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Encyclopedia > Marriage (conflict)
Conflict of laws
Preliminary matters
Characterisation  · Incidental question
Renvoi  · Choice of law
Conflict of laws in the U.S.
Public policy  · Hague Conference
Definitional elements
State  · Jurisdiction  · Procedure
Forum non conveniens  · Lex causae
Lex fori  · Forum shopping
Lis alibi pendens
Connecting factors
Domicile  · Lex domicilii
Habitual residence
Nationality  · Lex patriae
Lex loci arbitri  · Lex situs
Lex loci contractus
Lex loci delicti commissi
Lex loci solutionis  · Proper law
Lex loci celebrationis
Choice of law clause
Forum selection clause
Substantive legal areas
Status  · Capacity  · Contract  · Tort
Marriage  · Nullity  · Divorce
Get divorce  · Talaq divorce
Property  · Succession
Trusts
Enforcement
Enforcement of foreign judgments

In Conflict of Laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence. Image File history File links Scale_of_justice. ... Conflict of laws, or private international law, or international private law is that branch of international law and interstate law that regulates all lawsuits involving a foreign law element, where a difference in result will occur depending on which laws are applied as the lex causae. ... In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. ... In the Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. ... In Conflict of Laws, renvoi (from the French, meaning send back) is a subset of the choice of law rules and it is potentially to be applied whenever a forum court is directed to consider the law of another state. ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ... The choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally. ... Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ... The Hague Conference on Private International Law is the preeminent organisation in the area of private international law. ... For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... In all lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the lex fori, i. ... Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... The lex causae is the Latin term for law of the case in the Conflict of Laws. ... Lex fori is a private international law doctrine meaning the law of the court in which proceedings are being conducted. ... Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. ... The principle of lis alibi pendens applies both in municipal, public international law, and private international law to address the problem of potentially contradictory judgments. ... In Conflict of Laws, domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a persons status, capacity and rights. ... The lex domicilii is the Latin term for law of the domicile in the Conflict of Laws. ... In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. ... In English usage, nationality is the legal relationship between a person and a country. ... The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which... The lex loci arbitri is the Latin term for law of the place where arbitration is to take place in the Conflict of Laws. ... The term lex situs (Latin) refers to the law of the place in which property is situated for the purposes of the Conflict of laws. ... The lex loci contractus is the Latin term for law of the place where the contract is made in the Conflict of Laws. ... The lex loci delicti commissi is the Latin term for law of the place where the tort was committed in the Conflict of Laws. ... The lex loci solutionis is the Latin term for law of the place where relevant performance occurs in the Conflict of Laws. ... The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the Conflict of Laws. ... The lex loci celebrationis is the Latin term for law of the place where the marriage is celebrated in the Conflict of Laws. ... A choice of law clause in a contract is one whereby the parties to that contract specify which law (i. ... A forum selection clause is a clause in a contract in which the parties agree that any litigation resulting from that contract will be brought in a specific forum. ... The capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. ... In the Conflict of Laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called proper law of the contract. ... In Conflict of Laws, the choice of law rule for tort is the proper law. ... In Conflict of Laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. ... In modern society, the role of marriage and its termination through divorce have become political issues. ... For the religious process, see Get (divorce document) A get or gett (גט) is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din (בית דין), a rabbinical court. ... In Islamic Law, there are two forms of divorce known as the talaq and its less well-regulated version of triple talaq. ... In Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. ... In the Conflict of Laws, the subject of succession deals with all procedural matters relevant to estates containing a foreign element whether that element consists of the identity of the deceased, those who may inherit or the location of property. ... In Conflict of Laws, the Hague Convention on the Law Applicable to Trusts and on Their Recognition was concluded on 1 July 1985 and entered into force 1 January 1992. ... In the Conflict of Laws, issues relevant to the enforcement of foreign judgments are frequently regulated by bilateral treaty or multilateral international convention to facilitate the reciprocal recognition and enforcement of judgments between states. ... Private International Law, International Private Law, or Conflict of Laws is that branch of law regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied as the lex causae. ... This article or section does not cite its references or sources. ... Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ... A community usually refers to a group of people who interact and share certain things as a group, but it can refer to various collections of living things sharing an environment, plant or animal. ...

