VALIDITY OF INTER-STATE MARRIAGES AND ITS CORRELATION WITH THE DOCTRINE OF RENVOI IN THE INTERNATIONAL LAW: AN ASSESSMENT
BY Abhishek Sunar
Advocate at District and Sessions Courts & High Court, Sikkim. BA.LLB (Hons.), LL.M., Alliance University, Bengaluru-Karnataka. Email: abhisheksunar99@gmail.com.
DOI - https://zenodo.org/doi/10.5281/zenodo.11115721
ABSTRACT
Renvoi has been described as a “dirty word” in Anglo-American jurisprudence. A detrimental fixation by conflicts scholars on the rare apparition of the “endless chain” has engendered a climate of hostility to the doctrine, with commentators describing Renvoi as “insidious,” and “intrinsically illogical.” Such antagonism has spawned a multitude of metaphors and has resulted in the often-unthinking rejection of Renvoi by many scholars and judges in the context of inter-state marriages and matrimonial issues. It is imperative to comprehend the transnational movement of people with an atrocious surge in the foreign marriages and divorces reflecting a significant rise in the inter-state marriage disputes wherein tis not unusual to perceive cases where the husband and wife reside in different countries, possess domicile in a third country and their children reside in a fourth country. This has become cumbersome to deal with this faction as the internal laws of different nations contrast widely from each other while implying the application of the foreign domestic law from an international standpoint. Hence, there is a need for proper codification and unification of the rules of conflict of laws relating to the rule of law and gender justice on the one hand and the need to protect the basic human rights of parties to a marriage on the other which in most of the scenario demand internationally accepted standards and norms to deal with inter-personal and inter-state marriage disputes. This paper aims to provide some clarity on the usefulness and the practical application of Renvoi.
Keywords- Renvoi, Validity of Marriage, Conflict of Laws, Contract, Choice of Law, Inter-State Marriages, Foreign-Domestic Law, Private International Law etc.
I. INTRODUCTION
A. Background
The doctrine of Renvoi is a subset of the choice of law rules. However, the current trends in Private International Law indicate that the countries at present are accenting synchronization and harmonize these rules while implying that they are giving more importance to the recognition rule over the choice of law rules. This is for the minimal reason that recognition rule is more efficient than the choice of law rules. Owing to such developments, the doctrine of Renvoi at present has become obsolete. But, since recognition rule can’t be applied effectively in all the areas of Private International Law, making harmonization of rules in those areas very difficult, if not impossible.
Thus, in those areas the choice of law rule still takes preference over the recognition rule. Whereby, the basic understanding of marriage is one such area of Private International Law where the choice of law rule is preferred over recognition rule. As such Renvoi still has its applications in matters pertaining to inter-state marriages which are allied and related to the formal validation of marriages, remarriage etc.[1] The emphasis of this research shall be upon the specific area concerning the formal validity of marriage in consonance with the applicability to the Principle of Renvoi,[2] and to methodically examine the implications and claims assimilated for the promising stance of this doctrine referred in the Private International Law (PIL) Rules.[3]
B. Research Problem
The doctrine of Renvoi is considered to be a dying doctrine. The paradigm shift in the International Private Law has led towards harmonization of its rules wherein more and more countries have initiated to denounce this age-old doctrine. However, when it comes to the validity of inter-state marriages, the usefulness of the Renvoi doctrine becomes perceptible and incontestable. All the prevailing notions of Private international law, that deals with the validity of inter-state marriages, are established on the choice of law rules, and so relies on the doctrine of Renvoi. However, the implementation of this doctrine is used carefully only as an alternative rule in situations where it brings promising results, but this stretches an escalation to non-uniformity in respect to the question of jurisdictional character to entertain pertaining matters which would invoke the applicability of the domestic law in relation to the procedure which has to be followed in accordance with the foreign law while giving due regard to the interest of a foreign national, in the application of its own laws.[4]
Consequently, different results and outcomes are perceived through the applicability of diverse statues and laws governing the parties to determine their legitimacy to the marriage and to utilize the legal safeguards or mechanisms available in their capacity to acknowledge the functionality and recognition of inter-state marriages which are divergent from one legal system to another legal system.
