THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 19–1985)

REPORT ON PRIVATE INTERNATIONAL LAW ASPECTS OF

CAPACITY TO MARRY AND CHOICE OF LAW IN PROCEEDINGS

FOR NULLITY OF MARRIAGE

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1985

First published 1985.

CHAPTER 1 INTRODUCTION

In our Report on Nullity of Marriage,¹ published in 1984, we made detailed proposals for the reform of the law of nullity of marriage. These proposals covered such matters as the ground for annulment, bars to a decree, and the property effects of granting a decree. In that Report we were concerned with reform of the Irish law of nullity of marriage. In the present Report we are concerned with a related, but different, subject: the validity and nullity of marriage in private international law.² What we are now considering are marriages with an international dimension. For example, an Irishman habitually resident in Edinburgh may marry a New York woman who is habitually resident in Rome. The wedding takes place in London. Several questions may arise in relation to this marriage. By the law of which country or countries should the formal and essential validity of the marriage be determined? What court should have jurisdiction to annul the marriage? In what circumstances should a foreign nullity decree be recognised? In the present Report we examine the private international law aspects of capacity to marry and choice of law in proceedings for nullity of marriage. In our next Report (LRC 20–1985) we will examine questions relating to jurisdiction, recognition of foreign divorces and the Hague Convention on Celebration and Recognition of the Validity of Marriages (1978).

A point worth stressing at the outset is that, however

difficult it is to frame family laws that will operate satisfactorily in every case within one country, it is at present impossible to frame private international law rules on the validity and nullity of marriage which can be guaranteed to operate satisfactorily in every case.

There are several reasons for these limitations. There is a wide divergence among the laws of different countries as to the circumstances in which a marriage will be valid or null. Some countries categorise invalid marriages as either void or voidable; others have no concept of a voidable marriage; still others have a third category of “non-existent” marriage (Nichtehe or mariageinexistant).³ The effects of a decree of nullity also differ widely in different countries. In some countries, including our own, there is a high degree of retrospection; in others a decree of nullity in at least some instances operates prospectively.⁴

There is also a very wide disagreement internationally as to what private international law rules should apply to the subject of marriage.⁵ In some countries,⁶ the lex loci celebrationis predominates in respect of all or most issues of validity; in others there is agreement that the lex loci celebrationis should determine whether a marriage is formally valid,⁷ but disagreement as to which connecting factor – nationality, domicile or habitual residence –

should determine questions of essential validity of marriage.

Further divergences relate to choice-of-law in nullity proceedings. Some countries have well developed choice-of-law rules; others have paid little attention to this question. Widely differing approaches to the recognition of foreign nullity decrees also are part of the international scene today.

Against this international background of important differences in the substantive law of nullity of marriage and in the private international law aspects of the subject, it is obvious that, however much our legislators and judges may wish to overcome these differences, they simply cannot, of themselves, do so since they have no control over the approach to be taken in other countries.

As long as there are differences among the substantive and private international law rules of countries throughout the world, this problem will exist, to a greater or a lesser degree.

International harmonisation of private international law rules relating to marriage can go some way towards improving the position but again it is important to stress the practical limitations on progress. It is noteworthy that the Hague Convention on Celebration and Recognition of the Validity of Marriages (1978) goes only a short distance towards removing the differences among states on this subject.

A further and more intractable difficulty should be mentioned. Several competing policies must be balanced when formulating private international law rules for marriage. Some of these⁸ may be mentioned briefly.

1. Preventing “limping marriages”

There is much to be said in favour of international uniformity in relation to a person's marital status. Practical inconvenience and hardship can result for people who are treated as married according to the law of one country but not married according to the law of another.⁹ Nevertheless, discouragement of “limping marriages” is not the supreme policy goal: there may be situations where it would be quite unjust and inappropriate for the law of one country to be bound by a determination by the law of another country as to a person's marital status.

2. The favor matrimonii principle

It may be argued that our law should adopt an approach which would tend to uphold as valid marriages unions entered into by persons with a genuine matrimonial commitment. Too zealous an adherence to “black-letter” private international law rules at the expense of a sound regard to the human realities of the situation would be socially damaging and potentially unjust. The favor matrimonii principle reflects the policy that marriages “should be held to be valid unless there is some good reason to the contrary”.¹⁰

3. The legitimate expectations of the parties

It is undesirable that private international law rules relating to marriage should frustrate the legitimate

expectations of the parties to a marriage.¹¹ If a particular legal rule is applied to them in circumstances where they could not prudently have anticipated this, there are grounds for doubting the appropriateness of the outcome. Of course, parties whose marriages have an international dimension often make only rudimentary enquiries as to the position according to the law of the various interested states. It would not be sensible or fair to require of private international law rules relating to marriage that they satisfy the expectations of those who take no trouble to examine, and be guided by, these rules.

4. The policies of the forum

Private international law rules must, to a greater or a lesser extent, harmonise with the forum's domestic policies in relation to marriage. It is generally accepted, for example, that the forum has a strong interest in specifying the formal requirements for marriages celebrated within its jurisdiction: this is the basis of the principle that formal requirements are to be determined by the lex loci celebrationis. It is also accepted that considerations of public policy¹² should enable the forum to modify the application of otherwise determinative rules of private international law with regard to marriage, either by ignoring foreign prohibitions or other limitations on the right to marry (based on differences of race or ethnic origin, for example) which are obnoxious to the lex fori or by introducing limitations not contained in the foreign law where, for example, the foreign law would grant a capacity to marry to persons of the same sex.

Whether the domestic policies of the forum should play a further role in choice-of-law questions is a matter of debate. At present the lex fori is applied in some countries, in certain instances (it must be admitted) as a result of a lack of considered analysis. Even after considered analysis, fashioning the appropriate role of the lex fori is a difficult and uncertain task.

5. Predictability and practical convenience

In a matter of such practical importance as marriage there is a clear benefit in private international law rules being certain and easy to administer. The issue of the validity of a person's marriage may, of course, arise in judicial proceedings, where adequate evidence and sophisticated legal analysis are available. But the same issue arises far more frequently in everyday, non-judicial contexts, where customs officials, social welfare authorities and commercial institutions will be called on to reach a view on the marital status of persons claiming an eligibility that depends on their being validly married. If the private international rules relating to marriage are obscure and complicated, this may result in a considerable amount of practical difficulty for all concerned.

6. Appropriateness of Applicable Laws

We have already mentioned that the private international law rules relating to marriage should, so far as possible, harmonise with the legitimate expectations of the parties. More generally it may be argued that these rules should be appropriate, that is to say, that an objective bystander, on being informed that the law of a particular country was being applied to the parties, would agree that it was an appropriate law to be applied in the circumstances. It would be difficult, in the abstract, to defend the application of a rule that could not be said to be appropriate in the circumstances.

Nevertheless, translating this criterion of “appropriateness” into practice may cause considerable difficulties. In the United States, for example, section 283 of the Restatement of Conflict of Laws (Second) provides as follows:

Whatever problems may confront a court in the application of this “vague or flexible”¹⁴ rule, the practical difficulties

for immigration and social welfare officials are likely to be far greater than if a less flexible, but potentially less appropriate, private international law rule were applicable.

All these competing policy considerations make the task of reform a difficult one. Nevertheless, this task must be undertaken if some of the present uncertainty and potential for injustice is to be removed.

In Chapter 2 we set out the existing law on the subject, and in Chapter 3 we make proposals for reform. Chapter 4 contains a summary of these proposals.

CHAPTER 2 THE PRESENT LAW

Formal Validity¹

It has for long been accepted² that, as a general rule, the lex loci celebrationis is the appropriate law for determining the formal validity of a marriage. As Lord

Cranworth stated in Brook v Brook,³ in 1861:

This means, as a general principle, that if a marriage is valid according to the lex loci celebrationis, then it “is good all the world over”,⁴ even though it would not constitute a valid marriage in the country of the domicile of either of the spouses; conversely, if a so-called marriage is not a valid marriage according to the lex loci celebrationis, then “there is no marriage anywhere”,⁵ even in a case where the same marriage, if celebrated in the place of the parties' domicile, would have been a perfectly valid marriage.

In the Irish case of In re Estate of M'Loughlin⁶ it was clearly accepted that the lex loci celebrationis should apply to formal requirements. There the parties, both

domiciled in Ireland, went through a ceremony of marriage in Wales, celebrated by a Catholic clergyman. By the law of England and Wales at the time the marriage was void as the parties had wilfully consented to its performance when it neither complied with Lord Hardwicke's Act nor was performed in a Protestant church. Flanagan, J. accepted without serious question that the marriage was void for the purposes of Irish law. He relied strongly⁷ on the evidence that the parties themselves had admitted that the ceremony was null and void and had subsequently contracted another marriage with each other. He did not discuss the argument⁸ of counsel seeking to uphold the validity of the marriage, to the effect that Lord Hardwicke's Act was merely territorial, and that it did not bind parties domiciled in Ireland; on this argument the common law of England and Wales would continue to apply and the marriage would accordingly be valid.

Similarly, in Du Moulin v Druitt,⁹ the court accepted the general rule that the lex loci celebrationis should apply.

In Swifte v Attorney General for Ireland,¹⁰ the House of Lords, affirming the order of the Irish Court of Appeal,¹¹ held that section 1 of the statute 19 Geo. 2, c. 13 (Ir.) was not extra-territorial in its operation. That section provided that any future marriage

In Swifte, a marriage between a domiciled Irish Protestant and an Austrian Catholic, celebrated according to the rites of the Catholic Church in Austria, was held to be unaffected by the Irish provision. Earl Loreburn, L.C. said:

Earl Loreburn considered to be “perfectly right“¹⁴ Walker, L.C.'s endorsement¹⁵ of Porter, M.R.'s summary:¹⁶

It is worth recording Walker, L.C.'s clear statement that:

Similarly, Cherry, L.J. said:

Holmes, L.J. was:

This was because in his view “[t]he statutes on this subject were especially directed against the priest who celebrated the marriage. For him, as declared in the Act of 1745, it was a hanging matter; and that Act seems to have been levelled more against him than against the parties....”²⁰

WHERE IS THE LEX LOCI CELEBRATIONIS?

Determining where the marriage is contracted may in some instances raise difficulties. Discussion has centred around three particular types of case: (a) marriages by correspondence; (b) proxy marriages; and (c) marriages by habit and repute. Let us look briefly at each of these cases.

(a) Marriages by Correspondence

In the United States, there is some support for the view that a common law marriage may be contracted by the exchange of consents, without the necessity of the parties being physically present together, and that this exchange may be made by correspondence.²¹ Difficulties surround the question of where the contract is concluded in such circumstances.²² An issue also arises as to whether it

should suffice to comply with the law of the place where the contract is concluded (however that place is determined) or whether it should be necessary to comply with the requirement of the laws of both places.

Some commentators have argued in favour of the latter option. Wolff, for example, states:

Dicey & Morris are somewhat less certain. They consider that the English courts:

Dicey & Morris's latter suggestion appears to be that only one law should apply: in the case of an acceptance by letter, this would be the law of the place where the letter is posted. There is some support for this approach in the United States²⁵ and in some Continental European countries.²⁶

Pålsson has criticised this approach, however, on the basis that its reasoning:

(b) Proxy Marriages²⁸

Proxy marriages are permitted by several countries. Their characteristic feature is that

Pålsson states that:

Pålsson notes however that:

The argument in favour of this view is that it is the consent of the parties which makes a marriage, and that the appointment of the proxy is the key manifestation of that consent rather than the proxy's mechanical execution of his principal's orders. Nevertheless the practical problems which this approach would entail³² make it an unattractive solution.