Contents

Public policy

The central political issue for each state is the choice between potential conflict and accommodation, between assimilation and the preservation of minority rights in a diversified society. Many nations formally adopt a policy to achieve a full cultural integration and a uniform identity for all their citizens no matter what their ethnic, religious social origins. Regardless whether this is a realistic aspiration, it contrasts starkly with a policy to allow "discrete and insular minorities" to form and retain their individual identities which may be seen as a question of equality: as to whether a modern state should be aiming for equality between its citizens or an equality between groups. Politics is the process by which individuals or relatively small groups attempt to exert influence over the actions of an organization. ... For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... The term minority rights embodies two separate concepts: first, normal individual rights as applied to members of racial, ethnic, class or religious minorities, and second, collective rights accorded to minority groups. ... Human relationships within an ethnically diverse society. ... One of the most influential doctrines in history is that all humans are divided into groups called nations. ... Culture (from the Latin cultura stemming from colere, meaning to cultivate), generally refers to patterns of human activity and the symbolic structures that give such activity significance. ... The word citizen may refer to: A person with a citizenship Citizen Watch Co. ... An ethnic group is a group of people who identify with one another, or are so identified by others, on the basis of a boundary that distinguishes them from other groups. ... Various religious symbols Religion is a system of social coherence based on a common group of beliefs or attitudes concerning an object, person, unseen being, or system of thought considered to be supernatural, sacred, divine or highest truth, and the moral codes, practices, values, institutions, traditions, and rituals associated with...


As an institution, marriage represents a significant set of values which helps to define how each state wishes to constitute the family unit, regulates sexual behaviour, and plans for the continued growth of population. The state may also allow religious qualities to be attributed to the relationship or, as an aspect of the constitutional separation in some countries between church and state, view it as no more than a form of domestic partnership. It will also reflect deeply held beliefs and prejudices on the age at which people may marry, the number of people who may enter the relationship, and whether same-sex marriage is acceptable. Questions on the legitimacy of any children may also be difficult to resolve. This article describes a type of political entity. ... To meet Wikipedias quality standards, this article may require cleanup. ... A state is a set of institutions that possess the authority to make the rules that govern the people in one or more societies, having internal and external sovereignty over a definite territory. ... Domestic partner or domestic partnership identifies the personal relationship between individuals who are living together and sharing a common domestic life together but are not joined in any type of legal partnership, marriage or civil union. ... Same-sex marriage is the legal union of two people who are of the same biological sex or gender. ... Freiheitsrechte Recht auf Leben, Freiheit, Eigentum, Sicherheit der Person Allgemeine, nur durch Gesetz beschränkbare Handlungsfreiheit Freiheit von willkürlichen Eingriffen in die Privatsphäre (Wohnung, Briefgeheimnis etc. ...


So long as people remain in their own states, they will understand the prevailing values and, whether willingly or not, decide on the extent to which they will conform. But, as attitudes change and travel between states becomes routine, governments have found it increasingly necessary to decide what forms of ceremony they will allow to create valid marriages in their own territories, and whether all forms of marriage, lawfully celebrated in another sovereign state, will be recognised for the purposes of immigration and access to social welfare and other benefits nominally available to a husband and/or wife and/or child of the family. The problem for each state as it acts as a host for new cultures and belief systems is that a failure to accept and accommodate the new social realities may simply drive the practice of the many customs underground where the potential for abuse is significant. If the law as officially published and the reality on the ground differ dramatically, this poses serious questions about the role of the judiciary in protecting the human rights and civil rights of the women and children who find themselves victimised by the failure of the law to offer them protection. Sovereignty is the exclusive right to exercise supreme political (e. ... // Balancing scales are symbolic of how law mediates peoples interests For other senses of this word, see Law (disambiguation). ... In law, the judiciary or judicature is the system of courts which administer justice in the name of the sovereign or state, and provide a mechanism for the resolution of disputes. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ...


The choice of law options

The standard choice of law rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved: Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ...


Status and capacity

Status and capacity are defined by the personal laws of the parties, namely: The capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. ...