The preliminary observations in such dissuading situations are not limited to immigration petitions for annulment, divorce, and judicial separation; social welfare legislations, succession, matrimonial financial relief and even in criminal proceedings including those for bigamy, cruelty, desertion, and assault.[5] Therefore, it is essential to identify the appropriate law and its application irrespective to the place of celebration or conception of the formal validity of foreign marriages and it must consult not only the particular provisions relating to the matter in issue, but also the rules of the conflict of laws governing in that state or country while validating or adjudicating issues related to inter-state marriages .[6]
C. Existing Legal Situation
In the area of formal validity of marriage, even when there is no previous antecedent or case law to corroborate it, the application of Renvoi can be inferred, as the principle of lex loci celebrations would apply. It is evident from the cases of Taczanowska v Taczanowski or Re Lando’ s Estate[7] that the doctrine of Renvoi will be applied where the terms of an international agreement require so. Therefore, the doctrine is to be applied under the Hague Convention on Celebration and Recognition of the Validity of Marriages.[8] In accordance with this convention a marriage shall be celebrated where the future spouses meet the substantive requirements of the internal law of the State of celebration and one of them has the nationality of that State or habitually resides in that country or State. The other principle is lex personalis, i.e. use of personal laws of the people who are about to get married, which is regulated by the Commonwealth of Independent States (CIS) Convention (1993).[9]
It consists of two sub principles: lex patrie, i.e. use of laws of the country whose citizens are to join in matrimony, and lex domicil, i.e., the use of laws of the country where the couple or the parties perpetually lives. The CIS Convention states that marriage conditions for each person are influenced by the laws of the country where the citizens originally belong or is the resident, and for people who do not have citizenship, by laws of the country where the couple permanently lives. Thus, all of the contemporary principles used in establishing validity of inter-state marriages calls for the application to the doctrine of Renvoi.[10]
D. Significance of the Study
The converging transformations in the international dominions and progressions from the modern-day forthcomings have disseminated new proportions to embrace the development of a promising global synchronization towards the rules and policies influenced by the Private International Law. Wherefore, it is quite evident to witness the contemporary position of the different state actors in deferring from the application and enforceability of the doctrine of Renvoi. The challenge is to ascertain the validity of marriage in a manner that can be universally acceptable within the recognized standards of any municipal or the domestic laws. The moment one person is married to another from diverse legal background, there arises a confusion as to the choice of law governing the validity of marriage. Thus, it is quintessential to ascertain and evaluate the usability of this doctrine while conceptualizing its significance in avoiding conflict of laws and juridical issues concerning with the laws of two or more countries. Additionally, it is imperative to determine whether this doctrine has become obsolete or demands to necessary reformations or amendments in the approach which could lead to its utter abolition and abrogation. [11]
II. RELEVANCE OF RENVOI IN ESTABLISHING FORMAL VALIDITY OF MARRIAGES.
The applicability of Lex loci celebration is the oldest proposition that subsist to exempt the prohibition of the domicil of either of the parties intended to have extra-territorial operation or based on fundamental public policy of the prevailing choice of law systems.[12] It is the leading principle for determining the formal validity of marriage:[13] "There is no rule more firmly established in Private International Law than that which applies to the maxim locus regit actum in understanding the formalities and accepted standards of a valid marriage”. Moreover, the application of the law of the place of celebration (alternatively, lex loci celebrationis) to matters associated with the disposition is nearly fundamental.[14] There are, of course, exceptions wherein the directives to establish and validate marriages which have been declared invalid or null under the law of the place of celebration or with an alternative reference often made either to personal law, or the application of the doctrine of Renvoi is used (the forum applies the law looked to by the choice of law rules of the place of celebration).[15]
The application of the doctrine of Renvoi has been applied in multifaceted cases relating to the validity of a marriage. In Re Lando’s Estate[16] the case intertwined around two individuals who were the inhabitants belonging from Minnesota, USA who underwent and solemnized a marriage ceremony in Germany, and subsequently, co-habited in Austria. However, the person holding himself out as a minister was in fact not authorized to conduct marriage ceremonies in Germany, rendering the marriage a nullity in accordance with the German domestic law. Hence, when called upon to decide whether the wife could act as administrator for the deceased husband’s estate, the Minnesota Court first referred to German law as the law of the loci celebrationis, which seemed to indicate that the marriage was void. However, the Court also found that if a German Court were seized of the dispute, it would apply its choice-of-law rule and then refer to the law of the citizenship of the parties in order to determine the formal validity of the marriage, namely Minnesota law, in which the marriage would be presumptively valid. Accepting the reference back to Minnesota law, the Court accordingly held that the wife could act as the administrator for the estate belonged to her deceased husband. Furthermore, It appears that the same outcome would be reached in English law. Though there is no authority directly on point, dicta in Taczanowska v Taczanowski[17]suggest such a result. In this case the Polish nationals were married in Italy in accord with the formalities required by Polish government but not in accordance with the Italian law.