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29 Dec

CONFLICT 1.7 MORE DISCUSSIONS ON MARRIAGE

MORE DISCUSSION ON MARRIAGE.

:: A marriage may be valid or invalid.

:: An invalid marriage may either be void or voidable.

:: In the eyes of the law, a void marriage is regarded as though it never occurred in the first place. For example where the parties are within the prohibited degrees of consanguinity (e.g. where a man marries his sister). While a voidable marriage is regarded as valid until a competent court declares it to be invalid.

:: Any defect in marriage should be classified into formal or essential invalidity for the appropriate choice of law rule to be applied. Such classification is done in accordance with the forum law.

:: Formal validity is governed by the Lex loci celebrationis (law of the place of celebration). Essential validity is governed by the personal law of the parities. (in Nigeria=domicile).

Such classification (into formal or essential) may not be straightforward in the cases of proxy marriages and parental consent. The court would then discretionarily decide whether or not it should classify the issue as formal or essential.

  • Proxy marriage: occurs where a party to a marriage is not present at the marriage ceremony. English law mandates the presence of both parties after which certain vows are sworn[1]. In Apt V Apt, an English domiciliary authorised her friend to go through her marriage ceremony on her behalf in Argentina. This was a proxy marriage which is not allowed in England (lex domicili) but proxy marriage was allowed in Argentina (the lex loci celebrationis). The problem then was, should we classify proxy marriage as essential validity or formal validity of marriage? The court classified this requirement as a mere formality thus applying Argentinian law and holding the marriage to be valid.
  • Parental consent: some people below certain ages are deemed unable to give mature consent. As such assent of parents needed. The courts have regarded parental consent as a mere formality. In Ogden V Ogden, a marriage was conducted in England between a male French domiciliary aged 19 and an English domiciliary aged 21. Under French law, consent of the parents was required. The English court however held this was a mere formality therefore English law applied.

It is pertinent to note that it all depends on the facts of the case and courts are not willing to invalidate marriages especially where they are entered into bona fide and in the absence of fraud, duress or misrepresentation.

WHAT WOULD BE THE DOMICILE OF COUPLES?

Where two people with different domiciles marry, what would be the proper test of belonging of the parties where the validity of their marriage is questioned?

:: The domicile of the husband may be different from that of the wife, both parties may also set up a home in a different country. E.g. Wale domiciled in Lagos marries Kate, domiciled in Paris, France. Wale and Kate then relocate to America and setup their matrimonial home there. What law would govern issues of their marriage?

:: The dual domicile doctrine posits that the law of each parties domicile at the date of marriage should be considered. As such their marriage may be invalidated where either or both of the parties are incapacitated under their respective laws.

:: Another school argues that the law of the community that is most affected by the marriage should be considered above the law of domicile of the parties which may be less affected/interested. The next one is:

THE INTENDED MATRIMONIAL HOME DOCTRINE.

Where the parties at the time of marriage intend to establish a matrimonial home in another country. When they actually do, the law of the place where the matrimonial home is/where the couples settled may govern.

In Frankie’s Estate V The Master, the couples planned to emigrate from Europe to settle permanently in South-Africa. They lived in South Africa for 15 years before the husband died. Held that their marriage was governed by South African Law.

SOME OTHER ISSUES RELATING TO MARRIAGES.

POLYGAMOUS MARRIAGES.

:: A polygamous marriage is generally regarded as a union between a man and more than one wife. This is allowed under Islamic Law and customary Law. It is however prohibited under statute.

:: A marriage may be:

  • Actually polygamous: where a second marriage has already been celebrated.
  • Potentially polygamous: where there is no second marriage but the marriage was conducted in a country or under a system of law that allows polygamous marriage. Meaning that in the future, the man can decide to marry another wife. E.g. An Islamic law marriage with only one wife is potentially polygamous. The husband can decide to marry another wife in the future.

A potentially polygamous marriage can be converted or mutated to a monogamous marriage where:

  • The parties convert to a religion that does not permit polygamy. For example marriage under Islamic law and the couple convert to Christianity.
  • Where the couple change their domicile to that of a country that does not allow polygamous marriage.

 

DOUBLE DECKER MARRIAGES: the common practice in Nigeria where parties marry under customary law and subsequently marry at the registry… Where the couples do their “traditional” and later marry at the registry-in Ohuchukwu V Ohuchukwu, the parties contracted Igbo customary marriage and later, when they were in England, they married under the Statute (Marriage Act). The court noted that this is a double decker marriage. There is nothing wrong with double decker marriages. It is just that the statutory marriage has overriding power over the former marriage.

 

[1] You already know the vows: Do you take John to be your…?

Isochukwu

Quite eccentric really

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