Marriage (conflict)
Encyclopedia
In conflict of laws
, the issue of marriage
has assumed increasing public policy
significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.
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 nation
s formally adopt a policy to achieve a full cultural
integration and a uniform identity for all their citizens no matter what their ethnic, religious
or 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.
As an institution, marriage represents a significant set of values which helps to define how each country or state wishes to constitute the family unit, marital property matters, dissallowance of polygamy, regulate some aspects of sexual behavior, 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 constitution
al 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 norms describing at which age 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.
So long as people remain in their own countries or states, they may hopefully 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, government
s have found it increasingly necessary to decide what forms of ceremony or "common law marriages" they will allow to create valid marriages or conjugal unions in their own territories, and whether all forms of marriage, lawfully recognized in another sovereign
state, will be recognized for the purposes of immigration
and access to social welfare and other benefits nominally available to spouses. 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. On the other hand, many would agree that the host country may be permitted to stipulate the basic tenets of their law upon whomever wishes to live in their country. 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 men, women and children who find themselves victimized by the failure of the law to offer them protection.
rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved:
and capacity
are defined by the personal laws of the parties, namely:
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 traveling 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.
, or proper jurisdiction to adjudicate legal disputes, 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 behavior of those who wish to cohabit within their territory although this may contravene privacy
rights.
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. Some think that these cultural responses to different customs are given impetus by an underlying lack of respect for people of different race, religion or ethnicity. Whereas traditionally the law is viewed as driven by the Doctrine of Comity
and the principles of reciprocity
, those who administer and apply the law are undoubtedly affected by local social or political pressures to disapprove some customs of "foreign" states.
One particularly perplexing issue can be summarized thus: Suppose that a male Saudi Arabian Muslim legally marries two wives in Saudi Arabia, divorces the senior wife, then immigrates to the United States, where his junior wife files for divorce. The husband could argue that because U.S. law does not recognize polygamous marriages, the junior wife has never been his legal wife under U.S. law, and therefore no divorce can be granted by the U.S. court.
In Islam
, 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 recognized as valid everywhere.
, for example, the Recognition of Customary Marriages Act 1999 retrospectively recognizes 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 recognized. The Act similarly recognizes 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).
Such measure represented a major shift, because custom marriages were often potentially or actually polygamous as against public policy, and were not recognized under the new law. The government reversed the position, as it realized that it was impossible to enforce the prohibition against polygamy and wives usually consented.
Where a state has produced a formal body of law 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 favor 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.
Canada allows married persons to retain multiple spouses in legally recognized family law, but only in one province. Saskatchewan utilizes S.51 of their Family Property Act to "sanction and assist in the creation" of polygamous unions. To date, that province has only allowed married women to become spouses in family property law of single men; however their Family Law Act and case laws are the only statutes and references in North America where a legal jurisdiction promotes polygamy. Common law marriages in Canada have been referred to for over forty years as a form of marriage or "conjugal union". Since 1999, Saskatchewan has allowed married persons to have more than one "simultaneous" conjugal union in family property law.
, 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 requiring 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 sixteen 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 Nigeria
n husband had celebrated an Islamic marriage in Northern Nigeria with a 13 year old girl. Shortly afterwards the couple came to England and where they cohabited. A case was brought under §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 §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 guardian
s 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. 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 recognized as valid. This and other cases of "child brides", one involving a 12 year old Iran
ian bride and the other involving a 13 year old Oman
i 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 recognized 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.
. In Canada, "common law marriages" do not require consent to be recognized and often a stipulated "passage of time in eligible cohabitation" is the only requisite to becoming a formally recognized "marriage". The "capacity to marry" includes the fundamental a priori reasoning that both persons must not be married to others (the exception is Saskatchewan Canada). The only stipulation to this rule of thumb is that both partners must be eligible to marry in the first place. 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 stigmatizing 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:
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 ostracized 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 unreasonable 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.
Several exceptions have existed for various Biblical figures, incestuous relationships such as Abraham and Sarah , Nachor and Melcha , Lot and his Daughters , Amram and Jochabed , and more
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 offense.
(one man having more than one wife at the same time) or polyandry
(one woman having more than one husband at the same time) and it has been practiced sparsely throughout history in almost all cultures and 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 labor to maintain the earning capacity of the family, polygamy provides more children. Yet, in more modern times, some states have defined marriage as the union of one man to one woman "to the exclusion of all others" and, in some cases, have criminalized bigamy
or, as in Canada
, have made polygamy an offense 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 offense, and under s293(b), there is a separate offense for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage".
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:
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, or monogamy is the local custom. Thus, Ashkenazic Jews who live in Christian nations accepted a takkanah (a rabbi
nic 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.
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. In Canada, Ontario province recognizes polygamous marriages if they occurred in a foreign country whom Canada recognizes as permitting polygamy.
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 some other states.
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
, the issue of marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
has assumed increasing public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.
