited by her brothers.
b) An Indian domiciled Muslim who is already married goes to England and there he
married a German domiciled female in an English registry office. Later, the German
wife filed for declaration of nullity since the Muslim man was already married.
The issue lies, whether the English court recognizes polygamous marriages.
In Hyde v Hyde the English courts refused to accept polygamy.
In Sri Lanka and India under Muslim law polygamous marriages are recognized.
The present law in England follows the 1972 Matrimonial Proceedings
(Polygamous Marriage) Act, which accept polygamous marriages if entered into
in a country where Polygamy is recognized. However, the polygamous marriages
performed in UK are void.
, SOME GENERALLY ACCEPTED RULES IN PRIVATE INTERNATIONAL LAW
1. Lex domicile is the applicable law in Common Law countries regarding capacity of
parties (marriage or other contracts); [Sottomayer v De Barros- the Parties
(domiciled in Portuagal) were first cousins and later moved to England and got
married there. Based on the law in Portugal, marriage between first cousins is
incestuous and thus illegal. Therefore when they returned to Portugal their
marriage was considered null and void]
2. Formalities of contract are governed by lex loci celebrationis or lex loci
contractus; Berthiaume v Dastous
3. Immovable properties are governed by lex situs; Re Hoyles
However there are exceptions to this rule:
(i) Statute of Fraud was characterized as a procedural law [Leroux v Brown]. This
decision was not followed in Gibson v Holland and thereafter.
(ii) Statute of Limitation is a procedural matter, which position is accepted almost in
all Common Law countries;
(iii) The principle that marriage revokes the will is a matter pertaining to
matrimonial law and not to testamentary law; Whereas in French law, it is a matter
of testamentary law (Maltese Marriage case)
(iv) Whether marriage is void or voidable is to be determined according to lex fori
[De Reneville v De Reneville]
2. THEORIES OF CHARACTERIZATION
a) Characterization based on Lex Fori
According to Bartin, when a court is dealing with a question having a foreign
element, it should apply lex fori subject to some exceptions.
In the event the domestic law has no provision, it can use a legal system that
closely resembles the domestic law.
If the sovereign is willing to concede to that other law, it can be applied.
The exceptions to this rule are:
1) When the subject matter (movable or immovable) is located in a foreign
territory;
2) When the contract is by correspondence (mailing) then the law of that place
where the final document has arrived.
Criticisms of his theory
1) By applying Lex Fori totally, the laws which have connections with the subject
matter will be overlooked