[18] The Court of Appeal noted that it would have upheld the marriage on the basis that Italian choice-of-law rules permitted the compliance with the law of the parties’ common nationality, but ultimately the Court was able to uphold the marriage on another ground. Although Dicey notes that it is a “legitimate inference” that courts would use the doctrine of Renvoi to uphold a marriage in such circumstances, he also posits that the argument raised for “rules of alternative reference” Renvoi, and not “consistently applied choice-of-law rule” Renvoi, in order to ensure that the possibility of upholding the marriage is amplified.[19]
It is submitted that this assertion rests on the assumption that (ut res magis valeat quam pereat) is the driving force behind decisions such as in the cases of Lando and Taczanowska. It is possible that the pursuit of uniformity of result is the principal motivation behind such cases instead, along second restatement lines. This would especially appear to be the case in light of other cases in which courts have used the doctrine of Renvoi to strike down the validity of a marriage.[20]
The author is inclined to accept the Diceyian assumption that the doctrine of Renvoi is generally used in personal status cases and in order to uphold the validity of marriages in conformity to the domiciliary law of each of the parties solemnizing their marriage on aesthetic grounds; it conflicts with their sense of international comity.[21]
This certainly appeared to be the principal concern in Lando’s Estate and Taczanowska. However, if we accept this as the goal, then we must surely accept that these cases are actual examples of the doctrine of Renvoi being applied as an “escape device”, or to provide “rules of alternative reference”, rather than of Renvoi being applied consistently in a result-blind fashion as in cases concerning title to immovable property.
A. Challenges in applying Renvoi to establish formal validity of marriages
The noteworthy challenges and impediment arise where the choice of law rule of the foreign law, which is designated as the lex domicili by the forum's conflict rules, the doctrine of Renvoi which delves towards the issue in question either to the lex fori or to a third law as being the lex patriae of the parties or vice versa. The question which arises is whether the forum's reference to the foreign law should be taken as a reference to the whole of that law, inclusive of its conflict rules. The overwhelming weight of opinion generally is to facilitate from applying the relevant foreign law, including its choice of law rules. It follows that the forum must give effect to the relevant foreign conflict rule whenever it refers either to the domestic law of that country, or to another law which it regards as the appropriate law by which the issue of capacity must be determined.[22]
Dicey & Morris, explain that: “The problem of Renvoi arises whenever a rule of the conflict of laws refers to the 'law' of a foreign country, but the conflict rule of the foreign country would have referred the question to the law of the first country or to the 'law' of some third country.” The problem may be resolved in a various different methods. The Court may apply the internal law of the foreign country or may “accept the doctrine of Renvoi” from the conflict rules of the foreign country or may decide the case in the same way as the foreign court would have decided it.
It is interesting to note that whether the doctrine of Renvoi may be used only to sustain a marriage which in actual fact is “not entirely transparent”[23] There is no clear authority on this question, the academic commentators13 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. Limping marriages and conflicting decisions will ensue if the forum's authorities apply the domestic law of the designated lex causae without taking into consideration its relevant choice of law rule.
The practical significance of using the doctrine of Renvoi has been argued on the basis that it achieves international uniformity of status and decisions. Furthermore, the desire to prevent creation of limping marriages appears to be a dominant motive in favor of accepting this doctrine of Renvoi, so the forum's authorities should permit the celebration of a marriage or hold it as valid if, and only if, it is recognized as such by the relevant lex causae. "Since such recognition depends, in the first place, on the conflict rules of the relevant foreign law, those rules must be taken into description by the forum. In the case of Brook v. Brook, two persons, domiciled in England and related to each other by prohibited degrees of relationship according to the English law, went to Denmark and married each other. the parties to the marriage were not allowed by the English law to marry each other as the relationship they share came under the prohibited degrees of relationship and they were related to each other. The House of Lords, while determining the circumstances of this case, held that the marriage was invalid as it fell under prohibited degrees to commensurate a marriage.[24]
It is deferentially proposed that the acceptance of the doctrine of Renvoi is flawlessly justified if the "purpose and the policy of the forum's reference to the personal law is to prevent the creation of limping status", and to achieve uniformity of decisions given by the Courts and forums while applying the doctrine of Renvoi in cases of inter-state marriages.