Public policy
The central politicalPolitics
Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
issue for each state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
is the choice between potential conflict and accommodation, between assimilation and the preservation of minority rights
Minority rights
The term Minority Rights embodies two separate concepts: first, normal individual rights as applied to members of racial, ethnic, class, religious, linguistic or sexual minorities, and second, collective rights accorded to minority groups...
in a diversified society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
. Many nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s formally adopt a policy to achieve a full cultural
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
integration and a uniform identity for all their citizens no matter what their ethnic, religious
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
or 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.
As an institution, marriage represents a significant set of values which helps to define how each country or state wishes to constitute the family unit, marital property matters, dissallowance of polygamy, regulate some aspects of sexual behavior, 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 constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al separation in some countries between church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
, view it as no more than a form of domestic partnership
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
. It will also reflect deeply held beliefs and norms describing at which age people may marry, the number of people who may enter the relationship, and whether same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
is acceptable. Questions on the legitimacy
Legitimacy (law)
At common law, legitimacy is the status of a child who is born to parents who are legally married to one another; and of a child who is born shortly after the parents' divorce. In canon and in civil law, the offspring of putative marriages have been considered legitimate children...
of any children may also be difficult to resolve.
So long as people remain in their own countries or states, they may hopefully 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, government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
s have found it increasingly necessary to decide what forms of ceremony or "common law marriages" they will allow to create valid marriages or conjugal unions in their own territories, and whether all forms of marriage, lawfully recognized in another sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
state, will be recognized for the purposes of immigration
Immigration
Immigration is the act of foreigners passing or coming into a country for the purpose of permanent residence...
and access to social welfare and other benefits nominally available to spouses. 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. On the other hand, many would agree that the host country may be permitted to stipulate the basic tenets of their law upon whomever wishes to live in their country. If the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
as officially published and the reality on the ground differ dramatically, this poses serious questions about the role of the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
in protecting the human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
and civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
of the men, women and children who find themselves victimized by the failure of the law to offer them protection.
The choice of law
The standard choice of lawChoice of law
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 sovereign states, federated states , or provinces...
rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved:
Status and capacity
StatusStatus (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
and capacity
Capacity (law)
The capacity of both natural and legal 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...
are defined by the personal laws of the parties, namely:
- the lex domiciliiLex domiciliiThe lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied....
or law of the domicileDomicile (law)In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
in common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
states, and - either the lex patriaeLex patriaeThe 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 law is...
or law of nationalityNationalityNationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
, or law of habitual residenceHabitual residenceIn conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
in civil lawCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
states).
The personal laws will usually define status in rem
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action 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
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
, a state will define the age at which a person may marry. If such a limitation could simply be evaded
Evasion (law)
In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and...
by the young person traveling 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
Consanguinity
Consanguinity refers to the property of being from the same kinship as another person. In that respect, consanguinity is the quality of being descended from the same ancestor as another person...
. In Family Law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
as opposed to the Law of Contract
Contract (conflict)
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.-History:...
, 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
Lex loci celebrationis
The lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
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.
Validity of the marriage
- The form of the marriage is governed by the lex loci celebrationis or the law of the place where the marriage was celebrated or occurred, and is usually considered definitive on whether the ceremony or legal recognition has been effective to create the relationship of marriage and marital rights(see nullityNullity (conflict)In conflict of laws, the issue of nullity 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 validity of the marriage is governed by the capacity of the parties to marry each other. In North America, Saskatchewan Canada is unique in that its marriage laws stipulate that both persons must be single to become eligible to be the spouse of another person. However, that provinces Family Property Act (which includes the definition of spouse in its statutes) allows for polygamous unions, sanctioned by the state. Capacity to become a spouse, is usually governed by the domicile of the parties. Thus for example, a 13 year old does not have the capacity to marry in England, but does have that capacity in Nigeria (Northern Muslim Community). Likewise, in Canada no person can be "sanctioned" to have multiple spouses, other than in Saskatchewan.
Lex fori
The lex foriLex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
, or proper jurisdiction to adjudicate legal disputes, 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 behavior of those who wish to cohabit within their territory although this may contravene privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
rights.
Discussion
There are serious problems of characterisationCharacterisation (conflict)
In conflict of laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law...
and the possibility of an incidental question
Incidental question
In the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. The forum court will have already decided that it has jurisdiction to hear the case and will be working through the next two stages of the conflict process,...
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. Some think that these cultural responses to different customs are given impetus by an underlying lack of respect for people of different race, religion or ethnicity. Whereas traditionally the law is viewed as driven by the Doctrine of Comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
and the principles of reciprocity
Reciprocity (international relations)
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....
, those who administer and apply the law are undoubtedly affected by local social or political pressures to disapprove some customs of "foreign" states.
One particularly perplexing issue can be summarized thus: Suppose that a male Saudi Arabian Muslim legally marries two wives in Saudi Arabia, divorces the senior wife, then immigrates to the United States, where his junior wife files for divorce. The husband could argue that because U.S. law does not recognize polygamous marriages, the junior wife has never been his legal wife under U.S. law, and therefore no divorce can be granted by the U.S. court.