(c) Marriages by Habit and Repute

Marriages by habit and repute present particularly intractable problems so far as the place of contracting is concerned. These spring from the fact that, of their nature, these marriages cannot be created instantaneously, and require the passage of some unspecified period of time before they are established. Pålsson states that:

The Lex Loci Celebrationis and the Problem of Time

In referring the question of formal validity to the lex loci celebrationis, it is not sufficient merely to state that the lex loci celebrationis determines the issue: this “lex” is “not a static conception, but is a changing body of rules”.³⁵ The choice of law rule must therefore not merely point to a particular legal system: it should tell us at what particular moment (or moments) in its development is such reference to be made.³⁶

At first sight, the answer may appear simple: the date the marriage is contracted would appear to be the obvious reference point. In the ordinary case, of course, this moment will be the one that counts; but what is the position where a country enacts retrospective legislation purporting to validate an invalid marriage, or to invalidate a valid marriage, already celebrated in that country? It is useful to examine each of these possibilities separately.³⁷

(a) Retrospective Validating Legislation

First we must consider the position where legislation in the place of celebration purports retrospectively to validate a marriage that was formally in valid at the time of celebration. In England, in Starkowski v A.G.,³⁸ in 1953, the House of Lords held that a marriage formally invalid by Austrian law (the lex loci celebrationis), but subsequently validated by retrospective legislation in Austria should be recognised as valid by English law. The House of Lords preferred to leave to another day the troublesome question as to the effect of retrospective legislation validating a formally invalid marriage on a second marriage contracted before the legislation, on the basis (then correct) that the

first marriage was invalid. On this question the English and Scottish Law Commissions have noted that:

As we shall see⁴¹ the problem is somewhat more complicated than may at first appear.

In the British Columbia decision of Re Howe Lewis,⁴² in 1970, retrospective legislation in Saskatchewan validating a marriage celebrated there according to Chinese custom was held effective in British Columbia. The Court was influenced by Starkowski but also by the federal status of Canada.

The earlier case of Ambrose v Ambrose (otherwise Harnish or Hornish),⁴³ in 1969, also from British Columbia, raised some fascinating issues. Briefly, the facts were as follows. In 1935, the petitioner, a man domiciled in British Columbia, married the respondent in Washington. At the time the respondent was still married to a Californian-domiciled man: a divorce was in the process of being obtained but had not been finalised. In the events that

transpired, the full divorce was not obtained until 1939. In 1958, benefitting from nunc pro tunc Californian legislation which came into effect around 1955, the respondent obtained in California a new decree of divorce in relation to her first husband. This decree was retrospective in its effect, extending to a time before the respondent went through the ceremony of marriage with the petitioner.

The petitioner successfully sought an annulment of his marriage with the respondent. Sheppard, J.A. (Sidney Smith J.A. concurring) noted that Starkowski related to formal invalidity, where the proper law was the lex loci celebrationis, rather than in the instant case, where the court was dealing with the personal law of domicile. As long as the respondent had remained married to her first husband, she retained a Californian domicile, but once she had been divorced in 1939, her Californian domicile had ended.

Moreover, Starkowski had not involved a situation where a second marriage had taken place in the interim period between the initially invalid marriage and its subsequent retrospective validation. This was an element on which Lords Morton, Cohen and Tucker had reserved their position. Sheppard, J.A. said:⁴⁴

The Lourdes Marriages⁴⁵

At this point it is useful to refer briefly to the “Lourdes marriages”. For a period in the 1950's, the practice developed of Irish couples marrying each other in Lourdes by a Catholic ceremony only. This was in breach of French law, which recognised only civil marriages as valid.⁴⁶ The practice was eventually halted in 1960 when the legal problems became known to the religious authorities. By then, thirty three such marriages had been celebrated.⁴⁷

According to Irish law, the validity of these marriages was in serious doubt. The general rule is that the lex loci celebrationis should determine the formal validity of a marriage, and here the law of France holds such marriages void.⁴⁸ Possibly, a liberal application of the “common law” exception could have upheld the validity of the

marriages, but there was a considerable doubt as to whether this would be so.

To remedy the position section 2 of the Marriages Act 1972 was enacted. It provides as follows:

Some points may be noted about this section. First, it purports to validate the marriages retrospectively. There is nothing particularly unusual about this type of legislation. There are examples in the State's domestic law,⁴⁹ and in the domestic and conflicts law of other countries.⁵⁰ An important feature of the legislation, however, is that it involves the lex patriae, rather than the lex loci celebrationis, validating marriages that were (or may have been) formally invalid according to the lex

loci celebrationis. This differs from the position in Starkowski, where the retrospective legislation was that of the lex loci celebrationis itself.

Section 2 of the Marriages Act 1972 is an interesting example of the constitutionally complex issues that retrospective legislation may raise. The effect of the legislation is to render valid marriages that were (let us assume) void. Many of the parties in all probability had become aware of the problem before the legislation was enacted. Apart altogether from the particular difficulty concerning cases where a party had contracted a second marriage in (justified) reliance on the invalidity of the first,⁵¹ it is necessary to consider whether the Constitution permits legislation to “foist” the status of marriage on a person who does not then wish to accept the status. In favour of the view that the legislation is unconstitutional it may be argued that the essence of marriage is the full consent of the parties at the time of the marriage, subject only to modification by the doctrines of approbation and ratification, both of which are under the substantial control of the parties concerned. In other words, a person who marries under duress has the option whether or not to approbate or ratify⁵² the marriage, and normally approbation or ratification cannot easily be foisted from outside upon the parties. But where legislation changes the status of a person who is not validly married, without his or her consent or acquiescence, then it may be argued that this wrongfully interferes with his or her right to marry⁵³ as well as (one may presume) the right not to marry, both in general and in respect of the particular partner concerned. Other constitutional rights, including those in relation to property and the rights of association and of privacy, might also be regarded as having been improperly disturbed.

It would have been possible for the validating legislation to have limited the retrospective validation to cases where both⁵⁴ spouses concurred, possibly manifesting their concurrence by an external act, such as registration, whether as a pre-condition, or as evidence, of their concurrence.

The argument in favour of the constitutionality of section 2 is that it gives retrospective effect to what must have been the presumed intention of the parties when marrying. It cannot credibly be suggested that any of them went through the ceremony of marriage with the intention of creating a void marriage. The legislation merely removes the invalidating effect of a technicality of an abstruse area of law which clearly was not in their minds at the time they married.

It seems fair to say that if, per impossibile, the legislation could have been enacted before any party had become aware of the problem of the invalidity of his or her marriage, then the legislation would have raised scarcely a constitutional ripple.⁵⁵ But since this did not in fact happen, it is necessary to consider the question of constitutionality complicated by the factors of detrimental reliance and of interference with justified expectations. Once a party became aware of the invalidity of his or her marriage then inevitably he or she must have given effect to a decision based on this information. In many cases, of course, the decision will have been to treat the marriage as valid, but in other cases there will have been conduct based on the premise of the invalidity of the marriage.

It is possible that a court would take the view that, in the large majority of cases, a party who availed himself or herself of the invalidity of the marriage and ceased to live with the other spouse was behaving in an inequitable manner, or at all events was a person whose “sharp practice” estopped him or her from making a serious constitutional case. But it is possible to consider cases where a spouse's conduct would not be inequitable, as, for example, where an Irish woman, deserted by her husband who divorced her in Canada, subsequently learnt of the invalidity of their marriage contracted in Lourdes. If on finding out this fact she (prior to the 1972 legislation) were to treat herself, in matters relating to property, for example, as a single woman, it would be difficult to treat her conduct as being other than sensible and fair.

The question becomes still more difficult where a spouse, having learnt of the invalidity of the marriage, has married another person before the retrospective legislation is enacted.⁵⁶ In the English decision of Starkowski v A.G.,⁵⁷ to which we have already referred, this issue was specifically left unresolved. But a passage from Lord Reid's speech is of particular interest in relation to the problem of the Lourdes marriages. He considered that there was:

Of course, in Ireland there was a long delay. It could perhaps be said that the parties could always have sought a decree of nullity of their marriage, but it is doubtful whether this is a sensible suggestion, in view of the high cost of such proceedings at the time, coupled with the fact that the parties might well have been influenced by the fact that under canon law, the marriage was valid.

Some other features of the section should be noted. It is only retrospective: thus parties marrying in Lourdes after the passage of the Marriages Act 1972⁵⁹ must take their chances without this statutory assistance. So far as the legitimacy of children is concerned the statutory provision is silent. But this does not necessarily mean that children born before then are illegitimate. It could be that, even before the legislation, the children were already legitimate, on the basis that the invalidity of their parents' marriage did not necessarily consign them to the status of illegitimacy.⁶⁰ On the other hand, if the children were illegitimate before the legislation, it may well be that the legislation would be interpreted as conferring legitimate status on them. Although it may be argued that merely changing the marital status of the parents does not of itself necessarily change the status of the children, it seems more probable that the courts would be disposed to interpret the legislation as impliedly conferring legitimate status on them; the latter result could also be reached by the alternative route of applying ordinary conflicts principles regarding legitimacy⁶¹ to the marriage so retrospectively validated.

A more difficult question concerns the issue of legitimacy of children of a Lourdes marriage where, before the Marriages Act 1972, the parents have married again (with other partners). If, as the body of academic opinion considers,⁶² the validity of the second marriage should not be disturbed, that might suggest that the children of the Lourdes marriage, if illegitimate before the Act, would have to remain so afterwards. The inherent unfairness of this outcome suggests that no court would be likely to endorse it. The reason why, exceptionally, the validating legislation does not affect the validity of the second marriage is that it is considered just and sensible to protect the parties to that marriage (and, we may presume, their children). Certainly, there is no suggestion that keeping the children of the first union illegitimate, when they would otherwise not be, serves any purpose so far as justice or social policy is concerned. One possible solution⁶³ would be to interpret the legislation as validating the Lourdes marriage up to the time the second was contracted, and as having no retrospectively “illegitimating” effect on the children of the first union. In view of the broad implications⁶⁴ for the parents which this solution would involve, it may not be an approach which would be accepted by the Courts.

It should be noted that Section 2 of the Marriages Act 1972, being a provision of Irish conflicts of law, cannot, of itself, confer validity on these marriages under the conflicts rules of other countries. Thus, for example, if the validity of one of these marriages were to be determined by an English court, the fact that the Irish legislation has been enacted would not override the normal rule that the lex loci celebrationis should be applied. But in applying the lex loci celebrationis, the English court would probably include a reference to the conflicts of law rules of France, and according to those conflicts of law rules it is possible, though far from certain, that the retrospective validation by the Irish legislation would be recognised. The case against such recognition, of course, is that these marriages offended against the French public policy of requiring a civil ceremony there, and, however much the Irish legislature may wish that these marriages should be

recognised, French law does not owe the parties concerned an obligation to set aside this important public policy. If such foreign retrospective legislation were to be recognised, it may be argued, why should not prospective legislation also be recognised? To do so would obviously damage French public policy on this issue.

It may, however, be argued that the human realities of the situation are so strong and unusual that French public policy could well bear the strain of recognising as valid thirty-three marriages celebrated on French soil by foreign nationals acting entirely in good faith, especially where their national legislature has gone to the trouble of enacting retrospective validating legislation on their behalf.

It should also be noted that, according to the conflicts of law rules of some other countries, the Lourdes marriages either were always valid or were retrospectively validated by the legislation. Article 7 of the Hague Convention on the Celebration of Marriages, 1902 provides that a marriage void as regards form in the country where it was celebrated shall be considered valid in the other countries adhering to the Convention if the form prescribed by the national law of each of the parties has been observed. This approach had already been adopted in Switzerland since 1891 and in Germany since 1900. It is interesting to note that in the German Democratic Republic the same approach prevails.⁶⁵

On account of the fairly widespread support among many European countries for the option of the national law of the spouses as an alternative to the lex loci celebrationis, it was probably, on balance, preferable that section 2 refers to nationality rather than the domicile. To have used domicile would have gained little so far as the conflicts of law rules of other countries are concerned, as well, perhaps, as alienating such support as may exist among the countries favouring the lex patriae. Moreover, in view of the background to, and the purpose of, the legislation, the test of domicile could well have proved a more arbitrary and less satisfactory one than nationality.

Retrospective Invalidating Legislation

We must now consider the converse case where legislation in the country of celebration purports retrospectively to invalidate a marriage for lack of due formality where the marriage was formally valid when contracted. There are no judicial authorities on this question in Ireland, England or Scotland. However, the “preponderance of academic opinion”⁶⁶ is against recognising the foreign invalidating legislation on the grounds of public policy.

Certainly the stress on the policy of favor matrimonii⁶⁷ would run against recognition. Thus no principle of legal symmetry would require our law to recognise invalidating legislation merely because it (quite rightly) recognises validating legislation.