The personal laws will usually define status in rem so that it is recognised wherever the individual may travel subject only to significant public policy limits. Hence, for example, as an aspect of parens patriae, a state will define the age at which a person may marry. If such a limitation could simply be evaded by the young person travelling abroad on a holiday to a country with a lower age limit, this would clearly breach the policy of the "parental" state. The same principle would apply to an adult who wished to create a polygamous marriage or to evade a restriction on consanguinity. In Family Law as opposed to the Law of Contract, there is also a strong case for legal capacity to be universally enforced to limit to ability of individuals to evade normally mandatory rules. The claims of the lex loci celebrationis to apply are weak given that the significance of the location may be no more than the convenience of their laws to those wishing to marry. The lex domicilii is the Latin term for law of the domicile in the Conflict of Laws. ... In Conflict of Laws, domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a persons status, capacity and rights. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which... In English usage, nationality is the legal relationship between a person and a country. ... In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. ... Civil law is the predominant system of law in the world, with its origins in Roman law, and sets out a comprehensive system of rules, usually codified, that are applied and interpreted by judges. ... Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem. ... Parens patriae is Latin for parent of the fatherland or parent of the homeland. ... In law, the Doctrine of Evasion is a fundamental public policy. ... Polygamy, literally many marriages in ancient Greek, is a marital practice in which a person has more than one spouse simultaneously (as opposed to monogamy where each person has a maximum of one spouse at any one time). ... Consanguinity, literally meaning common blood, describes how close a person is related to another in the sense of a family. ... Family Law was a television drama starring Kathleen Quinlan as a divorced lawyer who attempted to start her own law firm after her lawyer husband took all their old clients. ... In the Conflict of Laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called proper law of the contract. ... The lex loci celebrationis is the Latin term for law of the place where the marriage is celebrated in the Conflict of Laws. ...


The formal and/or essential validity of the marriage

The lex loci celebrationis or the law of the place where the marriage was celebrated is usually considered definitive on whether the ceremony has been effective to create the relationship of marriage (see nullity). In Conflict of Laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. ...


The lex fori

The lex fori as the law of the forum which will usually be the state where the spouses have sought to make their matrimonial home. This state will usually have a clear and direct interest in the applications of its policies to regulate the nature of relationships permitted to confer the status of husband and wife within their territorial boundaries. It may also attempt to regulate the behaviour of those who wish to cohabit within their territory although this may contravene privacy rights. Lex fori is a private international law doctrine meaning the law of the court in which proceedings are being conducted. ... Privacy is the ability of an individual or group to keep their lives and personal affairs out of public view, or to control the flow of information about themselves. ...


Discussion

There are serious problems of characterisation and the possibility of an incidental question in the Family Law field because of the strength of the prevailing attitudes and prejudices on sexual propriety. Hence, for example, given the increasing prominence given to the phenomenon of paedophilia, the issue of age in relation to sexual activity has come to represent a major issue for many Western states and, no matter what the claims of the lex loci celebrationis to be applied as the determinant of the validity of any alleged marriage involving young adults, the policies of the personal laws of the parties and the lex fori are often given greater prominence. These cultural responses to different customs are sometimes given impetus by an underlying lack of respect for people of different race, religion or ethnicity. Whereas the law is supposedly driven by the Doctrine of Comity and the principles of reciprocity, those who administer and apply the law are sometimes affected by local social or political pressures to disapprove "foreign" customs. In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. ... In the Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. ... Pedophilia (American English), pædophilia/paedophilia (Commonwealth English), or pedosexuality is the paraphilia of being sexually attracted primarily or exclusively to prepubescent children. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Comity is a term used in international law (and in the law governing relations between U.S. states) to describe an informal principle that nations will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. ... In international relations and treaties, the principle of reciprocity states that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind. ...


Religious forms of marriage

Where a society permits worship by a given religion, and worshippers wish to marry according to the tenets of their religion, the state must decide whether that ceremony will be effective to create a valid marriage (i.e. the place of worship and the members of the relevant clergy are authorised by the state for the conduct of marriage ceremonies) or whether a civil ceremony will be required to create a marriage. For example, the Islamic form of marriage is a contract between the bride and groom (or their proxies) known as a nikah. Some Islamic couples only go through a nikah ceremony and do not register the marriage with the civil authorities or go through a civil ceremony. When such a relationship breaks down, the wife is left without state protection that would normally be available if the marriage had been registered according to civil law. The situation is exacerbated if the husband refuses to grant a talaq and also refuses to make any provision. In states where there is no Sharia Court, the affected individuals' only recourse would be to the local civil courts, but jurisdiction would be difficult to invoke except under the parens patriae provisions to protect the best interests of any children. As to transnational marriages, there is no reason in principle why religious ceremonies effective under the lex loci celebrationis should not create marriages recognised as valid everywhere. Islam (Arabic:  ) is a monotheistic religion based upon the Quran, its principal scripture, whose followers, known as Muslims (مسلم), believe God (Arabic: الله ) sent through revelations to Muhammad. ... Nikah or nikkah (Arabic: النكاح ), is the contract between a bride and bridegroom and part of an Islamic marriage, a strong covenant (mithaqun Ghalithun) as expressed in Quran 4:21). ... In Islamic Law, there are two forms of divorce known as the talaq and its less well-regulated version of triple talaq. ... Sharia ( translit: ) refers to the body of Islamic law. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... Parens patriae is Latin for parent of the fatherland or parent of the homeland. ... Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well being of children. ...


