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Encyclopedia > Nullity (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 actus
Lex loci solutionis  · Proper law
Lex loci celebrationis
Choice of law clause  · Dépeçage
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
Mareva injunctions  · Anti-suit injunctions

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. As in English Law, some classify marriages as either void or voidable; others have no concept of a voidable marriage; still others have a third category of “non-existent” marriage (e.g., Nichtehe in Germany). The decree of nullity may therefore be no more than a declaration that no marriage had ever come into being, i.e. it is void ab initio, or it may be equivalent to a decree of divorce, i.e., the marriage requires a decree to dissolve it. 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 procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as states, federated states (as in the US), or provinces. ... 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. ... This article does not cite any references or sources. ... In all lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the lex fori, i. ... This article does not cite any references or sources. ... 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. ... lex loci actus law of the place where the act occured that gave rise to the legal claim. ... 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. ... In law, dépeçage refers to the concept in the conflict of laws whereby different issues within a particular case may be governed by the laws of different states. ... 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 marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence. ... 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. ... The Mareva injunction (variously known also as a freezing order or Mareva order), in Commonwealth jurisdictions, is a court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment. ... In the area of conflict of law, anti-suit injunction is a court order that prevents an opposing party from commencing or continuing a proceeding in a foreign jurisdiction. ... 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. ... Annulment is a legal procedure for declaring a marriage null and void. ... 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. ... 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 Conflict of Laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence. ... English law is a formal term of art that describes the law for the time being in force in England and Wales. ... Ab Initio Software Corporation was founded in the mid 1990s by the former CEO, Sheryl Handler, and several other former employees of Thinking Machines Corporation, after the bankruptcy of that company. ... In modern society, the role of marriage and its termination through divorce have become political issues. ...


There is also wide disagreement internationally as to which choice of law rules should apply. In some states, the lex loci celebrationis deals with most issues of validity; in others, there is agreement that the lex loci celebrationis should determine whether a marriage is formally valid, but disagreement as to which connecting factor: nationality (the lex patriae), domicile (the lex domicilii) or habitual residence, should define essential validity. The Hague Convention on Celebration and Recognition of the Validity of Marriages (1978) makes only limited progress towards a harmonised position. In the EU, the "Brussels II" Regulation 1347/2000 of 29 May 2000 (effective from 1 March 2001) sets out the rules on jurisdiction, and the recognition and enforcement of nullity judgments and of parental responsibility orders for the children of both spouses (the "new Brussels II" Regulation 2201/2003 applies to cases arising on or after 1 March 2005, but the substance of the rules is unchanged). Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as states, federated states (as in the US), or provinces. ... The lex loci celebrationis is the Latin term for law of the place where the marriage is celebrated in the Conflict of Laws. ... 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... 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 international law, harmonisation refers to the process by which different states adopt the same laws. ... This article does not cite any references or sources. ... In the states of the European Union and elsewhere, parental responsibility refers to the rights and privilieges which underpin the relationship between a child and either its parents or those adults who have a significant role in its life. ... For other uses, see Child (disambiguation). ...

Contents

Relevant policies

Three public policies are relevant in the general Conflict system: Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ...

  1. Avoiding so-called “limping marriages”. Wherever possible, there should be international uniformity in defining a person's marital status so that people will not be treated as married under the law of one state, but not married under the law of another. However, there may be situations in which it would be quite unjust and inappropriate for the courts of one state to be bound by another state's laws as to status (see below).
  2. Favor matrimonii upholds the validity of all marriages entered into with a genuine commitment. But, as states become increasingly secular and allow the termination of marriage through no fault divorce and other less confrontational mechanisms, the policy for the recognition and enforcement of foreign decrees may be changing to favor divortii instead of favor matrimonii.
  3. Wherever possible, the results of any litigation should give effect to the legitimate expectations of the parties as to the validity of their marriage.
  4. That the application of all rules should, wherever possible, produce predictable and appropriate outcomes. There is a clear benefit that laws should be certain and easy to administer. Courts have the benefit of expert evidence and time in which to conduct their legal analysis. But the same issues arise far more often in everyday situations where immigration officers, social welfare and tax authorities, and businesses will have to decide whether persons claiming an eligibility or a liability based on their status as a spouse are validly married. If Conflict rules are obscure and complicated, this can result in real difficulties for all involved.

But the Conflict rules must be consistent with the forum's domestic policies in relation to marriage. Hence, the further policy considerations are: No-fault divorce is the dissolution of a marriage, upon petition to the court by either party, without the requirement that the petitioner show fault on the part of the other party. ...