Lex Loci Prevails Over Personal Law

It should be noted that the lex loci celebrationis prevails even in cases where the sole object of the parties in celebrating the marriage abroad was to avoid some irksome requirement of their personal law: this is the effect of Ogden v Ogden,⁶⁸Scrimshire v Scrimshire⁶⁹ and Simonin v Mallac.⁷⁰ But in such circumstances, it appears that a decree of nullity obtained in respect of the marriage in the country of their common domicile will be recognised⁷¹

subject to certain exceptional limitations.⁷²

Renvoi⁷³

When we speak of the lex loci celebrationis, do we mean the internal law of the country of celebration or do we mean the whole of that law, including its choice of law rules? There is no clear answer to this question in the Irish decisions. In the Estate of M'Loughlin⁷⁴ would appear to favour the internal law, since as we have seen, Flanagan, J. did not even address himself to counsel's argument that the formal requirements under the law of England and Wales were merely territorial and did not bind parties marrying in Wales but domiciled in Ireland.

In a number of English decisions, reference was made to the whole law.⁷⁵

Whether the renvoi doctrine may be used only to sustain a marriage is “not entirely clear”.⁷⁶ There is no clear authority on this question in this country or in England;⁷⁷ the academic commentators⁷⁸ consider that a marriage should be valid if it complies with the formal requirements of either the internal law of the lex loci or the law of the country denominated by the application of the renvoi doctrine, as required by the law of the country of the celebration. The effect of this approach, of course, is that a limping marriage may be created.

Exceptions to Application of Lex Loci Celebrationis

A common law marriage is not valid if contracted in England or Ireland: R. v Millis⁷⁹– a highly controversial and historically dubious decision. This case holds that in England or Ireland a marriage must be performed by an episcopally ordained priest or deacon; under canon law prior to the Council of Trent parties could marry each other without the necessity of a priest or deacon witnessing the marriage.⁸⁰

In two cases in the conflict of laws a common law marriage will be recognised. First, where the common law is in force in the foreign locus celebrationis. The common law was considered to apply to settlers in English colonial territories, but only to the extent that it was suitable to the local conditions. Thus, it seemed only reasonable that the presence of an episcopally ordained clergyman should not be required as a condition of the validity of marriages contracted⁸¹ in the early period of British colonisation before the Church had been established in outlaying areas – for example, in Australia many years ago.⁸² The same rule applied “where the crown by capitulatory agreement exercised extraterritorial jurisdiction over British subjects”,⁸³ as, for example, arose in China⁸⁴ and Singapore⁸⁵ earlier this century. In other cases, where compliance with the local formalities was prevented by some insuperable difficulty, the parties could also resort to the common law – i.e. marry whether with or without an episcopally ordained priest simply by pledging their troth to each other.

The English and Scottish Law Commissions, having referred to the requirement of the presence of an episcopally ordained clergyman, add:

What amounts to “insuperable difficulty”? In the early part of the 19th century, Lord Eldon held that a marriage between Protestants in Rome solemnized by a Protestant priest was valid since no Catholic priest would be allowed to perform the ceremony.⁹¹ Australian courts have upheld⁹² as valid marriages contracted in Germany in 1945 at a time when no registry offices were open and the registrars had left their posts, and in Russia in 1942 as the German army advanced. In England for some years from 1957 the courts

went very much further, taking a far more lax view of when the test of insuperable difficulty had been fulfilled. In Taczanowska v Taczanowski,⁹³ the English Court of Appeal held that the doctrine locusregitactum rests on the presumption that parties who marry in a foreign country intend to submit themselves to the local law so far as formalities are concerned; if such is not their intention, the presumption is rebutted and they are free to fall back on the common law. The court considered that there is often no submission by a member of the military forces in the occupation of a country and such was the case in Taczanowska. The parties were Polish nationals and domiciliaries. The husband was serving in the Polish army and he married in Italy in 1946, the ceremony being performed by a Polish priest but not in compliance with Italian law because the relevant articles of the Italian civil code were not read to the parties and the marriage was not recorded in the register of marriage. The marriage would have been valid under Italian private international law if it had complied with the law of Poland, the national law of the parties; but under Polish law the marriage was invalid. The marriage was upheld by the Court of Appeal. Commenting on the decision, Cheshire & North⁹⁴ say:

English law went still further in Kochanski v Kochanska.⁹⁵ There Sachs, J. upheld the validity of a marriage celebrated by Polish nationals, occupants of a displaced persons' camp in Germany, which did not comply with the formal requirements of German law. Neither party to the marriage was a member of the armed forces of occupation, nor was it impossible to comply with the local law. Nevertheless the marriage was held valid because:

The central principle endorsed by Kochanski v Kochanska was that parties might or might not at their option submit to the lex loci celebrationis; if they did not so submit, then the common law was applied. The same principle was applied in Lazarewicz v Lazarewicz⁹⁷ in 1962.

Cheshire & North object strongly to this general principle of submission. They argue along the following lines.

First it is not supported by authority. It would be wrong to conclude from the judgment of Sir Edward Simpson in Scrimshire v Scrimshire⁹⁸ that the judge was implicitly supporting a general principle of submission, and the great volume of explicit judicial authority is that the effect that the lex loci celebrationis applies imperatively rather than at the option of the parties.

Secondly, the principle of submission would introduce an intolerable degree of uncertainty into the law since it would in each case be necessary to find out what was the express or presumed intention of the parties on the matter. (Moreover, it may be asked, what law would apply in cases where the parties differed among themselves as to intention?)

Thirdly, the idea that the English common law should be the natural substitute for the lex loci celebrationis strikes Cheshire & North as being very curious:

In Taczanowska v Taczanowski,¹⁰⁰ Hodson and Parker, L.JJ. rejected the law of domicile in such circumstances by pointing (somewhat unconvincingly) to the problem raised by the two spouses having different domiciles – a difficulty which has not proved insuperable to the rules relating to capacity to marry. It is worth noting that in Maksymec v Maksymec,¹⁰¹ Myers, J. had resolved the problem of differing domiciles by holding that:

Of course this approach would have no appeal today; but that is not a reason for rejecting the application of the test of domicile (or other factor, such as habitual residence), without any trace of sex discrimination, rather than the English common law.

In the decisions of Merker v Merker,¹⁰² and Preston v Preston,¹⁰³ the English courts have adopted what Cheshire & North describe as “a less dangerous” approach. In Merker v

Merker, Simon, P. held that the lex loci celebrationis should be subject to exception only in respect of marriages within the lines of a foreign army of occupation or of persons in a strictly analogous situation to the members of such an army, “such as members of an organised body of escaped prisoners of war”.¹⁰⁴ In Preston v Preston¹⁰⁵ a similar interpretation was suggested, somewhat more ambiguously.

Australian decisions have provided some helpful discussion. In Sarenis v Sarenis and Szmeck,¹⁰⁶ Mayo, J. said:

He continued:

In Fokas (orse Milkalauskiate) v Fokas¹⁰⁹ it seemed to Napier, C.J. that:

Napier, C.J. was not an unqualified supporter of this approach and was well conscious of its limitations. He was doubtful as to whether a first marriage so recognised would support a charge of bigamy if either party married a second time in South Australia. (This, of course, is not of any particular concern to the mainstream of conflicts analysis.) Moreover it seemed to him that:

He also noted the problem of legitimacy of the children, apparently taking the view that the legitimate status of the children would depend on the “per subsequens matrimonium” legislation of the particular country concerned.

In the New South Wales decision of Maksymec v Maksymec,¹¹¹ in 1954, Myers, J. said that he did:

But if the English common law is not to apply, what law should govern the formal validity of the marriage where there is no available lex loci celebrationis? Myers, J. considered that the law of the domicile should control, on the basis that:

This approach has received some academic support,¹¹³ but there is also much judicial and academic¹¹⁴ opposition to it.

Marriages celebrated on the high seas present more difficulties. In the Irish decision of Du Moulin v

Druitt,¹¹⁵ a marriage celebrated between a woman stowaway and a soldier on board a troop ship headed for Australia was held void (in the absence of a clergyman), the court holding that the marriage was not one of necessity since the vessel would be putting in at places where a clergyman would be available.

The Foreign Marriages Act 1892

We must now consider the possible relevance of the general provisions of the Foreign Marriages Act 1892.¹¹⁶ This Act applied to Ireland. After the establishment of the State, it could be argued that the Act should continue to apply, by virtue of section 3 of the Adaptation of Enactment Acts 1922, which provides that, for the purpose of the construction of any British statute, the name Ireland “whether used alone or in conjunction with the expression 'Great Britain' or by implication as being included in the expression 'United Kingdom' shall mean Saorstát Eireann.” As against this, it could be argued that the Act, of its nature, was not susceptible to modification through interpretation and that it does not apply to Ireland. This view is the one that has commanded support in official circles, since there are no procedures for foreign marriages to be performed by “marriage officers” or army chaplains or officers.

It is useful to examine the provisions of the legislation, as a guide to our consideration of the broader issues raised by requirements of formal validity of marriages with an international dimension. Section 1 of that Act provides that:

“Marriage officers” are any officers authorised by a Secretary of State by authority in writing (referred to as a marriage warrant) and any officers authorised under marriage regulations made pursuant to the act¹¹⁷ to act as marriage officers without any marriage warrant.¹¹⁸ The Act empowers a Secretary of State to authorise any of the following persons to be a marriage officer:

The Act provides for the making of marriage regulations covering several aspects of the scope and administration of the Act. Most important is the power to make regulations:

Section 19 reflects the same policy. It provides that a marriage officer is not required to solemnize a marriage, or to allow one to be solemnized in his presence, if in his opinion the solemnization would be inconsistent with international law or the comity of nations.

Dicey & Morris observe, in relation to section 19:

It has, however, been argued¹²⁴ by the English and Scottish Law Commissions that this provision would appear designed to present limping marriages. They base this interpretation on the fact that regulations¹²⁵ made in 1970 under section 21 of the Act prevent a marriage officer from solemnizing a marriage unless satisfied (inter alia) that the authorities of the foreign country will not object to the solemnization and that the parties “will be regarded as validly married by the law of the country to which each party belongs”.¹²⁶ Of

course, regulations made nearly 80 years after the Act came into force and nearly half a century after Ireland gained its independence can, of themselves, throw little light on the meaning and scope of the provision, but the terms of the 1970 regulations do seem to provide reasonable substance to the notion of “consistency with international law and the comity of nations”.

The Act sets out provisions, similar to those in the Marriages (Ireland) Act 1844, the Matrimonial Causes and Marriage Law (Ireland) Amendment Acts 1870 and 1871 and the Marriages Act 1972 concerning such matters as the requirement of giving notice,¹²⁷ obtaining consent to marry¹²⁸ and the laying of caveats.¹²⁹ Each of the parties, before the marriage is solemnized, is required to appear before the marriage officer and make an oath to the effect that he or she believes that there is not any impediment to the marriage “by reasons of kindred or alliance, or otherwise”,¹³⁰ that both of the parties have had their usual residence within the district of the marriage officer for the past three weeks,¹³¹ and,

If no impediment to the marriage is shown to the satisfaction of the marriage officer, and the marriage has

not been forbidden “in manner provided by this Act”,¹³³ then, fourteen days after notice of an intended marriage has been entered, the marriage may be solemnised.¹³⁴ Section 8(2) provides that:

Where the marriage is not solemnized according to the rites of the Church of England, then in some part of the ceremony, and in the presence of the marriage officer and witnesses, each of the parties must make a declaration (in words specified by the Act)¹³⁶ that he or she does not know of any lawful impediment why he or she may not be married to the other party and each (again in words specified by the Act)¹³⁷ must call on those present to witness that each is taking the other to be his or her lawful wedded wife or husband.

After the marriage has been solemnized, “it shall not be necessary, in support of the marriage, to give any proof of the residence for the time required by or in pursuance of this Act of either of the parties previous to the marriage, or of the consent of any person whose consent thereto is required by law, nor shall any evidence to prove the contrary be given in any legal proceeding touching the validity of the marriage”.¹³⁸ Moreover, once the marriage

is solemnized “it shall not be necessary in support of the marriage, to give any proof of the authority of the marriage officer by or before whom the marriage was solemnized and registered, nor shall any evidence to prove his want of authority, whether by reason of his not being a duly authorised marriage officer or of any prohibition or restriction under the marriage regulations or otherwise, be given in any legal proceeding touching the validity of the marriage”.¹³⁹

Section 22 deals with the validity of marriages solemnized “within British lines”. It declares that all such marriages solemnized by any chaplain or officer or “other person officiating under the orders of the commanding officer of a British army serving abroad are to be “as valid in law as if the same had been solemnized within the United Kingdom, with a due observance of all forms required by law”.

Section 23 provides that:

The failure to comply with the provisions of the Act will thus not invalidate a marriage that is valid according to the lex loci celebrationis or a marriage falling within the exceptional cases (where the use of the local form is impossible¹⁴⁰ or the “belligerent occupation” category).