1. Current position of same sex marriages and the role of renvoi in establishing the formal validity of same sex marriages
Regarding the issue of same sex marriages, we know that the different states around the world have conflicting opinions and sentiments. Therefore, in order to account for the current practice of the different State actors, a distinction must be made between those countries and states which have welcomed the same sex marriages while acknowledging the stance of the different nation-states and countries which have not yet introduced or made any reformative changes in their legislations to welcome those marriage entered between same sex partners.
2. In Countries which are open to same sex marriages
There are certain nation countries or states which have unbolted the possibility of marriage to same sex partners, the prevailing solution seems to apply mutatis mutandis the rules drafted for 'classic' marriages.[25] In most case scenarios, there is no specific provisions adopted for the same sex marriages which are governed by the very same conflict of law’s provisions drafted for marriage in a traditional customary law generally universal. The application of the rules devised for the 'classic' marriage is obvious and self-explanatory: if a country decides to open up marriage to same sex relationships, there seems to be no good reason to reserve a specific conflict of law treatment to such marriage.
The application of 'classic' rules does not, however, resolve all questions. These rules may lead to the result that no marriage may be celebrated, if one of the future spouses possesses the nationality of a State whose law does not allow same sex marriage. At the same time, the possibility to conclude a same-sex marriage may attract individuals with few or no connection to the jurisdiction
Countries are therefore engaged in a balancing exercise between opening up the possibility to conclude a marriage, so that marriage is not reserved exclusively to nationals of those States where same- sex marriage is allowed and limiting it in order to avoid marriage tourism. In that regard, there is a clear distinction with different sex marriage, where such considerations are absent.[26] In order to deal with the restrictions imposed by the national law to the spouses, some countries which allow same sex marriage, have adopted specific rules aimed at making same sex marriage possible. So it is that in Belgium, Article 46-2 of the Code of Private International Law provides that if the law of one of the future spouses does not allow the marriage, this law will be ignored because it is deemed to be in violation of International Public Policy and Law.[27]
3. In Countries that are not open to same sex marriages
In continuum it has been an utterly established fact that there are many countries and state actors which have resisted and ostracized themselves to venture and welcome marriages pertaining to same sex partners, no specific rules have been adopted to deal with such marriages.[28] The question arises whether the same sex marriage should be dealt with as a marriage for the application of the conflict of law rules. Among others, Hugues Fulchiron has argued that even though Private International Law commands a wide reading of the concepts used in its rules, it would go as far to consider that a same sex marriage is a marriage recognized for the purpose and domain of private international law.[29]
According to Hugues Fulchiron, such an extension would touch upon the very “nature” of the marriage and would unavoidably have consequences for the domestic debate.[30] In Ireland, the High Court in December 2006 decided that a marriage celebrated in Canada between two Irish women could not be recognized in Ireland since the concept of marriage was under the Irish Constitution reserved for opposite-sex couples.[31]If a same-sex marriage cannot be dealt with as a traditional approach of an accepted notions of marriage, then there is a need for an alternative resolution to confront such challenges burgeoning in the society.
It has been suggested to comprehend the rules applicable for partnership and marriages. This solution had been suggested in Sweden, before this country opened up marriage to same sex spouses.[32] On applying this solution, the incidental question that arises is ‘What law govern the rights and obligations of same-sex partners? As no consensus has appeared on the question of the consequences of partnerships, it is necessary to distinguish between different approaches application of the lex loci registrationis. The rationale of the rule is clear: in view of the diversity and changes in the nominal laws in terms of partnerships and their outcomes, it was later apprehended that it would be premature to severe the umbilical cord between the partnership and the foundation of the civil society where 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 to dissolve the marriage.[33]
Without a basic consensus on the shape and effects of partnerships, these countries deemed it difficult to allow the application of a foreign law on a local partnership. At the same time, the lex loci registrationis principle guarantees the recognition of foreign partnerships. In principle, the adoption of the lex loci registrationis principle should solve the recognition puzzle easily: foreign partnerships are recognized provided that they comply with the requirements of the country of origin. Recognition is in principle therefore not an issue. It will be granted when the partnership is in compliance with the requirements of the state of origin. The lex loci registrationis rule works in other words both as a conflict of law rule[34] and as a recognition rule.[35] This is felt to be in compliance with the free movement imperatives of both the European Union and the ECHR.[36]
3.1. Role of Renvoi and other mechanisms in solving these issues
If one focuses on partnerships, the next question is whether to stay true to the application of the law of the country of origin, i.e. the lex loci registrationis, which is the current standard. Certainly, in the initial period of recognition towards same-sex partnerships or relationships, this solution seemed the only feasible option as the limited participation of different nation-states and countries recognized such episodes.[37] The rapid spread of this form of relationship has, however, greatly reduced the problem. It is therefore beneficial to enquire whether the application of the rules crafted for different sex marriages is warranted at present. Given the evolution of substantive law in many countries, it is certainly more realistic today to expect an alignment, albeit rationed, on conflict of laws rules crafted for different sex relationships.[38]
The Contemporary Private International Law provides ‘tried and tested mechanisms’ which offer solutions for these problems. The issue of the 'unworkable' primary rule which could affect the rule dealing with the consequences of a same-sex partnership could easily be solved. If the law of the state of registration could be applied if both the law of the common residence and of the common nationality prove unsatisfactory because they do not make any allowance for same-sex partnership. This could at least in part obviate the need for the technique of 'adaptation', which requires to examine whether there exists an 'equivalent' institution in the law declared applicable.
