Marriage is an institution in which two persons are involved i.e. a male and a
female. Marriage consider as sacramental or contractual which give rise to a
status (status here confers to husband and wife). In Shaw V. Gould
"Marriage is the very foundation the civil society, and no part of the laws and
institutions of a country can be of more vital importance to its subject than
those which regulate the manner and condition of forming, and if necessary of
dissolving, the marriage contract."
Every country has different rules, rites and cultures regarding valid marriage
like in English law marriage though a contract on other hand Common law in
England, it is in essence a consensual union of man and a woman. This
decision was the foundation of the rule that polygamous marriages were not
recognized in England but the situation has been changed and such marriages are
now recognized in England.
The Hague Conference on Private International Law has drafted the Hague
Convention on the Celebration and Recognition of the Validity of Marriages 1978.
Few Common Law States have adopted it, Australia being the only exception,
having amended the (Australian) Marriage Act 1961, in 1985 to give statutory
force of convention relating to the recognition of marriage. The Law commission
in the United Kingdom recommended against its adoption. Indian has not adopted
it. The convention thus has little direct usefulness, some of its provisions are
being briefly indicated, however to show what can be called the international
consensus of opinion on the subject.
A contract to marriage differs fundamentally from a commercial contract,4 since
it creates a status that affects the parties themselves and the society to which
they belong. It is sui generis. It is fulfilled on the solemnization of the
marriage ceremony, and thereafter there is a change in the law that governs the
relationship between the parties. As far as matrimonial causes are concern they
are now generally taken to include petition for divorce, nullity of marriage,
judicial separation and presumption of death and dissolution of marriage as well
as similar foreign proceedings which may fall recognition here.
Matrimonial Causes Matrimonial causes are now generally taken to include
petition for divorce, nullity of marriage, judicial separation and presumption
of death and dissolution of marriage as well as similar foreign proceedings
which may fall recognition here. The rules relating to the jurisdiction of the
courts and to the recognition of the foreign divorces, annulments and judicial
separations are, in essence, the same for all three matrimonial causes, and
therefore be examined together, identifying where appropriate any rule which do
not apply to all three.
It will be seen that the one major area of difference remaining concerns the
determination of the law to be applied by the English Court. It is also
necessary to discuss a further preliminary issue, namely whether an English
court will assume jurisdiction to grant matrimonial relief in the case of an
actually or potential polygamous marriage.
Polygamous Marriages and Matrimonial Relief
- In Common Law Until 1972, the rule of English Law was that the parties to
a polygamous marriage were "not entitled to the remedies, the adjudication,
or relief of the matrimonial law of England." It meant that, in the case
of a polygamous marriage, the court would grant a divorce, a decree of
nullity even where the petitioner claimed lack of capacity to enter a
polygamous marriage, or a decree of judicial separation. It can be
realized, however, that fundamental reform was called for a view of the
number of immigrants from jurisdictional where they had contracted valid
marriages in polygamous form. A substantial number of people, permanently
residents through not domiciled in England, were denied all matrimonial
- Matrimonial Causes Act, 1973
The entire above rule have been changed now and Section 47 of the Matrimonial
Causes Act, 1973 makes it available to the parties to an actually polygamous
marriage a wide range of matrimonial relief, 36 namely decrees of divorce,
nullity, judicial separation, presumption of death and dissolution of marriage,
order for financial provisions in the cases of neglect to maintain, variations
of maintenance agreement, orders for financial relief or relating to children
which are ancillary to any of the preceding decree or order, order made under
Part I of the Domestic Proceedings and Magistrates" Court Act 1978, order for
financial relief after a foreign divorce, annulment or legal separation and
any declaration under Part III of the Family Law Act 1986 involving a
determination as to validity of a marriage. Indeed it has been said that the
effect of section 47 of the 1973 Act is to abolish entirely the old rule, so
that all forms of relief which can be classed as matrimonial are now available
in the case of polygamous marriages.