Capacity to Marry¹⁴¹

Assuming that the parties comply with the formal requirements of the lex loci celebrationis,¹⁴² we must now consider what law or laws should determine the essential requirements for marriage. Until about the middle of the nineteenth century, courts¹⁴³ applied the lex loci celebrationis to all aspects of the validity of marriage – formal and essential. In 1861, however, a new approach was adopted, somewhat unclearly, by the House of Lords in Brook v Brook.¹⁴⁴ In that decision Lord Campbell L.C. said:

As may be seen, this statement of the new approach adopted by the House of Lords was ambiguously expressed. It could mean that the essentials of marriage must comply with the law of the country or countries in which the parties are domiciled at the time of the marriage, or it could mean that the essentials of marriage should be determined by reference to the parties' contemplated matrimonial domicile.

In Ireland, the reported decisions favour the former approach, which is generally referred to as the “dual domicile” test. We will examine these decisions in detail below,¹⁴⁵ but first we will consider briefly the position in other common law jurisdictions.

In England “the balance of authority”¹⁴⁶ also supports the “dual domicile” test. This test is not a cumulative one. It is sufficient that each spouse should have capacity to marry according to the law of his or her domicile at the time of the marriage; it is not necessary that he or she should also pass the test of the law of the other party's domicile.¹⁴⁷

In Mette v Mette,¹⁴⁸ in 1859, Sir Cresswell Cresswell held void a marriage contracted by a naturalized domiciled Englishman with his deceased wife's half sister, domiciled

in Germany, in breach of English, but not German, law. He said:

In Re Paine,¹⁵⁰ in 1939, Bennett, J. accepted that this statement of the law was consistent with Dicey's statement that a marriage is valid when “each of the parties has, according to the law of his or her respective domicile, the capacity to marry the other”.¹⁵¹

In Pugh v Pugh¹⁵² in 1951, Pearce, J. applied the antenuptial domicile test. He said:

He considered that Brook v Brook and Mette v Mette“show that the law of domicile is the law which regulates the essentials of the marriage ....”¹⁵⁴

In the Court of Appeal decision of R. v Brentwood Superintendent Registrar of Marriages, ex parte Arias,¹⁵⁵ in 1968, Sachs, L.J. observed that:

R. v Brentwood Superintendent Registrar of Marriages, ex parte Arias is a decision that is of some significance in the development of the Irish law on the subject, as shall be mentioned.¹⁵⁸

In Padolecchia v Padolecchia,¹⁵⁹ in 1967, Sir Jocelyn Simon, P. said:

In Szechter (orse. Karsov) v Szechter¹⁶⁰ in 1970, Sir Jocelyn Simon, P. said:

Moreoever, in Way v Way,¹⁶¹ Hodson, J. said:

We must now refer to the degree of judicial support¹⁶⁵ for the “intended matrimonial home” test. In De Reneville v De Reneville,¹⁶⁶ there were some obiter statements approving of this test by Lord Greene, M.R.:

And Bucknill, L.J. said:

In Kenward v Kenward,¹⁶⁸ Denning, L.J. (in the words of Cheshire & North) “affirmed, with no ambiguity, that the 'substantial validity' of a marriage contracted between persons domiciled in different countries is governed by the law of the country where they intend to live and on the basis of which they have agreed to marry”.¹⁶⁹

In Radwan v Radwan (No.2),¹⁷⁰ in 1972 Cumming-Bruce, J. had to consider whether a woman's capacity to enter into a polygamous marriage abroad was governed by the law of her domicile at the time of marriage, or by the law of the country of intended matrimonial residence. He favoured the

latter approach. This decision met with much criticism. Morris & North have observed that:

The English and Scottish Law Commissions have said in relation to Radwan:

The Commissions noted that Cumming-Bruce, J. was careful to limit his decision to capacity to contract a polygamous marriage. They add:

The Commissions consider that in the light of the conflicting authorities on the question, “the matter cannot be regarded as conclusively settled”.¹⁸⁰ In a footnote they add:

In Lawrence v Lawrence,¹⁸² the Court of Appeal did not resolve the question of capacity to marry. The issue concerned the validity of a second marriage contracted after

a divorce which was recongised in England but not in Brazil, the country of the divorced party's domicile at the time of both the divorce and the second marriage.

None of the members of the court expressed a final preference as between the general tests of ante-nuptial domicile and intended family home, since they were prepared to decide the case on narrower grounds.¹⁸³ Ackner, L.J. acknowledged that “[t]he traditional and still prevalent view is that the capacity to marry is governed by what may conveniently be called the dual domicile doctrine”¹⁸⁴ And Sir David Cairns observed:

Purchas, L.J. discussed the strengths and weaknesses of the two approaches. The test of the ante-nuptial domicile had “the advantage of certainty and the further advantage of applying a standard law of domicile both to capacity to marry, the recognition of the marriage for other purposes and other personal issues (such as status, legitimacy, succession, etc.) where these are governed by the lex domicilii”.¹⁸⁶ But “[o]n the other hand, the rigid adherence to the concept of domicile in alone giving jurisdiction in the case of foreign divorces produces obvious anomalies....”¹⁸⁷

The test based on the law of the intended domicile had “the

advantage of applying a 'meaningful' law which is accepted in the area in which the parties are to live”,¹⁸⁸ but had the disadvantage of uncertainty:

Purchas, L.J. noted that:

Purchas, L.J. noted that the trial judge had applied the law of the intended domicile. For the reasons just mentioned, Purchas, L.J. considered that he had to express “considerable doubt whether this would be justified as a general proposition”.¹⁹¹ But it was “happily”¹⁹² not necessary to resolve this “extremely difficult but interesting academic controversy”¹⁹³ into which the trial judge had seen fit to enter. In his view, as in the view of the other members of the Court, the case could be disposed by on narrower grounds.

In other common law jurisdictions (apart from the United States, where a different approach has been taken) the

balance of support appears to be in favour of the antenuptial domicile test rather than that of the intended matrimonial home. This appears most clearly in Canada¹⁹⁴ and New Zealand.¹⁹⁵ Decisions in Australia are scanty. In the Victoria decision of In the Will of Swan,¹⁹⁶ in 1871, Molesworth, J. considered that capacity to marry should depend “upon the laws of the country of the parties in which they are afterwards probably to live”. It would seem wrong to place much weight on this statement as affording support for the intended matrimonial home¹⁹⁷ however, in view of the fact that immediately afterwards in his judgment Molesworth, J. referred with apparent approval to other decisions in which the antenuptial domicile test had been favoured.

Irish decisions, as we have mentioned, also support the dual domicile test. In Davis v Adair¹⁹⁸ 1985 the Court of Appeal, affirming Porter, M.R., applied this test to

determine the validity of a marriage celebrated in New York between a man and his deceased wife's sister. The marriage complied with the provisions of New York law but was in breach of Lord Lyndhurst's Act¹⁹⁹ of 1835.

The wife (who stood to gain a small inheritance from her late husband's estate if she could successfully impugn the validity of her second marriage) sued the trustees of her late husband's estate, contending that both she and her husband had been domiciled in England or in Ireland at the time of the marriage. Her husband supported this action.²⁰⁰ At trial, Porter, M.R., noted that:

The wife, on appeal relied on Brook v Brook²⁰² (also a case involving a marriage by a man with his deceased wife's sister) as authority for the proposition that “the contracting capacity of the parties is governed by the law of their domicil”.²⁰³ Counsel for the defendants conceded that the validity of the marriage depended on whether the

wife and the husband, “or either of them”,²⁰⁴ had on the day of the marriage “an English domicil”.²⁰⁵

The Court of Appeal held that both the wife and her husband had an “American domicile” and that the marriage was accordingly valid;²⁰⁶ it seems beyond doubt that if either of them had had an English (or Irish) rather than “American” domicile, the marriage would have been held invalid.

In K.E.D. (otherwise K.C.) v M.C.,²⁰⁷ in 1984, Carroll, J. held that a person's capacity to marry “is determined by the law of his ante-nuptial domicile”. The case concerned a marriage after a foreign divorce. This aspect of the subject of capacity to marry raises important issues, which we examine below.²⁰⁸

Exceptions to the General Rule

Whatever the general rule may be, whether antenuptial domicile or intended family home, it is clear that it is subject to a number of exceptions. Let us consider them in turn. In view of the paucity of Irish decisions, it is difficult to state with confidence whether these exceptions would command full support.

(i) The Rule in Sottomayor v De Barros (No.2)

Under the rule in Sottomayor v De Barros (No.2),²⁰⁹ a marriage celebrated within Britain where one of the spouses

is domiciled in one of the constituent jurisdictions will be valid in spite of the fact that the other spouse does not have capacity under his or her domiciliary law.

Sottomayor v De Barros (No.2) has received a generally unfriendly reception in Australia,²¹⁰ falling short, however, of outright rejection. A leading authority has submitted that, “if directly confronted with the decision, the High Court would not follow it”.²¹¹

(ii) Incapacity by the lex loci celebrationis where this is also the lex fori

Where a marriage is valid or otherwise effective²¹² by the personal law of the spouses but void by the lex loci celebrationis, and the lex loci celebrationis is foreign, then it would appear that Irish law should ignore any disability under the lex loci celebrationis.²¹³ The only

case²¹⁴ in which the contrary has been suggested is the much-criticised decision of Breen v Breen,²¹⁵ where Karminski J. looked to Irish law, as the law of the place of celebration.

Where the lex loci celebrationis is also the lex fori, however, it has been strongly argued²¹⁶ that a marriage valid by the parties' personal law (or laws) but void by the lex loci celebrationis would be considered void. There is no clear authority of this issue here or in other common law jurisdictions. The policy justification would seem to be that the forum should be entitled to protect its own laws from defiance by outsiders who come to the forum to marry.

(iii) Capacity to Marry After a Divorce

There is some considerable uncertainty as to the position regarding capacity to marry after a divorce so the present analysis is necessarily a tentative one. At common law it appears that capacity to enter a second (or subsequent) marriage is determined on the same principles as capacity to enter a first marriage, namely that “.... capacity to marry is governed by the law of each party's antenuptial domicile”.²¹⁷ Two separate questions may arise. First, is the dissolution of the first marriage recognised under our law? And secondly, did the parties have capacity to marry under the law of each party's domicile? In some cases, the questions will seem to be interlocked, so that the answer to the first will appear to dictate the answer to the second. Thus, for example, if X, domiciled in Ireland, obtains a divorce in England and immediately thereafter remarries in England, we are tempted to conclude that

because the divorce is not recognised in Ireland, the country of his domicile, neither will X's second marriage be recognised here. In this example, since capacity to remarry is determined by a person's ante-nuptial domicile, it is in fact the case that X's second marriage will not be recognised, because X was at the time of the second marriage domiciled in Ireland.

If we vary the facts somewhat, however, the issue will emerge more clearly. Let us take the case of Y, who, when domiciled in Ireland, obtains a divorce in England, and who remarries in England, not immediately, but some time later, by which time Y has acquired an English domicile. Clearly, the divorce will not be recognised here, but equally clearly the second marriage, let us assume,²¹⁸ is a valid marriage according to Y's ante-nuptial domicile. There is an important Canadian case²¹⁹ which holds that a marriage should be recognised where valid according to the ante-nuptial domicile even though preceded by a divorce decree which was not recognised by the law of the (then) domicile of the party concerned. As may readily be appreciated, some difficult consequential questions arise from severing the question of divorce recognition from that of capacity to remarry in this way. It would be necessary to determine whether the recognition of the validity of the second marriage necessarily extinguishes all the rights and obligations²²⁰ relating to the first marriage.

The converse position arises where, following a divorce granted²²¹ under the law of the (then) domicile, a party marries in circumstances where the law of his new domicile, at the time of the marriage, does not regard the divorce as

effective. There is English authority,²²² which is not directly in point but which would suggest that the validity of the second marriage should not be recognised since it conflicts with the ante-nuptial domicile. Later English decisions²²³ are, however, difficult to harmonise with this approach.²²⁴

However uncertain the common law rules relating to capacity to remarry after a divorce may be, the position becomes even more complicated when we have regard to the constitutional dimension. Article 41.3 of the Constitution provides as follows:

In the Irish language, Article 41.3.3° provides:

Judicial interpretation of these provisions, especially of Article 41.3.3°, has concentrated on the circumstances in which the validity of a foreign divorce decree will be recognised under our law. This is so in spite of the express language of the subsection which (whatever it may mean precisely) clearly speaks of capacity to marry.²²⁵

This approach is apparent in In Re Caffin Deceased: Bank of Ireland v Caffin,²²⁶ in 1971, Kenny, J. held that the second, rather than the first, wife of a divorced man was entitled under the Succession Act 1965 to elect to take a legal right, as surviving spouse in his estate. The man had divorced his first wife in England in 1956, when both he and his first wife were domiciled there. In the same year he married his second wife. At the time of the marriage he

was domiciled and resident in England, and his second wife was domiciled and resident in Ireland.