Customary law marriages

In many states, culturally separate communities have retained their own traditions and laws on the family. This creates a problem for developing states as they begin the process of establishing a centralised system of law. In South Africa, for example, the Recognition of Customary Marriages Act 1999 retrospectively recognises as valid, all customary marriages so long as they are registered. Further, s2(3) of the Act provides that, if a person has entered into more than one customary law marriage, all valid marriages entered into before the commencement of the Act, are recognised. The Act similarly recognises all customary marriages entered into after the commencement of the Act where the High Court approves a written contract regulating the future matrimonial property systems for marriages (both present and prospective spouses must be joined in the application). This is a major departure from the previous legal position because customary marriages being potentially or actually polygamous, were considered against public policy and were not recognised under the formal law. This reversal was due to a recognition that it was impossible to enforce the prohibition and due to the fact that wives usually consent to the polygamous marriage. Where a state has produced formal laws to control recognition, this will establish a general framework under which international recognition can be managed. Where there is no formal rule within the lex loci celebrationis, a forum court could hear expert evidence on whether the marriage would be accepted as effective (see the public policy of favor matrimonii which creates a rebuttable presumption in favour of the validity of any marriage) but it will be difficult for the parties to justify their failure to comply with the local laws that unambiguously would have created a valid marriage. In law, a rebuttable presumption is an assumption that is made that will stand as a fact unless someone comes forward to contest it and prove otherwise. ...


Common law marriages

In some states, the legal acceptability of common law marriage is very limited. Some couples, whether because there are no local formalities relevant to them or because they have strongly-held prejudices against compliance with the local forms, decide to create a marriage either by a simple public exchange of vows (per verbis inter praesentes), or by habit and repute. Because the need for Comity between states requires respect for the legal systems, it is now very difficult to identify states with no local system for the celebration and registration of marriages, and even more difficult for the courts of one state to justify a decision to support the prejudices of two of its citizens against the laws of the second state. However, other states permit informal marriages to acquire legal status and, where this happens, there is no reason in principle why international recognition should not follow. In many jurisdictions, common-law marriage is a legal provision whereby two people who are eligible to marry, but who do not obtain a legal marriage, are nevertheless considered married under certain conditions. ...