- Remaining Problems
Where the party to an actually polygamous marriage brings proceeding for divorce
alleged irretrievable breakdown of the marriage, difficulties may arise over
adultery, unreasonable behaviour or desertion as proof of breakdown. If a
wife alleges that her husband has committed adultery with another wife, such a
claim will usually fail because, "it is an essential element of adultery that
intercourse has taken place outside the marriage relationship i.e. between
persons not married to each other. This being so, intercourse with a wife could
not be adultery." In terms of policy this conclusion seems right if both the
marriages were entered into in polygamous form. It has been said that in such a
case there has been no breach of the obligation of fidelity imposed by the law
governing the marriage, followed by a valid polygamous one.
If a wife divorces petition is based on the husband's unreasonable behaviour,
the court will have to examine all the circumstances of the marriage 45 and it
been also held that the taking by the husband of a second wife is unreasonable
behaviour towards the first. Similarly, if a husband's petition is based on
desertion by the first wife, the fact that he was the validity married a second
wife has been held to give the first wife reasonable ground for leaving him.
- Divorce and Judicial Separation
It was led by the Privy Council in Le Mesurier v. Le Mesurier, that as per
international law, the domicile for the time being of the married pair affords
the only jurisdiction and only true test of jurisdiction to dissolve their
marriage. The essence of the rule in this case was that there should be only one
test of jurisdiction and only one court capable of dissolving a particular
marriage, the court of the parties domicile.
The Matrimonial Causes Act, 1937,
provided that the Court should have jurisdiction to grant a divorce, in
proceeding by a wife, notwithstanding that the husband was not domiciled in
England, if she had been deserted by her husband, or the husband had been
deported from United Kingdom, and the husband was immediately before the
desertion or deportation domiciled in England. These enactments were
confined to proceeding by a wife. They did not extend to cross-petition by a
respondent husband. The exercise of the English Courts jurisdiction in
proceeding for divorce is subject to rules requiring or enabling the court to
stay those proceedings in certain circumstances.
- Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions for the
nullity of marriages was one of the most vexed and difficult question in the
whole of the English conflict of laws. An enormous simplification of the law was
effected by section 5(3) of the Domicile and Matrimonial Proceeding Act 1973.
This provides that the English Court have such jurisdiction to entertain such
petition if (and, subject to section 5(5), on if) either party to the marriage
- Is domiciled in England on the date when the proceedings are begun
- Was habitually resident in England throughout the period of one year
ending with the date, or
- Dies before that date and either was at death domiciled in England, r
had been habitually resident in England throughout the period of one year
ending with the date of the death.
Without this insignificant exception, the bases for jurisdiction in nullity of
marriage are now the same as in divorce and judicial separation. A voidable
marriage no longer confers the husband's domicile at the date of the
marriage. The bases for jurisdiction are now same whether the marriage is
alleged to be void or voidable. It is therefore no longer necessary to consult
foreign law i.e. the law of the husband's domicile at the date of the marriage.
Choice of Law
The question of choice of law has never been prominent in the English rules of
the conflict of laws relating to divorce, which has always been treated as
primarily a jurisdictional question. English Court when deciding whether to
recognize foreign divorce have never examined the ground on which the decree was
granted in order to hand, when English Court have themselves assumed
jurisdiction, they have never applied any other law than that of England. In
English law the only possible alternative to the lex fori would be the law of
No difference between them could exist before 1938, because
English courts did not exercise jurisdiction unless the parties were domiciled
in England. The Court of Appeal determined the question of divorce by the law
which would be applicable thereto if both the parties were domiciled in England
at the time of the proceeding, i.e. English law. The rule may be justified on
the ground that it would be highly inconvenient and undesirable from the
practical point of view to apply foreign law in English divorce suit. Again, to
require English Court to dissolve marriage an exotic foreign ground would be
distasteful to judge and unacceptable to public opinion.
- Judicial Separation
Unlike divorce a vinculo matrimonii, judicial separation was a remedy granted by
the ecclesiastical court before 1858. There it was called divorce a mensa et
thoro (divorce from bed and board). The principle effect of a decree was (and
is) t entitle the petitioner to live a apart from the respondent, but not to
dissolve their marriage nor enable either party to remarry. The remedy is sought
chiefly by person who have religious scruples about divorce. It has never been
doubted that the English court will apply English domestic law and no other,
even if the parties are domiciled abroad.