Kenny, J. stated:

Kenny, J. held that since the divorce was recognised here, the first marriage was not subsisting and accordingly that the second wife was entitled to the legal right. He provided no specific analysis of the issue of capacity to marry.²²⁸ The reference to the fact that the marriage took place in Dublin, however, suggests that it was inspired by Article 41.3.3°. What precise relevance this sub-section had to the outcome of the decision is not clear.

Passages from Mayo-Perrott v Mayo-Perrott²²⁹ merit extended quotation, since they raise (although they do not clearly resolve) the question of the exact effect of Article 41.3.3° on the capacity to remarry after a divorce.

O'Daly, J. said:

Kingsmill Moore, J. observed in relation to Article 41.3.3°:

This passage provokes the following question. Is Article 41.3.3° designed to modify or to replace the common law rules as to capacity to remarry? This question mirrors the question on which judicial attention has instead concentrated, namely, whether Article 41 modifies or replaces the common law rules relating to the recognition of foreign divorces.

Although the answer to the question regarding capacity to remarry is not certain, it may be argued that Article 41.3.3° must modify and cannot replace the common law rules. If the sub-section were to be interpreted as replacing the common law rules by a single provision rendering persons who have divorced abroad in circumstances where the divorce would not be recognised here incapable of remarrying here but capable of remarrying anywhere else, regardless of their ante-nuptial domicile at the time of the second marriage, this would have the effect of removing any of the common law requirements for capacity to remarry, provided only that the marriage takes place outside the State. There appears to be no sound policy justification for such an interpretation. It seems more reasonable to interpret the subsection as providing that parties whose divorce would not be recognised under our law have not the capacity to marry here but that in all other respects the common law rules as to capacity to remarry should continue to apply.

It is, of course, possible that the Constitution has an impact on the common law rules, not by reason of the specific terms of Article 41.3.3°, but on account of broader policy norms reflected in Article 41. Thus, for example, it may be that in cases where a person's ante-nuptial domicile would permit a remarriage but the divorce obtained by that person is not recognised under our law, the validity of the second marriage will not be recognised. It may also be the case that, though a divorce is recognised under our law, a subsequent marriage that is invalid by the law of the ante-nuptial domicile by reason of that law's non-recognition of the divorce should result in the marriage also being invalid under our law. In the absence of clear judicial guidance, these and related issues must remain for the moment unresolved.

(iv) Public Policy

It seems clear that our courts should not give effect to a capacity or incapacity under the law of a party's ante-nuptial domicile if to do so would be contrary to Irish public policy.²³² Public policy can thus operate in two

ways. Our courts should not recognise a foreign incapacity “of a penal or discriminatory nature”,²³³ such as one based on the grounds of race,²³⁴ caste,²³⁵ or religion,²³⁶ for example, or one that “discriminates against or penalises a particular section of the population”.²³⁷ Conversely our courts should (in rare cases) refuse to recognise a foreign capacity to marry which offends our public policy: a “marriage” between persons of the same sex,²³⁸ for example, or one between a brother and a sister,²³⁹ would clearly appear to fall within this category.

It would be wrong to overstate the scope of the operation of public policy in this context: too frequent an application of the concept would serve to defeat the general goals of choice-of-law rules in the private international law of marriage.

Consent to Marry

In England “the weight of authority”²⁴⁰ favours the view that the issue of the reality of a party's consent (as opposed to the form in which that consent is expressed)²⁴¹ should be determined by the law of the parties' domicile.

Support for this approach is evident, albeit somewhat opaquely, in the Court of Appeal decision of Apt v Apt,²⁴² in 1947. In Way v Way,²⁴³ in 1949, Hodson, J. placed some reliance on Apt v Apt when stating that “.... questions of consent are to be dealt with by reference to the personal law of the parties rather than by reference to the law of the place where the contract was made”. Hodson, J. considered that, since marriage is “essentially a voluntary union”²⁴⁴ and since “'consent is an emanation of personality'”,²⁴⁵ it was “therefore .... justifiable and consistent with authority to apply the matrimonial law of each of the parties”.²⁴⁶

English law, as the law of the petitioner's domicile, was accordingly applied. On appeal to the Court of Appeal (sub, nom. Kenward v Kenward²⁴⁷), Evershed, M.R. referred to Hodson, J.'s statement that the issue of the petitioner's

consent should be determined by English law, and added: “I assume that that is correct”.²⁴⁸

In Szechter (orse. Karsov) v Szechter,²⁴⁹ in 1970, the issue was whether a marriage contracted in Poland by Polish domiciliaries was void for duress. The marriage was a device adopted by the parties to secure the release of one of them from a prison, where she had been confined for “anti-state activities”. Sir Jocelyn Simon P. held that Polish law, as the lex domicilii, was the proper law to apply. He quoted²⁵⁰ the passage from Hodson, J.'s judgment (already mentioned) and referred²⁵¹ to Evershed, M.R.'s endorsement in the Court of Appeal.

Some discussion²⁵² has been provoked by the fact that, although he decided that Polish law applied, Sir Jocelyn Simon made an extensive examination of English law on the subject of duress. Sir Jocelyn Simon explained this on the basis that the expert witness on Polish law had (on account of illness) been able to give evidence only by way of affidavit and that “[i]f a party adduces no evidence, or insufficient evidence, of the proper foreign law, the court perforce looks to English law”.²⁵³ He did, however, note that counsel for the Queen's Proctor had not questioned the accuracy of the averment by the expert as to Polish law, which was to the effect that the marriage would be held

void.²⁵⁴

Hartley's comments are worth noting:

It is worth noting that in Szechter,²⁵⁶ Sir Jocelyn Simon adopted Dicey & Morris's suggestion²⁵⁷ that no marriage is valid if by the law of either party's domicile one party does not consent to marry the other. This approach does not coincide with that favoured by Cheshire & North:²⁵⁸ in their view,²⁵⁹ the issue of a party's alleged lack of consent to marry should be determined by reference to that person's ante-nuptial domiciliary law.²⁶⁰

Support for the lex domicilii as the relevant law to determine the issue of consent may also be gleaned from the English Court of Appeal's holding in Vervaeke v Smith²⁶¹ that the rule in Sottomayor v De Barros (No. 2)²⁶² applied to determine the validity of a marriage where consent was in issue.²⁶³ The House of Lords, on appeal,²⁶⁴ made no

observation on this issue.²⁶⁵

It should be noted that in several English cases the lex fori has been applied, without comment, not only where the lex fori coincided with the ante-nuptial domicile of the petitioner²⁶⁶ or the lex loci celebrationis,²⁶⁷ but also where neither supporting element was present.²⁶⁸

Moreover the lex loci celebrationis has been invoked in

isolated English²⁶⁹ and Australian²⁷⁰ cases as well as in the only Scottish case²⁷¹ dealing (obiter) with the question of choice of law for consent.

An attempt has been made by one commentator²⁷² to spell out the “inarticulated (sic) premises”²⁷³ on which the English courts have been working. In his view, the lex fori is to be applied where the case concerns a party who never intended to acquire the status, in law or reality, of a spouse. A mistake as to the nature of the ceremony or a case of duress would relate to the status in law of a spouse; a “sham marriage” would seek to deny the status, in reality, of a spouse. Where, however, the party did intend to acquire married status, but alleged that true consent was nevertheless lacking, whether because of a mistaken belief as to the legal effects of the marriage or of one as to the attitudes of the other spouse, then the issue should be referred to the law of that party's ante-nuptial domicile.

The policy justification put forward for this distinction is that, since in the case, where the party did not intend to acquire the status of a spouse, the court is acting as a mere fact-finding tribunal, it would necessarily have to apply English law as the lex fori in reaching its decision and there would be no need for it to refer to any other

law.²⁷⁴ These considerations would not arise in cases where the party did intend to marry but was mistaken as to the effects of the marriage or the qualities of the other spouse.

Impotence²⁷⁵

Impotence is a ground of nullity which renders a marriage voidable in Irish law.²⁷⁶ It consists of a condition of incapacity to have sexual intercourse with the other spouse.²⁷⁷ This condition must be permanent²⁷⁸ and must have existed at the time of the marriage.

A refusal by a party to consummate the marriage will not be a ground for annulment, unless the refusal may be traced to “such a paralysis and distortion of will as to prevent the victim thereof from engaging in the act of consummation”.²⁷⁹

In other countries, impotence is very frequently a ground for annulment.²⁸⁰ In some countries,²⁸¹ however, it is a ground for divorce.

While the notion of impotence as an incapacity to consummate the marriage is at the base of the ground of impotence in most countries, in some countries a decree of nullity may also be obtained for a wilful refusal to consummate a marriage, whether that refusal is based on incapacity existing at the time of the marriage, a secret intention not to consummate existing at the time or a deliberation occurring after the marriage was celebrated. Where the ground depends exclusively on facts and conditions occurring after the marriage was celebrated, particular difficulties are occasioned for the conflicts of law.

There appears to be no reported decision in the State in which the issue of choice of law for impotence and related matters was considered.²⁸² The position in other common law jurisdictions is far from clear.

In other common law jurisdictions, support has at various times been given to the lex loci celebrationis, the lex fori and the lex domicilii. Each will be considered in turn. Before doing so, however, it is worth noting that, in

England,²⁸³ impotence and wilful refusal to consummate the marriage are often pleaded as alternative grounds for annulment. Thus, when in these cases choice of law is discussed, “there is a tendency to assume that the same choice of law rule applied to both, even though impotence may be regarded as a defect existing at the time of marriage whilst wilful refusal could be classed as a post nuptial defect”.²⁸⁴

The lex loci celebrationis

The place of celebration of a marriage may have so little connection with the lives of the parties that it seems an odd reference point for choice of law on such an intimate question as impotence or wilful refusal. Nevertheless it has some English support. In Robert (otherwise de la Mare) v Robert,²⁸⁵ a wilful refusal case, Barnard, J. applied the lex loci celebrationis, primarily²⁸⁶ on the basis that wilful refusal “must be considered as a defect in marriage, an error in the quality of the respondent”.²⁸⁷ This approach has been roundly criticised. Error “in the quality of the respondent“ is not as a general rule, a ground for annulment at all under English common law. Certain statutory grounds for annulment – pregnancy per

alium²⁸⁸ and venereal disease²⁸⁹– are, it is true, conditional on there being error as to the situation on the part of the petitioner at the time of marriage;²⁹⁰ but, as Dicey & Morris note,

Moreover, even assuming that wilful refusal raised an issue of error – which impotence will clearly do in most cases – the lex domicilii, rather than the lex loci celebrationis, would be the appropriate law to determine the issue.²⁹²

In the Northern Ireland decision of Addison v Addison,²⁹³ the lex loci was again applied. Lord MacDermott said that he:

The lex fori

The lex fori has been applied in a number of English cases. In Easterbrook v Easterbrook (otherwise Jervis)²⁹⁴ and Hutter v Hutter (otherwise Perry),²⁹⁵ both decided before Robert (otherwise de la Mare) v Robert, the lex fori was applied without discussion, although in each case the husband was domiciled outside England and there was no evidence that wilful refusal was a ground for annulment in the foreign jurisdiction.²⁹⁶ Foreign law was pleaded in neither case. In both cases the marriage had been celebrated in England; in Easterbrook, both parties had been resident in England at all material times, and in Hutter the respondent was an English national, domiciliary and resident and the petitioner, though a domiciled subject of the United States, was resident in England from the time of the marriage.

In Magnier v Magnier²⁹⁷ in 1968, an undefended case, the facts were as follows.

The parties were married in Ireland²⁹⁸ in 1942. Both were

Catholics. The husband was of Irish birth and domicile and was still resident in Ireland when he brought proceedings for nullity of marriage in England, on the gorund of the wife's impotence or wilful refusal to consummate the marriage. The short report does not indicate the wife's nationality of domicile.