The age of marriage

Culture changes slowly. Prior to 1951, in Northern Ireland, a boy of fourteen years of age and a girl of twelve years of age could validly marry at common law. The setting of the age at fourteen years for a boy and twelve years for a girl represents a not uncommon world standard for marriage, but reflects a feeling that although individuals may have reached physical sexual maturity, there should be a limit requring parental consent or prohibition (even with parental consent) until the individuals have reached an age at which they are deemed to have the capacity to take responsibility for their decisions on major life-changing commitments. This view of intellectual maturity has raised the age in Europe to sixteeen years of age and also up to 18 years old in some places. But modern states must still confront the issue of age when couples claim the status of a married couple when married abroad. For example, less than twenty years after the law was changed in Northern Ireland, the English courts considered Alhaji Mohammed v Knott [1969] 1 QB 1. Here, a Nigerian husband had celebrated an Islamic marriage in Northern Nigeria, which was a potentially polygamous marriage, with a 13 year old girl. Shortly afterwards the couple came to England and where they cohabited. A case was brought under s 62 of the Children and Young Persons Act 1933 claiming that the girl was in need of care, protection, and control, and that she was exposed to moral danger under s 2 of the Children and Young Persons Act 1963. The Nigerian form of marriage was effected by a simple contract between the parents or legal guardians of the bride and bridegroom. The bridegroom paid a dowry. Sometimes, but not always, the signing of the contract was followed by a religious ceremony and a marriage feast; and the bride was formally handed over to the bridegroom. There was no minimum age for the marriage of a girl, but it was unlawful for the bridegroom to live under the same roof or consummate the marriage until it was clear that the wife was sexually mature, which was conclusively presumed to be not less than the age of 9 and not more than the age of 15. Islamic law also permitted polygamy and a man could have more than one wife at the same time. The first instance court held that the girl was exposed to moral danger, and that a continuance of the association between her and the man, notwithstanding the marriage, would be repugnant to "any decent-minded English man or woman". On appeal, the Divisional Court held the marriage was recognised as valid. This and other cases of "child brides", one involving a 12 year old Iranian bride and the other involving a 13 year old Omani bride, caused some controversy in the United Kingdom and the Immigration Rules 1986 were introduced to bar persons under the age of 16 from entering the UK in reliance upon their status as a spouse. Nevertheless, for other purposes, such marriages will be recognised as valid so long as the parties had the relevant capacity under their personal laws and the ceremony was effective under the lex loci celebrationis to create a valid marriage. Motto: [citation needed] (French for God and my right)2 Anthem: UK: God Save the Queen Regional: (de facto) Londonderry Air Capital Belfast Largest city Belfast Official language(s) English (de facto), Irish, Ulster Scots 3, NI Sign Language Government Constitutional monarchy  - Queen Queen Elizabeth II  - Prime Minister Tony Blair... English law is a formal term of art that describes the law for the time being in force in England and Wales. ... A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. ... A dowry (also known as trousseau) is a gift of money or valuables given by the brides family to the grooms at the time of their marriage. ... The term polygamy (literally many marriages in late Greek) is used in related ways in social anthropology and sociobiology and sociology. ... Marriage is a relationship that plays a key role in the definition of many families. ...


Consent

In Western cultures, other than the age of consent, the issue of consent is also considered of fundamental importance and, if it is not freely given, it can prevent a valid marriage from ever coming into existence: see nullity. In Islamic law, a nikah contract is not valid if the parties do not consent, although there are differences in juristic opinion about exactly how the consent can be manifested. This supposedly lack of clarity has led some Western cultures to question the general morality of "arranged marriages", often stigmatising the system as being open to abuse and sometimes leading to forced marriages. In the English case of Szechter v Szechter, Sir Jocelyn Simon P. said that for duress to vitiate a valid marriage, it must be proved that: In Conflict of Laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. ...

  • the will of one of the parties had been overborne by a genuine and reasonably held fear;
  • this fear was caused by a threat of immediate danger for which the party was not himself or herself responsible, usually amounting to a threat of physical or fatal injury, or false imprisonment.

The test requiring an immediate danger never matched the practical realities facing individuals where the consequences of a refusal to marry might not be immediate, but nevertheless serious. In Hirani v Hirani (1982) 4 FLR 332, the Court of Appeal considered the case of a nineteen year old Hindu woman who was dating a Muslim man. Her parents told the petitioner that unless she married a Hindu of their choosing, she would be ostracised socially from her family and left to fend for herself. Under the circumstances, the Court agreed that the petitioner had acted without full consent in marrying her parents' choice of husband. Thus, it is for the courts of all countries to strike a balance between well-intentioned parental authority to arrange marriages in the face of a reluctant child, and unreasonble threats that would overbear the will of any reasonable person, while maintaining the trust of local communities whose cultures have included arranged marriages for centuries. As to transnational recognition, it will be difficult to disturb the validity of the marriage if no complaint of coercion was made around the time the ceremony was performed in the lex loci celebrationis or immediately the parties entered the state where proceedings were commenced. It would be more usual to use the local divorce system to terminate the relationship.


Consanguinity

In Christian cultures, the Biblical proscriptions contained in Leviticus 18 v6-18, are used as the basis for restricting marriage between persons who are deemed to be too closely related to each other. More generally, the restrictions fall into two classes:

  • where the parties are related by blood (consanguinity); or
  • where parties are related by marriage (affinity).