If the adoption of these nuances to the conflict-of-laws rules seems too complex, one could also contemplate a mixed system, whereby access to the partnership would remain subject to the lex loci registrationis, while the consequences would be subject to a complex rule including descent provisions related with cases where the law declared applicable does not acknowledge the degree of partnership or marriage.
An additional technique worth considering is the mechanism of Renvoi: this is particularly relevant since the conflict of laws rules adopted by States vary widely. The doctrine of Renvoi would help promote decisional harmony. Indeed, the application of the lex loci registrationis principle as a recognition rule does not necessarily allow a smooth recognition. The reference to the law of the country as a mere reference to the substantive provisions of the law of origin, without any possibility to take into account the conflict of laws provision could possibly lead to a peculiarity in the recognition process. This has been made clear by seeing how some states have specifically resorted to the application of this doctrine of Renvoi to tackle this issue.[39]
III. OBSERVATIONS AND RECOMMENDATIONS
The principle of upholding the validity of the marriage has been supported by a number of writers. The reason given is because of the general social policy and the traditional aspects which are in favor of inter-state marriages. In favor of referring to the application of Renvoi for establishing formal validity of marriages, two important arguments have been made. First, it ‘would tend to promote greater uniformity of decisions.’[40]Additionally, this approach would give support and benefit the matrimonii principle. If the parties can comply with either the internal law or the choice of law rules of the lex loci celebrationis[41] then the parties would be able to have the validity of their marriage recognized even where it was celebrated in defiance of the relevant law prescribed by the lex loci celebrationis, in other words, the doctrine of Renvoi could only be used to validate a marriage, but not vice versa to invalidate it.
This is only possible when reference is made to the lex loci celebrationis[42] which is considered to be to the complete law of that country rather than to its internal law alone. Another thing to mention is that a marriage is only valid after considering the potential of each of the parties sanctifying the marriage in accordance with the law of his or her habitual residence, the capacity to marry the other. To retain a valid marriage which did not fulfil this requirement would defeat the interests of the country of the habitual residence of one of the spouses. So far as the doctrine of Renvoi is concerned, as in the case of formal validity, it would be best if the doctrine is applied in respect of capacity to marry.[43] Considering that if the parties fail to comply with the substantive requirements of the lex loci celebrations does not render invalid a marriage that is 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.
Unquestionably, 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.