After the parties had married, the wife “steadfastly”²⁹⁹ refused her husband's request for sexual intercourse, saying that she did not wish to have children. After two years the husband ceased to ask her to have intercourse with him. Shortly afterwards the wife left Ireland and went first to the United States and finally to England, where she was resident at the time of the proceedings, which she did not defend.

Judge Mais was satisfied that there was “abundant authority”³⁰⁰ grounding jurisdiction and unhesitatingly applied the lex fori without prior analysis. He did, however, acknowledge that doing so “resulted in a situation where a party to a marriage who was domicile and resident in a foreign country could obtain a decree of nullity against the other party in the country of that other party's residence, but that decree might only be recognised in the country where it was granted and might not be binding on the courts of the petitioner's residence and domicile. That would bring into effect a 'limping divorce' whereby the respondent could re-marry but the petitioner could do so only at his peril”.³⁰¹

Finally, it may be noted that the House of Lords case of Ross Smith v Ross Smith³⁰² contains some leanings towards the lex fori. Dicey & Morris note³⁰³ that in this decision

Lords Reid³⁰⁴ and Morris³⁰⁵ both gave as one of their reasons for declining jurisdiction the undesirability of granting relief on grounds unknown to the law of the parties' domicile:

The lex domicilii

There is much support for the lex domicilii as the test for wilful refusal in English cases. In Robert (otherwise de la Mare) v Robert,³⁰⁷ Barnard, J. was willing to fall back on the lex domicilii if his preference for the lex loci should prove to have been mistaken. In Way v Way³⁰⁸ Hodson, J. favoured “the law of the matrimonial domicil” as the one appropriate to determine the question of wilful refusal. Way has been stigmatised as constituting “support of the weakest sort”³⁰⁹ for the application of the law of the husband's domicile: counsel had not argued the point and there is no trace of the judgment of Barnard, J. in Robert (otherwise de la Mare) v Robert,³¹⁰ having been cited.³¹¹ Nevertheless Hodson, J.'s judgment, in the opinion of Sachs, J. in Ponticelli v Ponticelli (otherwise Giglio),³¹² retains “considerable persuasive force”

especially since Hodson, J. extra-judicially³¹³ rejected the argument, favoured in Robert (otherwise de la Mare) v Robert, that the lex loci should apply.

In Ponticelli,³¹⁴ Sachs, J. also favoured the lex domicilii although, in view of the coincidence between the lex domicilii and lex fori on the facts of the case, it was “not .... essential .... to come to a final conclusion as between the two”.³¹⁵ Sachs, J. was certain that wilful refusal could “not be said to fall within the categories of form and ceremony”.³¹⁶ The choice, in his view, was between the lex domicilii and the lex fori. The claim of the lex fori was based on the view of the ground of wilful refusal as “something akin to matters for which the true remedy is divorce”.³¹⁷

But against this could be marshalled the robust repudiation by Denning, L.J. in Ramsay-Fairfax (orse Scott-Gibson) v Ramsay-Fairfax.³¹⁸ Moreover, the authorities were, on

balance, in favour of the lex domicilii.³¹⁹

Sachs, J. considered it:

Sachs, J. observed that the lex domicilii“normally coincides with the law pertaining to the country of the husband's domicile at the time of the marriage”.³²¹ The reliance by Sachs, J. on the husband's domicile is, of course, out of harmony with contemporary notions of sex equality.³²²

CHAPTER 3 PROPOSALS FOR REFORM

Formal Requirements for Marriage

We must now consider what law or laws should be applicable to determine the formal requirements of marriage. There has been no criticism of the present general preference for the lex loci celebrationis, and there is much to be said in its favour. It offers a clear and simple rule, which encourages certainty, predictability and uniformity of result.¹ It is an easy and appropriate one for the parties to the intended marriage to fulfil.² If they choose to marry in a foreign country, they can normally find out the formal requirements of that country's law without any great difficulty.³ As against this, there have been instances where Irish people married abroad in apparent ignorance of the formal requirements of the foreign law: the “Lourdes marriages” cases, as we have seen, required retrospective validating legislation.⁴

We are satisfied that the lex loci celebrationis should continue to afford the test for formal validity as a general rule. Later in the chapter we will examine whether it should be supplemented by any other law.

So far as determining which country is the “country of celebration”, we consider it better for the courts to develop the law on this question than for the legislation to attempt to set out detailed rules.⁵

When we speak of the lex loci celebrationis, should we refer only to the internal law of the place of celebration or should the term embrace the whole law of the place of celebration, including its choice of law rules?

The argument in favour of the internal law alone is that it would offer a simpler solution. The formal requirements of a country's internal law frequently are set out in clear statutory terms, and they must be widely known so that they can be applied for all marriages by marriage officials. Choice of law rules may be less easy to ascertain; they may depend on judicial decisions rather than broadranging statutory provisions; the relevant legal principles may be undeveloped and the decisions may be conflicting to a greater or a lesser extent. Moreover, it may prove very difficult for other countries to master the complex choice of law rules of particular countries, and the task could involve additional delay and cost in litigation.⁶

In favour of referring to the whole law of the place of celebration two important arguments have been made. First, it “would tend to promote greater uniformity of status”.⁷ One commentator⁸ has observed that the acceptance of this approach would:

Moreover, this approach would give support to the favor matrimonii principle. As the English and Scottish Law Commissions have noted:

On balance we consider that it would be more desirable for reference to the lex loci celebrationis to be to the whole law of that country rather than to its internal law alone.

We must now consider whether it should be sufficient for the parties to comply with either the internal law or the choice of law rules of the lex loci celebrationis. If it were sufficient then, of course, the parties would be able to have the validity of their marriage recognised even where it was celebrated in defiance of the relevant law prescribed by the lex loci celebrationis; “[i]n other words, renvoi c[ould] only be used to validate a marriage, never to invalidate it”.¹⁰

The advantage of this approach based on alternative references is that it gives effect to the favor matrimonii principle, but it does so at the expense of creating limping marriages. The English and Scottish Law Commissions have observed that:

The English and Scottish Law Commissions also consider that there would be

We are not convinced by the argument that parties should be entitled to refer to a particular law (the internal law) which the lex loci celebrationis expressly excludes from application by prescribing choice-of-law rules and we recommend that the legislation should contain no such rule. It remains true, of course, that the internal law may be easier for the parties to establish, but that is not a sufficient reason, in our view, to justify reference to the internal law as an alternative to the law prescribed by the choice of law rules.

We must now consider the argument that a different alternative reference should be made: that a marriage should be valid if it complies with the requirements of either the lex loci celebrationis (including its choice of law rules) or of the personal law of the parties. That personal law may be based on nationality, domicile, habitual residence or other factors. As we have seen, such a rule of alternative reference prevails in several countries, including the Federal Republic of Germany and France, where it is modified to the extent that it does not apply where the marriage is celebrated within the area of the forum.

Before we consider the merits of this general approach, it is worth noting that the English and Scottish Law Commissions summarily dismissed¹³ its possible application (using domicile as the relevant personal law)¹⁴ without a modification of the lines favoured in the Federal Republic of Germany or in France.

They said:

They noted that Britain's domestic rules as to form

We see the force of this argument, but we doubt if the issue is so simple. It is no doubt true that the unmodified rule “would enable foreign domiciliaries to marry here to evade the mandatory formal requirements imposed by our marriage legislation” but the reference to evasion might give the impression that fear of evasion constitutes a primary objection to the unmodified rule. In fact there is no reason to believe that, so far as formal requirements¹⁸ for marriage are concerned, evasion would be a substantial social problem. Of course, if the Commissions when referring to evasion merely advert to the fact that the

parties will be permitted not to comply with the internal law, this of course follows inevitably from the unmodified rule.

Let us attempt to address the central policy issue raised by the unmodified rule. The formal requirements of marriage prescribe rules as to the degree of external societal manifestation and control which there must be of the parties' commitment to marry one another. As we have seen,¹⁹ prior to the Millis²⁰ decision in 1843, the better view was that a valid marriage might be contracted by the parties themselves without the necessity of being in the presence of a clergyman or registrar of the marriage as a precondition of validity. This type of “common law marriage” is still part of the law of a number of countries today.

Can it be said that the policy of Irish law is so opposed to this type of marriage that it would be undesirable to require our courts to recognise as valid such a marriage taking place here where it is valid according to the personal law of the parties?

On balance we consider that it would be undesirable to give effect to the unmodified rule. It would tend to interfere with the administration of the forum's policy of requiring due publicity and ceremony for marriages. It could, moreover, cause uncertainty and confusion in some cases, although it would not be wise to overstress this difficulty, since under existing law, a “common law marriage” contracted (or, perhaps, recognised as formally valid)²¹ in a foreign jurisdiction will be recognised as valid here. Thus, some of the practical inconvenience in establishing whether there has been a “common law marriage” already is part of our law.

Having come to the view that the unmodified rule is too troublesome to command acceptance, we must now consider whether the modified rule (as in the Federal Republic of Germany or in France, for example) should be introduced into our law. The advantages of the modified rule include its support for the favor matrimonii principle, and its convenience for the parties.²²

But the price would be the creation of limping marriages and the creation of the opportunity for the parties to avoid complying with the mandatory formal requirements of the lex loci celebrationis (where that law does not include a choice of law rule permitting reference to the parties' personal law).²³ In this context it is worth recording the English and Scottish Law Commissions' observation that:

The modified rule would, moreover, involve enhanced complexity, since instead of having to refer merely to the lex loci celebrationis, it would be necessary also to refer to the parties' personal law. Where the personal law of one party was different from that of the other, the position could become still more complicated.²⁵ We appreciate the force of this argument but it should be borne in mind that, under existing law some of these difficulties may arise, if reference to the lex loci celebrationis includes a reference to its choice of law rules.

One social factor should be considered in this context. In a number of countries it is necessary to marry in a secular, civil form of marriage; a marriage celebrated according to

religious rites will be invalid (and, in certain instances, when contracted before the civil ceremony, will involve the parties or the clergyman in the commission of a criminal offence). Reference to the personal law of the parties as an alternative to the lex loci celebrationis may save the validity of such a religious marriage.²⁶

Thus, the “Lourdes marriages” problem might not have arisen for Irish private international law if this law had

permitted an alternative reference to the personal law of the parties.

We do not consider that the specific question of religious marriages would justify the establishment of an alternative reference to the personal law. Most countries which require a civil mode of contracting marriage do not prevent the religious celebration of marriage,²⁷ provided (in some countries) that the civil mode takes place before the religious ceremony. There is not, in our view, a problem of such serious dimensions as to call for the establishment of an alternative reference to the personal law.

Accordingly, we recommend that, save to the extent that renvoi may come into operation, reference to the lex loci celebrationis should not also include a reference to the personal law of the parties.

Exceptions to the Lex Loci Rule

(1) The Common Law Exception

We must now consider what changes, if any, should be made to the present common law exception of the lex loci rule. To some extent, the issue is made more difficult by reason of the uncertainty surrounding the scope of the exception under present law.

But rather than refer the question for all affected persons of every nationality and residence to the English common law in circumstances where this would be done at present, we think that instead it would be more desirable for the law in such cases simply to provide that a marriage would be formally valid if the parties each undertake thereupon to become man and wife. We are not attracted by the argument that reference should be made to the formal requirements of the parties' personal law (such as domicile, nationality or habitual residence). Such a reference would in our view place undue and impractical demands on many prospective spouses.

(2) Consular Marriages and Marriages by Members of the Defence Forces

We do not consider that there is a sufficient social need to justify the establishment of special legislative provisions providing for consular marriages abroad or for marriages by members of the Defence Forces. We have no evidence that any hardship or injustice of any significant extent results from the absence of this legislative machinery.

Should Recognition be Denied to Marriages Contracted in a Country with the Intention of Evading the Formal Requirements of the Personal Law?

We must now consider whether recognition should be denied to marriages contracted in a particular country which the parties have selected in order to evade the formal requirements of their personal law.²⁸

In most countries the lex loci principle applies even in cases of evasion.²⁹ This is clearly so in most common law

jurisdictions;³⁰ it is also the general rule in civil law jurisdictions, but in France the concept of fraude à la loi plays a limited (and much debated) role in restricting recognition in cases of deliberate evasion.³¹

In theory the doctrine of evasion should have some advantages. For why should parties be permitted without any control to flout the policy of their own personal law on matters of form? If, for example, a country does not allow parties to contract a common law marriage within the boundaries, why should it be obliged either to recognise such a marriage contracted outside its boundaries or else to fall back on public policy in denying it recognition?