The limitations based on consanguinity derive from a policy of practical eugenics and reflect the increased possibility that such marriages will produce children with a genetic defect due to the limitations on their combined gene pool. The limitations based on affinity, by contrast, are predominantly legal and social in origin. The rules relating to affinity reflect the need to minimise the prospects of familial jealousies and dysfunction by preventing the intermarriage of people already related by marriage. Difficult questions arise on whether an adopted child may marry his or her adoptive parents, or the natural children of the adoptive parents. No matter what legislative decisions are taken, there will always be citizens who wish to evade the application of the law. There will be no problem if they relocate and establish a matrimonial home in a state that allows their marriage. But any attempt to evade such laws by going through a ceremony in a state that permits the marriage and then returning to the original state (which will usually be their state of domicile, nationality or habitual residence) will fail, and may even expose the couple to the risk of prosecution for incest or an equivalent offence. Consanguinity, literally meaning common blood, describes how close a person is related to another in the sense of a family. ... Look up affinity in Wiktionary, the free dictionary. ... It has been suggested that Dysgenics be merged into this article or section. ... This article or section may contain original research or unverified claims. ...


Polygamy

Polygamy may be polygyny (one man having one or more wives) or polyandry (one woman having one or more husbands) and it has been practised throughout history in almost all cultures, sanctioned by various religions where necessary to meet population or economic needs. For example, when disease, war or famine has reduced populations, the taking of several wives has been the solution to restoring population. In some economically poor areas where infant mortality is high but children are a vital source of labour to maintain the earning capacity of the family, polygamy provides more children. Yet, in more modern times, some Christian states despite the existence of polygyny in the Bible have defined marriage as the union of one man to one woman "to the exclusion of all others" and, in some cases, have criminalised bigamy or, as in Canada, have made polygamy an offence under the Criminal Code of Canada. Under s 293(a), everyone who enters into any form of polygamy or any "conjugal union with more than one person at a time" is guilty of an offence, and under s293(b), there is a separate offence for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage". The term polygyny (neo-Greek: poly+gune Many + Wives) is used in related ways in social anthropology and sociobiology. ... In social anthropology and sociobiology, polyandry (Greek: poly many, andros man) means a female forming a stable sexual union with more than one male. ... Polygamy, literally many marriages in ancient Greek, is a marital practice in which a person has more than one spouse simultaneously (as opposed to monogamy where each person has a maximum of one spouse at any one time). ...


Other states refer to the current religious practices within their territories as the test for legal acceptability: for example, the Marriage Law 1974 (no. 1/74) in Indonesia does not prohibit polygamy for those religions that allow it (i.e. Islam, Hinduism, Buddhism), but permits it with the consent of the existing wife or wives if: Hinduism (Sanskrit: , , also known as , ) is a religion that originated on the Indian subcontinent. ... Buddhism (also known as Buddha Dharma, Pali: बुद्ध धम्म, the teachings of the awakened one) is a dharmic, non-theistic religion, a way of life, a practical philosophy, and a life-enhancing system of applied psychology. ...

  • there is proof of sufficient financial capacity to maintain all spouses and children;
  • there are safeguards that husband will treat his wives and children equally; and
  • a court is satisfied that there are valid reasons for wishing to contract a polygamous marriage (e.g., that the existing wife is infertile, has an incurable disease, etc).

The issue of consent can be difficult though if the wife is mentally ill.


The converse is to be found in the halakhah and the Talmud where the general principle is that, "a woman cannot be the wife of two [men]" (Kid. 7a and Rashi). For a wife, the term kiddushin implies her exclusive dedication to her husband and there can be no kiddushin between her and another man while the first kiddushin subsists. Any purported marriage to another man is thus formally invalid but, nevertheless, requires a get to terminate it. A married man may celebrate a second marriage (and any others) unless he has specifically undertaken to his first wife, e.g., in the ketubbah, not to do so, the first wife refuses consent, or monogamy is the local custom. Thus, Ashkenazic Jews who live in Christian nations accepted a takkanah (a rabbinic law not deriving from the Talmud) banning polygamy in c. 1000 CE, while Sephardic Jews who live in Islamic societies have not followed this law. Halakha (הלכה in Hebrew or Halakhah, Halacha, Halachah) is the collective corpus of Jewish law, custom and tradition regulating all aspects of behavior. ... The first page of the Babylonian Talmud, Tractate Berachot, folio 2a The Talmud (Hebrew: תלמוד) is a record of rabbinic discussions pertaining to Jewish law, ethics, customs and history. ... Ashkenazi (אַשְׁכֲּנָזִי, Standard Hebrew Aškanazi, Tiberian Hebrew ʾAškănāzî) Jews or Ashkenazic Jews, also called Ashkenazim (אַשְׁכֲּנָזִי&#1501... A Rabbi (Classical Hebrew רִבִּי ribbī; modern Ashkenazi and Israeli רַבִּי rabbī) is a religious Jewish scholar who is an expert in Jewish law. ... In the strictest sense, a Sephardi (ספרדי, Standard Hebrew Səfardi, Tiberian Hebrew Səp̄ardî; plural Sephardim: ספרדים, Standard Hebrew Səfardim, Tiberian Hebrew Səp̄ardîm) is a Jew original to the...