IV. CONCLUSION
The doctrine of Renvoi in relation to the formal validity of marriage has been discussed recently by the English and Scottish Law Commissions.[44] Importance has been given to the factors which supports the application of Renvoi. It was shown that application of Renvoi leads to desirable effects, such as promoting uniformity of status and preventing creation of limping marriages. Furthermore, it is admitted that it is consistent with the principles of favor matrimonii and harmonization of decisions. Therefore, reference to the lex loci celebrationis “should be construed as a reference to the whole law of that Country (including its rules of private international law) and not merely its domestic rules. It is stressed that reference to the lex loci celebrationis should be, prima facie, a reference to its choice of law rules. Hence, the reference to the lex loci cannot be regarded as alternative orientation towards any domestic rules or its conflict law rules, because: “such an alternative reference would be convenient for the parties and would obviously support the policy in favour of validity of marriages, but it would do so at the expense of producing a “limping marriage as between the country of celebration and our own.”[45]
The Scottish Law Commission has recently suggested that reference of the formal validity by the law of lex loci celebrationis to some other law by way of Renvoi is acceptable, and that the rule should be considered as part of the law of the place of celebration. The Scots Law Commission has therefore recommended that there is no need or necessity to state expressly in any future codification of the law that the doctrine of Renvoi is permitted.[46] In this aligned view, one might think that the acceptance of the doctrine of Renvoi leads to weakening in the rigidity of locus regit actum as an imperative rule under English and Scottish conflict of laws. Further, it will tend "to bring about a certain rapprochement to those countries whose conflicts systems admit a choice between lex loci and the personal law."[47]
Thus, the doctrine of Renvoi in the context of establishing formal validity of marriage has been resilient and useful whereupon the utilization of this doctrine should be used more effectively and oftener. Although, it is an ambitious plan for all the nation-states to reach an agreement on application of the secondary conflict rules, and resorting to more feasible approaches in adopting uniform conflict rules at a universal level in order to avoid the implementation of the doctrine of Renvoi.[48] The international character of the rules would secure those multistate interests[49] which are ascertained identically in any forum considering the issue.[50] Logically, no existent approach could reach uniformity of outcome in those areas while being consistent with the most appropriate law. It is fair to say that the functioning of this theory of Renvoi is incomplete and secondary rules should be adopted so as to make it operational and applicable. While such a solution might in theory be appropriate, we cannot ignore its practical implications. This theory is based on the presumption that the foreign law will always be fully proved, and the judge will be fully informed of the content and interpretation of the foreign law. One can be skeptical that this will in the end be possible. Besides, we have to take into account the public policy and the procedural law of the forum, which can impose further obstacles in the application of Renvoi. However, notwithstanding these factors, the presented approach is, at present, the most appropriate way for the courts to reach a just and predictable resolution in cases involving issues of formal validation of marriages.
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* Advocate at District and Sessions Courts & High Court, Sikkim. BA.LLB (Hons.), LL.M., Alliance University, Bengaluru-Karnataka. Email: abhisheksunar99@gmail.com.
[1] John Swan, A New Approach to Marriage and Divorce in the Conflict of Laws, 24, UNI. T. LA. JR. 17, 20-26 (1974), http://A New Approach to Marriage and Divorce in the Conflict of Laws on JSTOR.
[2] Rishi Khemnani, Doctrine of Renvoi in Private International Law, LAW CORNER (Apr.03,2024, 8:45PM), http:// Doctrine Of Renvoi In Private International Law - Law Corner.
[3] Dagnew Fitwi, The Problem of ‘Renvoi’ and the available remedies: A Theoretical Approach, ST. MARY’S UNIVERSITY, http://The Problem of ‘Renvoi’ and the Available Remedies (smuc.edu.et) ( last visited Apr. 02, 2024).
[4] Alan Reed, Essential Validity of Marriage: The Application of Interest Analysis and Depecage to Anglo-American Choice of Law Rules, 20, NYLS JR. INT. & COM. L. 388, 390- 391 ( 2000).
[5] Peter D. Maddaugh, Validity of Marriage and the Conflict of Laws: A Critique of the Present Anglo-American Position, 23 U. TOR. L. JR. 117, 118- 119 (1973).
[6] E.G.L., Renvoi in Divorce Proceedings Based upon Constructive Service, 31, Y. L. JR. CO. INC. 191, 192-193 (1921).
[7] Taczanowska v Taczanowski [1957] EWCA Civ J0606-5.
[8] The Hague Convention on Celebration and Recognition of the Validity of Marriages, 1978.
[9] Sergei Khabarov, Commonwealth of Independent States: Treaty on Creation of Economic Union, 34, INT. L. M. 1298, 1299 (1995).
[10] Usha Tandon, Validity of Marriage under International Private Law with Special Reference to 1978 Hague Marriage Convention: Towards Harmonization and Unification of the Rules of International Private Law relating to Marriage, 1 JCLC 32-47, (2013).
[11] Frederick Allemes, The Problem of Renvoi in Private International Law, 12, TR. GR. S. 63, 63-64 (1926).