  1. Even though policies related to community life reflect the views, opinions, and the prejudices of that community, local laws have a strong claim to specify the formal requirements for marriages celebrated within their jurisdiction (this is, after all, the reason that the lex loci celebrationis is usually accepted as the law to determine all formal requirements for the marriage). For example, the public interest requires that marriage ceremonies are performed openly and with due publicity, with all valid marriages properly recorded.
  2. The public policy underpinning the lex fori (the law of the forum court) will allow the court to ignore foreign limitations on the right to marry which are considered offensive, e.g., those based on differences of race or ethnic origin, or which allow persons of the same biological sex the capacity to marry. However, some states go further, e.g., in the United States, section 283 Second Restatement of Conflict of Laws provides:
A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognised as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.
i.e., it introduces a form of proper law test of policy which could potentially lead to the application of a third state's policies which is a confusing possibility.

This article does not cite any references or sources. ... Lex fori is a private international law doctrine meaning the law of the court in which proceedings are being conducted. ... 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. ...

Formal validity

As a general principle, the formal validity of a marriage is determined under the municipal lex loci celebrationis on the date of the ceremony (the principle of renvoi does not apply unless it will refer to a law that will validate the marriage), and the lex domicilii of either party will be irrelevant. This rule is simple and easy to apply. It should be obvious to parties wishing to marry that they should comply with the local formalities, and legal advice is usually conveniently available. The only drawback to this rule is that, if it were not subject to exceptions, the parties' desire could evade otherwise manadatory provisions in the laws governing their capacity (see "Antenuptual capacity" below). Finally, the effect of retrospective legislation which purports to validate a formally invalid marriage will usually be recognised as an application of favor matrimonii. For the same reason, retrospective attempts to invalidate a narriage will usually fail. 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. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... In law, the Doctrine of Evasion is a fundamental public policy. ...


Marriage by correspondence

In the U.S., a common law marriage may be celebrated by the exchange of consents without the necessity of the parties being physically present together. Because one cannot identify the place of celebration without involving the contractual rules of offer and acceptance, this form of marriage must usually be valid under the laws of both the states in which the parties were physically resident when they gave their consents, whether by letter, telephone, fax or e-mail. 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. ... Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. ... For other uses, see Telephone (disambiguation). ... A Samsung fax machine Fax (short for facsimile, from Latin fac simile, make similar, i. ... Wikipedia does not yet have an article with this exact name. ...


Proxy marriages

Here, if consent for one or both parties is given by an agent or proxy, the general view is that the marriage takes place in the state where the proxy gives consent and that law determines whether the form of marriage is valid (Germany and a few others opt for the state in which the proxy was contractually authorised to act, because that is the best evidence as to the validity of the principal party's consent). Agency is an area of law dealing with a contractual or quasi-contractual relationship between at least two parties in which one, the principal, authorizes the other, the agent, to represent her or his legal interests and to perform legal acts that bind the principal. ... A proxy marriage is a marriage in which either the bride or the groom is not physically present for the wedding. ...


Common law marriage by "habit and repute"

In the U.S. and under Scottish law, the parties should reside habitually in one state which accepts this form of common law marriage as valid to establish their intention to marry over time. Scots Law (or Scottish Law) is the Law of Scotland. ...


Essential validity

Many states apply the lex loci celebrationis to all aspects of the validity of marriage, both formal and essential. Indeed, the courts in the U.S., in most states of Latin America and other states including Denmark and South Africa, do not distinguish between validity as to form and as to capacity.


Antenuptual capacity to marry

On questions of status and capacity, courts tend to look to the antenuptual lex domicilii, lex patriae or the law of habitual residence as the laws most closely connected to the parties in terms of public policy. For example, the policy of parens patriae entitles the state to defend the interests of children until they are deemed old enough to be responsible for their own decisions. But there can be disagreement as to when childhood ends and adulthood begins. Some states allow persons to marry when they are fourteen. Others allow marriage at the age of sixteen, but only with parental consent. Others allow marriage at eighteen. Suppose that a man, aged over twenty and domiciled in a state that grants capacity to marry at sixteen, travels to a state which permits marriage at fourteen and there goes through a marriage ceremony with a woman aged fourteen and domiciled in that state. If the test of validity was solely by reference to the lex loci celebrationis, this would allow a man to marry a person with whom it would be illegal to have sex in his own state. Parens patriae is Latin for parent of the fatherland or parent of the homeland. ... For other uses, see Child (disambiguation). ...


To overcome this problem, common law countries tend to require validity by both sets of personal laws: the so-called "dual domicile test", so long as neither law offends against the public policy of the lex fori. However, there is some support for a reference to the law of the country in which the couple intend to establish their matrimonial home so long as their intention is expressed with sufficient certainty and acted upon. Hence, if the parties are about to go through a monogamous ceremony, neither must have a subsisting spouse (in some states, bigamy is a crime). If the ceremony is polygamous, all the proposed spouses must have the capacity to marry more than one spouse. 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). ... Faithfulness redirects here. ... 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). ... The term polygamy (many marriages in late Greek) is used in related ways in social anthropology, sociobiology, and sociology. ...