- Nullity of Marriage
A nullity decree is concern with the validity of the creation of a marriage,
unlike divorce which dissolves a marriage which is admittedly validly created.
This means that the choice of law issues in nullity is essentially the same as
those already examined in context of marriage. The reason why the choice of law
for nullity is more difficult area than divorce is that the effect of annulment
varies according to the particular ground in issue and they vary in relation to
the same ground even within United Kingdom. Some defect avoids a marriage ab
initio, i.e. render it void, whilst other merely renders it voidable. If one
party is below minimum age of marriage or is already married, English Law
regards the marriage as void. In Scotland, on the other hand, lack of
consent also renders the marriage void ab initio.
There are further differences in relation to the effect of an annulment. The
annulment of a void marriage has retrospective effect; it declares the marriage
never to have existed. However the position is different in England in case of a
voidable marriage. It has been suggested that, as annulment of a voidable
marriage and divorce decree both only have prospective effect, the law of the
forum should be applied to the former as to the latter.
Recognition of Foreign Divorces
The English law of recognition of and foreign divorces has been codified and
reformed by the Recognition of Divorce and Legal Separation Act, 1971. Under
this, the English Court would recognize a foreign decree of divorce if it is
recognized as valid by the court of the domicile of parties.
grounds were laid down for the recognition in 1971:
- At the time of institution of the proceeding either spouse was a
habitually resident in the country were divorce was obtained,
- At the time of institution of the proceedings either spouse was a
national of the country were divorce was obtained.
An extra-judicial divorce, if pronounced in England, will not be recognized by
English Courts. If, on the other hand, it was granted abroad, then it will be
recognized if it is effective under the law of the country where it was obtained
and at that date, each party was domiciled in that country and the other was
domiciled in a country which recognizes such decree, provided that neither party
was habitual resident in the UK for one year immediately preceding that date.
A foreign decree may be refused recognition on the policy grounds, such as want
of proper notice, want of opportunity to take part, the absence of an official
document, or contrary to public policy.
The necessity of establishing a marriage as a prerequisite to legal procedures
might arise in a wide variety of contexts. The issue could relate to a number of
distinct legal provisions. The establishment of matrimonial causes, such as a
petitioner for divorce and judicial separation, therefore assumes that the
parties are related to one another as husband and wife. According to English
law, the characteristics of a marriage must be consensual in order for there to
be a husband and wife relationship. These characteristics must be determined by
each legal system. The aforementioned project's conclusion states that the case
law only serves to demonstrate that an inadvertent query does not trigger a
Each case is therefore resolved based on its own facts and circumstances. If
either party was a domiciled in England or had been a habitual resident for one
year ending with the date of the death, or if either party had died prior to
that date and either was a domiciled in England or had been a habitual resident
for one year ending with the date of the death, the English Court would have
jurisdiction to hear proceedings for nullity. A marriage may be declared to be
void or voidable by a nullity ruling.
- Paras diwan pg. 85
- VALIDITY OF MARRIAGE: A STUDY IN PRIVATE INTERNATIONAL LAW, Ms. Indrani Kundu1
- See Hyde v. Hyde, (1866) LR 1 P & D 130
- See Cheshire & North, Private International Law, thirteenth edn, p. 741.
- Risk v. Risk  2 All ER 973
- A Court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration concerning the validity of a marriage by reason only that either party to the marriage is, or has during the substance of the marriage been, married to more than one person
- Chaudhary v. Chaudhary,  Fam 148 at 151
- Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15
- Matrimonial Causes Act 1973, Section 47(3)
- Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when Part II of the Family Law Act, 1996 is bought into force
- Supra note 11
- Supra note 11
- Section 1 of Domicile and Matrimonial Proceedings Act, 1973
- Matrimonial Causes Act 1973, Section 11.
- Supra note 11