[12] Robert Sharpe, The Multiple Uses of Renvoi in Rule, and Interest Analysis-Based Choice-of-Law Regimes, HARWARD LAW SCHOOL; UNIVERSITY OF CAMBRIDGE – TRINITY HALL, (Apr. 02, 2024, 10:30 AM), http:// The Multiple Uses of Renvoi in Rule and Interest Analysis-Based Choice-of-Law Regimes by Robert Sharpe :: SSRN.
[13] Hamid Tahenni, Conflict of law rules in marriage: an approach based on the co-ordination of the relevant policy considerations, UNIVERSITY OF GLASGOW, (Apr. 02, 2024, 11:30AM), http://Conflict of law rules in marriage: an approach based on the co-ordination of the relevant policy considerations | Hamid Tahenni - Academia.edu.
[14] Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker, Paul Torremans, James J. Fawcett, Cheshire, North, Fawcett: Private International Law (15th Edition) 35 (PRIVATE INTERNATIONAL LAW [PRIL],2008).
[15] Ibid. Cheshire's argument that " no system of law can allow the use of its procedure for the contracting of unions which it considers to be void," they would explain why a marriage will not be allowed to take place in one country rather than why it should be held void by the courts of another.
[16] In Re Lando’s Estate. Lando v. Lando, 127 N.W. 1125, 112 Minn.257 (1910).
[17] Supra Note 6.
[18] It was accepted, however, that Italian conflict of laws would recognize the validity of the marriage if it was valid by the national law of the parties at the time of the ceremony.
[19] A.V. Dicey, J. H. C. Morris and Lawrence Collins, The Conflict of Laws 84 (14th rev. ed. 2008).
[20] R v. Brentwood Superintendent Registrar of Marriages [1968] 3 W.L.R. 531; (1968) 3 All E.R.279.
[21] Geoffery Sawer, Conflict of Laws- Essential Validity of Marriage, AUSTRALASIAN LEGAL INFORMATION INSTITUTE (Apr.03, 2024, 6:30 PM), http://imageREAL Capture (austlii.edu.au).
[22] M.R. Chesterman, “A Limping Divorce”, 32, M. L. R. 84, 86-87 (1969).
[23] English Law Commission Working Paper No. 89 and Scottish Law Commission Consultative Memorandum No. 64, Private International Law: Choice of Law Rules in Marriage, para. 2 - 13 (1985) (Apr. 02, 2024, 10:40 AM), https://www.scotlawcom.gov.uk/download_file/view/89/>, accessed on March 23 2020.
[24] Brook v. Brook, (1861) 9HLC 193; 11 ER 703.
[25] Portugal does not seem to have adopted any specific conflict of law rules when it opened marriage to same sex partners. The Act N° 9/2010 of 31 May 2010 does not include any specific provision on cross-border aspects of same sex marriage.
[26] For marriages between man and woman, the current outlook is one where restrictions are imposed mainly because of marriages of convenience. See Foblets et D. Vanhuele, “Marriages of convenience in Belgium: the Punitive Approach Gains Ground in Migration Law”, Eur. J. Migration L., 263-280 (2006).
[27] See in general Gian Paolo Romand and Sofie Geeroms, “La loi belge du 13 février 2003 et le droit international privé: de la circulaire ministérielle du 23 janvier 2004 à l'alinéa 2 de l'article 46 du Nouveau Code”, in Aspects de droit international privé des partenariats enregistrés en Europe: actes de la XVIe Journée de Droit international privé du 5 mars 2004 à Lausanne, 105-136 (Schulthess,2004).
[28] Leaving aside the initiatives taken by various local authorities, such as cities or regions, which have attempted to give same-sex relationships some recognition. This has been the case in Italy, as has been documented by Nerina Boschiero, “Les unions homosexuelles à l'épreuve du droit international privé italien”, Rivista di diritto internazionale, 50-131. 55-57 (2007); As Boschiero notes, these initiatives do not purport to grant same-sex partners a real legal status, at most they are relevant for benefits granted by local authorities.
[29] Hugues Fulchiron, The Family Court Judge Taking Religious Convictions into Account: A French and European Perspective, 5 INT. JR. JURIS. FAM. 15, 16-18 (2018).
[30] The opinion of H. Fulchiron is, however, unchallenged. Other French authors have argued that a same-sex marriage should be considered a marriage for the purpose and aspirations of Private International Law.
[31] Katherine Zappone and Ann Louise Gilligan v Revenue Commissioners, Ireland and the Attorney General [2006] IEHC 404.