Actually polygamous

At the time a secular court considers the validity of this marriage, there are already multiple spouses. In English law, for example, s2 Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abode with the result that any application from such a wife has to be considered in accordance with Paragraphs 278 to 280 of the Immigration Rules, which contain provisions to restrict settlement in most cases to one wife. But, for less controversial purposes, most states are willing to recognise actually polygamous marriages as valid so long as the parties had the capacity to enter into such relationships and the ceremonies were effective under the lex loci celebrationis. The right of abode refers to an individuals freedom from immigration control in a particular country. ...


Same-sex marriage

In traditional language, a marriage is defined as being a relationship between a man and a woman which courts have tended to define in terms of biological sex rather than assumed gender identity. While some states have expressed a willingness to consider allowing individuals of the same gender to enter into civil unions, the general trend is against according such relationships the cultural and religious "legitmacy" implicit in the monogamous version of marriage. The gender symbols used to denote a male or female organism. ... A civil union is one of several terms for a civil status similar to marriage, typically created for the purposes of allowing homosexual couples access to the benefits enjoyed by married heterosexuals (see also same-sex marriage); it can also be used by couples of differing sexes who do not...


But, on the issue of transsexualism, the European Court of Human Rights in Goodwin v UK and I v UK (July 2002) concluded that there is no justification for barring a transsexual from enjoying the right to marry. In Bellinger v Bellinger [2003] UKHL 21, (2003) Times, 11 April the English courts held that the non-recognition of change of gender for the purposes of marriage in s 11(c) of the Matrimonial Causes Act 1973 was incompatible with Convention rights. But the House of Lords did not consider that the issues raised in the case were suitable for determination by courts and left the matter for Parliament, which has now enacted the Gender Recognition Act 2004 and matches the majority of European states in permitting marriage in the adoptive gender role. The same rights may be allowed in Australia, Canada, and other culturally open states. Transsexual people are those who establish a permanent identity with the opposite gender to their birth Gender. ... European Court of Human Rights building in Strasbourg The European Court of Human Rights (ECtHR), often referred to informally as the Strasbourg Court, was created to systematise the hearing of human rights complaints against States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by... The Gender Recognition Act 2004 is an Act of Parliament of the British Parliament which allows transsexual people to change their legal gender. ...


More information available at Same-sex marriage Same-sex marriage is the legal union of two people who are of the same biological sex or gender. ...


References

  • Shah, Prakash. "Human Rights and Immigration Law". (2003) Vol. 52 International and Comparative Law Quarterly, 359-400.
  • Sona, Federica. "Polygamy in Britain". [1]
  • Formal Recognition of Customary Law: An Analysis of the South African Experience in Passing Legislation Recognising Customary Marriages. [2]

  Results from FactBites:
 
Marriage - Wikipedia, the free encyclopedia (5753 words)
Marriages are generally publicly declared in the context of a wedding ceremony.
Marriages may be mediated by religious or political institutions and are generally bound by conventions which establish rights and privileges, and which establish limits of consanguinity and other restrictions.
Conversely, a marriage is commonly held to require a sexual relationship, and non-consummation (that is, failure to engage in sex) may be held grounds for an annulment (as for instance in the of John Ruskin's abortive marriage).
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For example, the Islamic form of marriage is a contract between the bride and groom (or their proxies) known as a nikah.
The Nigerian form of marriage was effected by a simple contract between the parents or legal guardians of the bride and bridegroom.
In traditional language, a marriage is defined as being a relationship between a man and a woman which courts have tended to define in terms of biological sex rather than assumed gender identity.
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