Capacity to marry after a divorce

Under the common law, the capacity to marry a second (or subsequent) time is probably governed by the law of each party's antenuptial domicile. But this ignores the problem of the recognition of a divorce decree. Suppose that the decree is only recognised under one or neither personal law, but is recognised by the lex loci celebrationis. For example, a man domiciled in England obtains a decree in Nevada and immediately marries a Nevadan woman. If English law did not recognise the decree, this would create a limping marriage, valid in Nevada but void on the ground of bigamy in England. The problem is therefore to decide which question takes precedence. Is this a status question or does the recognition of the validity of the second marriage necessarily extinguish the first marriage? There is no clear answer. For a discussion, see the incidental question. 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. ...


Impotence or willful refusal to consummate

This is an aspect of the general legal topic of capacity, and it affects essential validity because, in many states, the policy is that marriage is for the procreation of children. Thus, if one spouse has a permanent physical condition at the time of the ceremony which prevents sexual intercourse, this may void the marriage, make the marriage voidable, or require a divorce decree. The willful refusal by one party to consummate the marriage will not usually be a ground for annulment since this is a question of behaviour rather than capacity and so becomes a matter for divorce. Given the improvement in medical science, the number of conditions producing impotence which cannot be treated with some degree of success is declining. Hence, most modern legal cases must now rely on the ground of the affected party's willful refusal to seek remedial treatment and deal with the case to reflect the fact that the marriage has not been consummated. The fact that one of the parties may be infertile and so cannot produce children is not relevant under this heading although it may be relevant if specific representations have been made to induce the marriage and so affect the validity of consent. It has been suggested that Duration of sexual intercourse be merged into this article or section. ... As a verb, consummate means to bring something to its completion, such as a transaction, concept, plan or action. ...


The choice of law is the subject of debate. The claim of the lex loci celebrationis to be applied may be slight if neither party has a connection by way of nationality, domicile or habitual residence, and the parties do not make their home there. There is a better claim by the lex domicilii, lex patriae, or law of habitual residence to apply as an aspect of capacity. To allow the lex fori to apply is to open the door to forum shopping, which might produce "limping marriages" and breach a key policy. 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. ...


Mistake, duress, sham marriages, etc

A fundamental mistake as to the nature of the ceremony (which would be difficult to prove unless the capacity of one of the parties to understand was affected by a subsisting mental condition, or by the consumption of alcohol or drugs not intended merely to give Dutch courage) or duress would raise an issue of status. Similarly, if a “sham marriage” is alleged, this would deny the status of a spouse. If one of the parties intended to acquire married status, but alleges that there was no valid consent, whether because of a mistaken belief as to the legal effects of the marriage or because of the behaviour of the other spouse, the affected party's ante-nuptial domicile, nationality, or habitual residence should apply. Otherwise, the lex fori should apply. In contract law a mistake is incorrect understanding by one or more parties to a contract and may be used as grounds to invalidate the agreement. ... The phrase Dutch courage is a slang term for courage gained from intoxication by alcohol. ... Duress in the context of contract law is a common law defence, and if you are successful in proving that the contract is vitiated by duress, you can rescind the contract, since it is then voidable. ...


Pregnancy by a third party, or one party has a venereal disease

In some states, these are expressed as "defects" in the condition of one party and the failure to disclose either condition before going through the ceremony affects the consent given by the other. This may be an innocent mistake, i.e., the affected party was not aware of the defect at the time of the ceremony. Or it may be a positive misrepresentation. Regardless, most states test whether the "innocent" party would have gone through the ceremony had he or she been aware of the true circumstances.


Prohibited degrees of consanguinity

As a reflection of their public policies, most states prohibit marriages between individuals who have a whole or half blood relationship i.e., consanguinity. Similarly, marriages may also be prohibited between individuals who have acquired legal relationships, e.g., by affinity through marriage, adoption, guardianship, etc. Since these policies represent deeply held views within each society, the right of the lex domicilii, lex patriae or habitual residence to apply is usually recognised. Consanguinity, literally meaning common blood, describes how close a person is related to another in the sense of a family. ... For other uses, see Adoption (disambiguation). ... Child custody and guardianship are the legal terms used to describe the legal and practical relationship between a parent and child, including e. ...


  Results from FactBites:
 
Annulment - Wikipedia, the free encyclopedia (839 words)
The Court, upon proper pleadings, renders a judgment that the marriage is void.
These marriages were to Catherine of Aragon (on the grounds that she had already been married to his brother), Anne Boleyn and Catherine Howard (both of whom he later had executed) and Anne of Cleves (on the grounds of not consummating the marriage).
Nullity (conflict) for a discussion of the rules relating to the annulment of marriage (conflict) in the Conflict of Laws
Nullity (conflict) - Wikipedia, the free encyclopedia (1975 words)
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.
Wherever possible, there should be international uniformity in defining a person's marital status so that people will not be treated as married under the law of one state, but not married under the law of another.
A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognised as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.” i.e.
  More results at FactBites »

 
 

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