[32] In France the same suggestion and implication has been ascertained by those who consider that a same sex marriage cannot be deemed to be a legitimate marriage for Private International Law purposes [See H. Fulchiron, (fn. 20) at p.1255].
[33] Sneha_r, Matrimonial Cause in Private International Law, LEGAL SERVICE INDIA, (Apr.03,2024, 7:14 PM), http://Matrimonial Cause In Private International Law (legalserviceindia.com).
[34] Nishant Chaturvedi, Sugandha Nayak, Marriage & Matrimonial Causes in Private International Law: Issues in Common Law Countries, SSRN (Apr.3, 2024, 5:30 PM), http://Marriage & Matrimonial Causes in Private International Law: Issues in Common Law Countries by Nishant Chaturvedi, Sugandha Nayak :: SSRN.
[35] In fact, the need to have a rule dealing with recognition of foreign partnerships is the reason why in some countries a conflict of law rule was adopted in the first place. This is clear in France where the new art. 515-7-1 of the Civil Code was adopted primarily to make it possible for foreign partnerships to be recognized, see P. Hammje (fn. 26) at pp. 483-484.
[36] European Convention on Human Rights, Art. 12, European Court of Human Rights, Council of Europe, Rome, 4 XI. 1950.
[37] This is in fact the main argument used by Alan Devers to justify application of the lex loci registrationis in Concubinage in Private International Law, (Lyon, Paris 2004).
[38] Indrani Kundu, Validity of Marriage: A Study in Private International Law, RESEARCHGATE (Apr. 03, 2024, 02:30 PM), http://(PDF) VALIDITY OF MARRIAGE: A STUDY IN PRIVATE INTERNATIONAL LAW (researchgate.net).
[39] Netherlands has manifested to alternatively allow ‘Renvoi’ (See in particular Art. 5(2) (for the personal relationships) and Art. 7(2) (for the assets) under Wet Conflictenrecht Geregistreerd Partnerschap translated to English tis termed as the Registered Partnership Conflict of Laws Act.
[40] REPORT ON PRIVATE INTERNATIONAL LAW ASPECTS OF CAPACITY TO MARRY AND CHOICE OF LAW IN PROCEEDINGS FOR NULLITY OF MARRIAGE, THE LAW REFORMS COMMISSION, IRELAND (1985) (last visited Apr.03, 2024) http:// Report on Private International Law Aspects of Capacity to Marry and Choice of Law Proceedings for Nullity of Marriage (lawreform.ie).
[41] A.J.E. Jaffey, The Essential Validity of Marriage in the English Conflict of Laws, 41 M. L. R. 38, 46-47 (1978).
[42] Gavin Sheldon Pais, Material and Formal Validity of Marriage under Indian and English Law, BN’W (Apr.03,2024, 8:30 PM), http:// Material and Formal Validity of Marriage under Indian and English Law - Black n' White Journal (bnwjournal.com).
[43] Grodecki, J.K., Intertemporal Conflict of Laws, Int. En. Co. L., 3, 18 (1976); Lynch v. Provisional Government of Paraguay (1871) L.R. 2 P. & D. 268; Re Aganoor's Trusts Case (1895) 64 L.J. Ch. 521.
[44] The Law Commission Working Paper No. 89 and The Scottish Law Commission (Consultative Memorandum No.64), Private International Law: Choice of Law Rules in Marriage, paras 2.12,2.13,2.39-2.42 (1985); Scottish Law Commission [Scot. Law Com. No. 135] Report on Family Law, para. 14.4 (1992).
[45] Cf. Dicey and Morris op. cit., 10th Ed., p. 76, (12th ed.), 1993, p. 643; Cheshire and North, op. cit., 10th Ed, P 76; 12th ed., 1992, p. 577.
[46] Scottish Law Commission [Scot. Law Com. No. 135], Report on Family Law, 1992, para. 14.4.
[47] Dicey and Morris, op. cit., 10th Ed., p. 75; See Palsson, L., Int. Ency. Compo L., Vol III, p. 30; Mendes da Costa, op. cit., pp. 260 -261.
[48] David Alexander Hughes, The Insolubility of Renvoi and its Consequences, 6 JR. P. INT. L. 195, 197- 219 (2010) http://The Insolubility of Renvoi and its Consequences: Journal of Private International Law: Vol 6 , No 1 - Get Access (tandfonline.com).
[49] Larry Kramer, Return of the Renvoi, 66 NY. UNI. L.R. 979, 1003-1013, 1029 (1991).
[50] Supra Note 47.