Marriage and Conflict of Laws

Generally, conflict of laws is a term that relates to private international law. Typically, it comes into discussion when the laws of two countries clash on the basis of classification. This is most apparent when a married couple decide to end their marriage and seek matrimonial reliefs in a court of law.

How Conflict of Laws Arises in a Marriage

Conflict, as cynics may joke, begins with marriage. On a more serious note, conflict of law arises when two parties to something like a matrimonial dispute belong to two different countries. Let’s illustrate this with a simple example.

Suppose Tom and Mary are a married couple in England. Originally, Tom is from France but he marries Mary, who is from England. Suppose they want to divorce and remarry, there could be a conflict of laws between French and English laws.

How a Married Couple's Domicile Triggers Conflict of Laws

When the parties to a divorce belong to different domiciles, it is possible that the courts of their respective countries may treat it in conflict with one another. Remember, most countries are populated by people who practice religions, which in turn, have specific laws on matrimony and divorce issues.

In India, for example, the consent of parents or legal guardians is important in Hindu law for giving away (known as ‘kanyadan’) the bride. However, Indian Christian laws do not stipulate parental consent as mandatory but in certain Christian ceremonies, it is required.

A typical example of conflict of domiciliary laws is recalled: a minor domiciled in England (originally belonging to France) marries an English woman. In England, the consent of parents is not required but in France, it is. French laws would consider the marriage as voidable if it is solemnized without parental consent.

Conflict of Laws in Marriage: Ogden v Ogden

Marriage and conflict of laws are closely related. In Ogden v Ogden, [1908] P 46, the question before the English court involved conflict of laws between an English court and a French court. An English woman had married a French minor. The couple got divorced as the French guy had not sought his parents’ consent required under Article 148 of the French Civil Code. Later, she married an Englishman. This Englishman petitioned the court in England for a ruling of nullity because her previous marriage was still valid as per English law when they got married.

The English court decided that the French rule was formal and the Court of Appeal held that she was still the wife of the Frenchman. Interestingly, the French court pronounced the marriage as void. In many such cases of validity, the principle of lex loci celebrationis (English law) applies to the case.