On balance, however, we do not consider it desirable to introduce a qualification denying recognition to marriages contracted in circumstances where the parties seek to evade the formal requirements of the personal law. If the lex loci celebrationis is as a general rule preferable to the personal law to determine the formal requirements (for reasons we have already mentioned) then this policy should, in our view, not be set aside merely because the parties who avail themselves of the rule do so with some satisfaction that the personal law will not apply. We agree with the statement of one commentator in this context that:

Capacity to Marry and Choice-of-Law Rules in Relation to Marriage: Proposals for Reform

In this section we consider how the law relating to capacity to marry and choice-of-law rules in relation to marriage should be reformed. At the outset we should refer to the fact that these two issues have tended to be treated separately, to the detriment of a cohesive legal policy on the subject as a whole. In our analysis of the subject we strive to bring together the two questions, since we consider this approach will tend to encourage a simpler and more consistent approach.

Criticisms of the Present Law as to Capacity to Marry

Several criticisms may be voiced in relation to the present law as to capacity to marry. The very uncertainty as to what test applies is, of course, a source of criticism, although perhaps this can be attributed more to the paucity of modern case-law than to any inherent problem of principle. If we assume that the dual domicile test applies, it may be criticised for “lean[ing] too heavily in favour of invalidity”³³ since in cases where the domiciliary laws of the parties differ as to the validity of a marriage, at all events one celebrated abroad,³⁴ on a matter of capacity, the marriage will not be regarded as valid.

Nor has the test of the intended matrimonial home escaped criticism. We shall be examining these criticisms in greater detail later, but it is worth noting at present that the major objection to it is its uncertainty in practical application.

Options for Reform

If the present law is less than perfect, the question arises as to what approach would be better. We will consider a number of possible options in turn.

(a) The lex fori

The lex fori is, of course, simple to apply, and readily accessible to the court and to the parties' lawyers. It has, moreover, an important role in respect of refusing to recognise a foreign capacity or incapacity on the ground of public policy.³⁵

Nevertheless, the drawbacks associated with the application of the lex fori in this context make it a most unsatisfactory option in our view. It promotes limping marriages, encourages forum shopping, and makes it impossible at the time of the marriage to know whether the marriage is valid or invalid, since the parties “cannot predict what is to be the future forum with whose law they must comply”.³⁶

(b) The lex loci celebrationis

We must now consider whether the law of the place of celebration would offer an appropriate test, whether in its own right or as one of a number of tests. As we have seen,³⁷ this test was formerly applied, when the courts drew no distinction between validity as to form and as to capacity respectively; this approach continues to apply as the basic rule in the United States, in most countries of

Latin America and other countries including Denmark and South Africa.³⁸

The principal advantages of choosing the law of the country of celebration are its simplicity and clarity and the fact that it promotes the policy of upholding the validity of marriage, since marriages which do not comply with the lex loci celebrationis would be prohibited. The English and Scottish Law Commissions note, in support of the lex loci rule, that,

Nevertheless, although the Commissions concede that the lex loci may have some role to play in matters of capacity, they suggest that “we ought not to turn the forensic clock back

some 120 years”⁴¹ by reverting to the lex loci as the basic applicable law for issues of capacity. The Commissions set out four main objections to the lex loci rule:

So far as considerations (a) and (d) are concerned, it is worth looking at experience in the United States in relation to evasion. The Uniform Marriage Evasion Act,⁴⁵ first approved in 1912, had provided:

The Act was fully adopted in only five states.⁴⁶ Eleven

other states adopted portions of it.⁴⁷ The Act was introduced at a time when the policy among states of counteracting evasion was strong.⁴⁸ But as this policy weakened the Act became more of a hindrance than an advantage.⁴⁹

Accordingly, the Act was withdrawn in 1943. The Uniform Marriage and Divorce Act takes the opposite approach. Section 210 provides that:

Taintor attacks the policy of evasion statutes in strong terms:

Taintor's main point is a useful one, but it is far from self-evidently correct. It is one thing for our law to

accept the realities of life in another state, whose law does not offend against public policy but which nonetheless is significantly at variance with the law of (say) the parties' domicile. But it is another thing entirely to permit persons to evade the policy of the law of their domicile and seek out a law which is not really “theirs” for the purpose of evasion. It seems quite legitimate to refuse to recognise the effects of this type of conduct. Whether this would be a prudent approach is a separate question.

The third of the English and Scottish Law Commissions' objections to the lex loci (contained in paragraph (c) of para. 3.23) correctly refers to the fact that accepting the lex loci would inevitably result in limping marriages, but it is not clear that to do so would necessarily result, as they state, in more limping marriages. It should be noted that many Continental European countries refer to the nationality, rather than the domicile, of the parties. In some cases under existing English law, therefore, limping marriages will exist, where the domicile and nationality differ. To substitute the lex loci would of course, create newly limping marriages (for most common law countries, which also apply domicile as the personal law); it would also create newly limping marriages, so far as many Continental European countries are concerned, in cases where the nationality and domicile coincide but the nationaltiy and lex loci do not; but conversely in cases where the nationality and lex loci coincide, but the nationality and domicile do not, accepting the lex loci rule would have the effect of reducing limping marriages.

As a general point with regard to the limping marriages, it is perhaps useful to repeat⁵⁴ with a sense of regret matched by a sense of realism, that as long as social norms as to marriage differ from country to country, there will be limping marriages. Our private international law, of itself, cannot remove these differences; all it can seek to do is prescribe rules (in the present context relating to choice of law) which are designed so far as possible to avoid creating unnecessary differences of marital status between the laws of different countries. But even this

more modest goal is itself subject to further constraints. First, the aim of reducing limping marriages should not be permitted to come in the way of other, more basic, aims relating to justice or social policy. Thus, for example, our law should rightly reject rules of marriage based on racial discrimination even though the effect will be to create limping marriages. Secondly, of the nature of the present state of private international law of marriage, every criterion for capacity will necessarily result in some limping marriages: simply to select a criterion will thus be to decide that certain marriages will become limping ones. When confronting this reality we should of course, attempt to examine the probable implications for limping marriages that any particular criterion may have. Weighing these implications is no easy task. To take a hypothetical, but far from entirely theoretical issue, if one particular criterion is likely to have the effect of rendering marriages in other common law countries limping, so far as our private international law is concerned, is that a reason in itself for treating it with less favour than a criterion whose likely effect would be to create limping marriages in civil law countries?

To what extent should we give priority to concerns about Irish people living abroad, or conversely to the law of countries such as China, India and Pakistan with large populations but relatively small connections with this country so far as numbers of people from these countries live or work in Ireland (and viceversa)?

Two final points may be noted about limping marriages. First, even if two countries have the same choice of law rules for capacity there is no guarantee that the factual determination of marital status in each country will be the same. Secondly, it would perhaps be unwise to regard the fate of being a limping marriage as of equal practical significance in every case. In many instances in the context of the lives of the parties concerned, the fact that their marriage is limping (let us assume, between two countries) will not impinge at all into the reality of their lives, simply because they have no practical connection with the application of the private international law of one of these countries.

Returning to the objections against the lex loci made by the English and Scottish Law Commissions, we agree with the thrust of the argument set out in sub-paragraph (d) of para. 3.23. Introducing a provision to deal with intended evasion of the law would certainly go some way towards depriving the lex loci rule of its advantages of certainty

and predictability. But this falls well short of being a very serious criticism for a number of reasons. First, domicile may require the most intensive scrutiny of the most intimate and inaccessible details of a person's life, yet this has not proved a sufficiently strong reason so far for rejecting domicile as a test for capacity in many countries. On way of preserving a high degree of certainty and predictability would be to require a minimum period of residence before and/or after the marriage. This would go some way towards reducing the risk of evasion but it would not root it out entirely.

Having examined the strengths and weaknesses of the lex loci celebrationis, we have come to the conclusion that, whether on its own or qualified by certain exceptions, it would not, on balance, offer a satisfactory test by which the capacity to marry should be determined.

(c) The Test of the “Most Real and Substantial Connection”

We must now consider whether capacity to marry should be determined by the law of the country with which the marriage has the “most real and substantial connection”. This test has received some support in English nullity cases⁵⁵ although it no longer commends itself to British legislators⁵⁶ or law reform agencies⁵⁷ as a test for matrimonial causes in general.

It is useful to examine why the English and Scottish Law Commissions reject this test in relation to capacity to marry:

We appreciate the force of this criticism, although we consider that the merits of the most “real and substantial” test are significant and should not be ignored. In some cases the test, far from being inherently vague and unpredictable, would be applied easily and appropriately, far more appropriately perhaps then in some cases where other connecting factors such as nationality or domicile⁵⁹ were applied. it may be argued that the great advantage about the most real and substantial“ connection test is that it will yield a inroe consistently appropriate test than will the application of any other single specific test. All the specific tests have an “outer circle” of inappropriate, unconvincing and arguably unjust applications: that is the price of their certainty. On the other hand, the most “real and substantial” connection test offers a consistently appropriate solution, at a price of possible uncertainty.

Furthermore, it would be wrong to overstate the deficiencies of the most “real and substantial” connection test as a

prospective yardstick for future planning. In some cases it will offer no difficulty; such difficulties as might arise in other cases have their counterparts with the tests of domicile and (to a lesser extent) habitual residence.

On balance, we consider that the test of the most real and substantial connection should not be adopted. We take this view because we are satisfied that the benefits it offers are also available (with other advantages) in a different test⁶⁰ which has less disadvantages than that of the most real and substantial connection.

(d) Nationality

We must now consider whether nationality should be adopted as the test for capacity to marry.⁶¹

Nationality is still widely used in civil law jurisdictions as the test for determining the capacity of the parties to marry.⁶² Relative to domicile it has several advantages.⁶³

It is generally easier to ascertain since it is more a matter of objective fact rather than dependent (in part) on internal intention. Moreover, it is more easily understood and easier to determine by lay persons, such as social welfare officers and customs authorities.

But nationality also has significant drawbacks. It may constitute an inappropriate and unjust connecting factor.⁶⁴ Moreover, as the English and Scottish Law Commissions point out:

Finally, nationality presents difficulties (which are not insuperable) in relation to federal states, as well as in cases involving refugees, stateless persons and persons with dual nationality. On balance we consider that nationality would not form an appropriate test for determining capacity to marry.

(e) Domicile

In an earlier Working Paper⁶⁷ and Report,⁶⁸ we have already considered the general question as to whether domicile is an appropriate connecting factor in private international law. We came to the conclusion that it would on balance be preferable to replace domicile by habitual residence.

We do not wish to rehearse the arguments for and against this general change. We will address merely the specific issue of whether domicile offers an appropriate test for capacity to marry. In its favour, it may be argued that it has for long provided the test and that it has not met with significant criticism in this country.

As against this, domicile may offer a most inappropriate test for capacity to marry, not merely in cases where application of its technical rules⁶⁹ throw up a curious result, but also in some more straightforward cases. If, however, for example, an Irishman goes to New York where he marries and lives for twenty years, intending to return to Ireland and spend the rest of his days there after his family have grown up, and if after his wife's death he decides to marry for a second time in New York, he would surely be surprised to learn that his capacity to marry should be determined by Irish law, the law of his domicile.

The very uncertainty in working out a person's domicile is another factor weighing against the adoption of domicile in determining capacity to marry, since certainty and predictability are valuable policy goals in this area of life which should not be unduly prejudiced.

We are satisfied that domicile – even if reformed in such a way as to remove or reduce the effect of some of its

technical rules – would not, on balance, afford a suitable test for determining capacity to marry.

(f) The Intended Matrimonial Home Test

We must now consider whether the “intended matrimonial home” test should be adopted in relation to capacity to marry. This test has had powerful adovcates in Cook and Cheshire. Cheshire & North argue that:

The intended matrimonial home test also offers the advantage of a single law governing the question of capacity to marry. More debatably it may be argued that “[t]he objective of giving effect to the reasonable expectations of the parties and the policy of upholding the validity of marriages may be better achieved by this test than by the dual domicile test”.⁷¹ This argument would not apply, of course, in cases where the marriage is valid by the dual domicile but invalid according to the law of the intended matrimonial home.⁷² In truth, parties who intend to make their home in a particular country do not necessarily do so in the belief that the law of that country should determine the validity of their marriage. On the contrary, it may well be that an Irish couple who marry in Ireland before

emigrating to California would have a reasonable expectation that the validity of their marriage would be determined by Irish rather than Californian law. It is, of course, true that it is very difficult to prescribe an appropriate test as to marital capacity for cases where the parties are moving from one legal system with which they have had a major connection to another legal system with which they intend to reorientate their interests. But the argument in favour of the intended matrimonial home test based on the reasonable expecations of the parties seems to us to be far from convincing.

Of the several objections to the intended matrimonial home test, perhaps the most serious is its uncertainty:

As Morris observed:

Finally, the “intended matrimonial home” test may involve difficulties as to evasion and lack of bonafide intent.⁷⁵

On balance, we consider that this test would not prove to be a satisfactory or appropriate one in respect of capacity to marry.

(g) Habitual Residence

We must now consider whether habitual residence would afford an appropriate test for determining capacity to marry. As we have mentioned, we have already recommended⁷⁶ that habitual residence should replace domicile as a connecting factor in private international law in general. In the specific area of capacity to marry it has several advantages. It is an easy concept to understand, being a question of fact in which the issue of subjective intention plays a less important role than in relation to domicile. It has increasing international acceptance and is already being used, without apparent difficulty, in the matrimonial law of a number of countries and in international conventions on private international law. Moreover, it ensures the application of a system of law of a country with which the party marrying has close and continuing connections at the time of the marriage.

It is, however, worth noting some of the criticisms of the use of habitual residence in this context. Two made recently by the English and the Scottish Law Commissions are of particular interest. The first is that habitual residence “does not represent such a strong connection between a person and a country as would always justify a person's civil status being determined according to the law of that country”.⁷⁷

While this criticism may have some force where the concept of habitual residence has no clearly-defined meaning, it has less relevance where there is a “strong” legislative definition of habitual residence. We have already recommended that such a definition should be provided. Section 3 of the General Scheme of a Bill to Reform the Law Substituting “Habitual Residence” for “Domicile” as a Connecting Factor for the Purpose of the Conflict of Laws⁷⁸ is drafted as follows:

We are satisfied that this definition ensures that an habitual residence will not be attributed too lightly to a person.

The second criticism by the English and Scottish Law Commissions of habitual residence as a test for capacity to marry is as follows:

Again, in view of our proposed legislative definition of habitual residence, the problem of evasion would not seem to

have any force. The courts, far from being required to ignore the intentions of the person whose habitual residence is in issue, are under the specific obligation to take account of that person's intentions relative to his “personal, social and economic interests”. Thus, there is no question of the courts being obliged to find that the person was habitually resident in a particular country where his intention was merely to defeat the marriage laws of his own country. The new country may be said to be one in which that person has a habitual residence only after “having regard to the centre of his personal, social and economic interests”, as well as the duration of these interests and “the intentions of the person relative thereto”.

We have come to the conclusion that, on balance, habitual residence offer the most satisfactory test for capacity to marry.

We consider that a marriage should be valid as regards capacity when each of the parties has, according to the law of his or her habitual residence, the capacity to marry the other. To hold valid a marriage which did not fulfil this requirement would defeat the interests of the country of the habitual residence of one of the spouses.⁸⁰

So far as renvoi is concerned, we consider that, as in the case of formal validity, renvoi should apply in respect of capacity to marry.⁸¹

We do not consider that failure to comply with the substantive requirements of the lex loci celebrationis should render invalid a marriage valid according to the law of the habitual residence of the parties. The place of celebration is not of great relevance to the parties' lives and should not intrude into the question of their capacity to marry. Of course, the place of celebration is always free to specify what requirements it may wish as regards capacity to marry, and it may insist that marriage officials be satisfied that these requirements have been fulfilled before they are authorized to marry parties to an intended

marriage. In practice this will limit the scope of opportunity to marry in that country in defiance of its substantive requirements.

We consider that the same approach should, as a general rule, apply to the requirements of the lex fori. We are satisfied that public policy considerations will ensure that no untoward consequences follow from the application of the law of the parties' habitual residence in this context. Moreover this approach should be subject to the entitlement of the forum by legislation specifically to exclude or modify the application of the law of the parties' habitual residence where this conflicts with a specific basic policy or policies of the forum.

So far as minimum age requirements and parental consent requirements, we have already proposed, in our Report of the Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects,⁸² that the substantive requirements should apply (inter alia) to any marriage solemnised in the State, irrespective of the habitual residence of the parties or of either of them. Thus, a marriage solemnised here by two foreign 14 year-olds without the consent of the President of the High Court (or nominated Judge) would be invalid even in a case where the marriage complies with the minimum age requirements of the law of the parties' habitual residence. We reiterate these recommendations in the present context.

A basic issue of policy⁸³ is presented by the competing rules as to recognition of foreign divorces, on the one hand, and capacity to (re)marry, on the other. It may be that a person whose divorce is not recognised here has capacity to remarry according to the law of his habitual residence; conversely cases may arise where a person whose divorce is recognised here has not capacity to remarry according to the law of his habitual residence. In the event of such a clash of rules, which rule should prevail?

This issue has arisen in the conflicts of law systems of many countries. In a wide-ranging comparative study, Pålsson reports that it is “usually agreed or tacitly assumed”⁸⁴ that a further marriage is barred when the previous one is valid and subsisting in the eyes of the lex fori even if it is not so regarded by the law governing the capacity of the parties to the proposed second union.⁸⁵ To hold otherwise might be regarded as permitting a foreign law to take precedence over the basic policy of the forum.⁸⁶

The issue is unquestionably a difficult one, with a case to be made against all possible options. If we recognise a marriage that complies with the law of the habitual residence but has been preceded by a divorce that is not recognised under our law, we will be involving ourselves in the problems and inconsistencies outlined by Pålsson. On the other hand, it may seem unfortunate that a marriage valid according to the parties' habitual residence should not be upheld on account of the fact that the dissolution of an earlier marriage is not recognised under our law.

So far as remarriage following a divorce is concerned, it would appear that the effect of Article 41.3.3° of the Constitution is that parties cannot legally remarry in the State following a foreign divorce that is not recognised here. Although the position is not certain, it may well be that this incapacity exists whether or not the parties have capacity to remarry according to the law of their ante-nuptial domicile or (as we propose) of their habitual residence. A point worth noting is that the general question whether non-recognition of a foreign divorce should prevent the establishment of a capacity to remarry is one that arises in the law of every state, regardless of whether a divorce jurisdiction exists within that state.

We have come to the conclusion that, in cases where the dissolution of a marriage would not be recognised here and that marriage continues to be a subsisting valid marriage under our law, a subsequent marriage should not be recognised under our law whether or not it complies with the law as to capacity to remarry of the parties' habitual residence.

We must now consider the converse case, where our law recognises a divorce of a marriage which, acordingly, is no longer a valid subsisting one under our law, but where the parties do not have capacity under the law of their habitual residence because that law does not recognise the divorce. It may be argued that, if we recognise the divorce, we should disregard the incapacity under the law of the parties' habitual residence because in the reverse case just considered (where we do not recognise a divorce but the law of the habitual residence does) we also gave precedence to our recognition rule over the law of the of the parties' habitual residence. As against this, it may be said that this stress on apparent consistency ignores the more fundamental point that a remarriage, to be effective, must fulfil the requirements of both our divorce recognition rules and our capacity to marry rules. If it fails either of these sets of requirements its validity should not be recognised.

Thus we consider that, where a remarriage fails to satisfy the requirements of the law of the parties' habitual residence, its validity should not be recognised whether or not a prior dissolution is recognised under our law.

Consent

We must now consider what law should be used to determine issues of consent. It seems reasonably clear that the lex loci celebrationis would not, of itself, afford a satisfactory test, for much the same reason that it would not, of itself, afford a satisfactory test for capacity in general. A passing connection with the country where a marriage is celebrated is not sufficient, in our view, to refer the issue of consent to the law of that country.⁸⁷ From the standpoint neither of that country nor of the parties themselves does it appear justified.⁸⁸

In our view the real contest is between the lex fori and the law of the country of the parties' habitual residence.

In favour of the lex fori are the standard arguments that it is cheaper and easier to apply and that the courts are more comfortable with it. Moreover, it may be contended that the issue of reality of consent “is closely connected with the public policy of the forum”.⁸⁹

Against the lex fori, the standard objection that it encourages forum shopping⁹⁰ may be mentioned. Nor do we consider that the factors of cheapness and ease of application, in themselves, outweigh the more substantial policy issue of what law is appropriate to determine the issue, so far as the parties themselves are concerned.

This brings us to the question whether the forum has a stronger claim than the law of the country of the parties' habitual residence to determine the validity of the consent

of the parties, so far as policy issues are concerned. In our view, the balance lies against the forum. Of course the forum has an interest in (for example) preventing marriages by persons suffering from a serious mental illness. It seems to us, however, that rules regulating consent are primarily designed to protect the interests of the parties themselves rather than broader social interests.⁹¹ It is, of course, possible to envisage aspects of the law relating to consent in which the public policy element is more prominent. In the more significant of these cases, it would be possible to invoke the principle of public policy.

We are satisfied that the best approach would be for the issue of consent to be determined by the law of the country of the parties' habitual residence. Where the parties have their habitual residences in different countries at the time of the marriage and application of this test leads to reference of two laws, the question arises as to whether the marriage should be invalid for lack of consent where, according (a) to both laws, or (b) to either law, a party did not provide the requisite consent, or whether it should be invalfid (c) only where, according to the law applying to the party in question, that party did not provide the requisite consent.

We do not favour option (a). If, according to the law of party X's habitual residence, X has not given an appropriate consent, it does not seem to be appropriate that the marriage should not be capable of being annulled by reason of the fact that, according to the law of party Y's habitual residence, X had no ground for annulment.

So far as option (b) is concerned, it can be argued that, by way of analogy with the ground of impotence, which we shall consider below,⁹² a marriage vitiated by lack of consent involves what might be termed a “defective matrimonial relationship”. If stress is laid on the relationship rather than on the physical or psychological condition of either party, then it may be argued that the real question should be whether the marriage is invalid according to the

law of either party, rather than the law of the party whose consent is alleged to be defective. Moreover, there are some instances where the lack of consent is more easily understood in terms of mutual mistake rather than some unilateral condition attaching to one party only.

It can also be argued that the grounds of nullity based on lack of consent reflect a view of certain minimum conditions for marriage, so that if these conditions are not fulfilled according to the law of either party, either party should be permitted to petition for a decree of nullity of marriage, even where the failure to fulfil these conditions is one prescribed by the law of the respondent's, rather than the petitioner's, habitual residence.

Nevertheless, we prefer option (c). It has a number of advantages. First, in the great majority of cases it is possible to say that a particular party lacks consent to marry. This may be because that party was mentally ill, for example, or was the victim of duress, or of fraud or mistake. There may of course be cases where, for example, both the parties were the victims of duress,⁹³ but even in these cases, the question whether one spouse was affected by duress is a separate issue from whether the other spouse was similarly affected.

Secondly, option (c) would ensure that where the law of his own habitual residence upholds the validity of his consent, a party would not be able to avail himself of an entitlement to petition on the basis of his lack of consent under the law of a country (of the other spouse's habitual residence) whose connection with him depends on a contingency over which he has no control.

Thirdly, option (c) would harmonise effectively with our earlier recommendation⁹⁴ with respect to capacity to marry. We agree with the English and Scottish Law Commissions' view that “[t]o apply different tests to these two issues would produce unnecessary complexity in the structure of the choice of law rules”.⁹⁵

Fourthly, option (c) would be in line with the main thrust of international thinking on the issue. In a detailed comparative study on private international law aspects of marriage, Pålsson reports that requirements relating to consent are:

Pålsson refers⁹⁷ to cases expressly or implicitly supporting this view in Austria, Belgium, France, the Federal Republic of Germany, Italy, the Netherlands and Switzerland. He does, however, note⁹⁸ that there is a minority opinion in several countries which favours a bilateral approach making each of the parties subject to the consent requirements of both personal laws.

One possible objection to option (c) is that it is difficult to harmonise with our recommendations in relation to impotence,⁹⁹ where we prefer the bilateral approach. We consider, however, that this difference can be justified, in the light of the specific nature of impotence and failure to consummate a marriage. We appreciate that the borderline between cases falling under the heading of consent and those falling under the heading of impotence and non-consummation may at time raise difficulties, especially where the non-consummation is attributable to a secret intention not to consummate, existing at the time of the marriage, rather than to physical or psychological incapacity. The problem of distinguishing “sham marriages” from cases of mere unilateral determination not to consummate may also be a real one in some cases.