Religion
Where 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. For example, the government may decide whether a clergy has sufficient authority to declare marriage or whether a civil ceremony will be required.In Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
, marriage is a contract between the bride and groom (or their proxies) known as a nikah
Nikah
Marriage in Islam is an Islamic prenuptial contract between a man and woman to live as husband and wife. It is a formal, binding contract considered integral to a religiously valid Islamic marriage, and outlines the rights and responsibilities of the groom and bride involved in marriage proceedings...
. 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
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
Court, the affected individuals' only recourse would be to the local civil courts, but jurisdiction
Jurisdiction
Jurisdiction 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 of responsibility...
would be difficult to invoke except under the parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
provisions to protect the best interests
Best interests
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. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
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 recognized as valid everywhere.
Custom
In many states, culturally separate communities have retained their own traditions. A developing modern state had to determine whether it should recognize such traditions as it was establishing a centralized system of law. In South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
, for example, the Recognition of Customary Marriages Act 1999 retrospectively recognizes 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 recognized. The Act similarly recognizes 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).
Such measure represented a major shift, because custom marriages were often potentially or actually polygamous as against public policy, and were not recognized under the new law. The government reversed the position, as it realized that it was impossible to enforce the prohibition against polygamy and wives usually consented.
Where a state has produced a formal body of law 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
Rebuttable presumption
Both in common law and in civil law, a rebuttable presumption is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty...
in favor 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.
Common law
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 conformity 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.Canada allows married persons to retain multiple spouses in legally recognized family law, but only in one province. Saskatchewan utilizes S.51 of their Family Property Act to "sanction and assist in the creation" of polygamous unions. To date, that province has only allowed married women to become spouses in family property law of single men; however their Family Law Act and case laws are the only statutes and references in North America where a legal jurisdiction promotes polygamy. Common law marriages in Canada have been referred to for over forty years as a form of marriage or "conjugal union". Since 1999, Saskatchewan has allowed married persons to have more than one "simultaneous" conjugal union in family property law.
Government registration
In some countries, the registration of a marriage means that it cannot later be declared invalid, since it has been accepted by the government. In Taiwan, which follows a variation of the Napoleonic Code (received by way of Japan), the presumption is that each country maintains a central registry of its citizens, including their marital status. If a Taiwan citizen marries in another country, however, this information may not find its way into the records. Many thousands of ROC soldiers who came to Taiwan in 1949 left behind wives in mainland China, but married local Taiwanese women. Since the two polities did not share records, the result was a pattern of legally-recognized second marriages, despite the ban on polygamy by both sides of the Taiwan Strait. Today, foreigners wishing to marry Taiwan citizens must present letters from their countries' representative offices testifying that they are not already married. (Of course a determined bigamist might marry in some third country.) In the case of countries which lack centralized family records (such as the USA), a notorized affidavit is accepted.The age of marriage
Culture changes slowly. Prior to 1951, in Northern IrelandNorthern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, 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 requiring 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 sixteen 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
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
courts considered Alhaji Mohammed v Knott [1969] 1 QB 1. Here, a Nigeria
Nigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
n husband had celebrated an Islamic marriage in Northern Nigeria with a 13 year old girl. Shortly afterwards the couple came to England and where they cohabited. A case was brought under §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 §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 guardian
Legal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
s of the bride and bridegroom. The bridegroom paid a dowry
Dowry
A dowry is the money, goods, or estate that a woman brings forth to the marriage. It contrasts with bride price, which is paid to the bride's parents, and dower, which is property settled on the bride herself by the groom at the time of marriage. The same culture may simultaneously practice both...
. 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. 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 recognized as valid. This and other cases of "child brides", one involving a 12 year old Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
ian bride and the other involving a 13 year old Oman
Oman
Oman , officially called the Sultanate of Oman , is an Arab state in southwest Asia on the southeast coast of the Arabian Peninsula. It is bordered by the United Arab Emirates to the northwest, Saudi Arabia to the west, and Yemen to the southwest. The coast is formed by the Arabian Sea on the...
i bride, caused some controversy in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the Immigration Rules 1986 were introduced to bar persons under the age of 16 from entering the UK in reliance upon their status
Status (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
as a spouse. Nevertheless, for other purposes, such marriages will be recognized 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.
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 nullityNullity (conflict)
In conflict of laws, the issue of nullity 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 Canada, "common law marriages" do not require consent to be recognized and often a stipulated "passage of time in eligible cohabitation" is the only requisite to becoming a formally recognized "marriage". The "capacity to marry" includes the fundamental a priori reasoning that both persons must not be married to others (the exception is Saskatchewan Canada). The only stipulation to this rule of thumb is that both partners must be eligible to marry in the first place. 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 stigmatizing 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:
- 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 ostracized 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 unreasonable 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 (and based on Old Testament laws):- where the parties are related by blood (consanguinityConsanguinityConsanguinity refers to the property of being from the same kinship as another person. In that respect, consanguinity is the quality of being descended from the same ancestor as another person...
); or - where parties are related by marriage (affinityAffinity (law)In law and in cultural anthropology, affinity, as distinguished from consanguinity, is kinship by marriage. It is the relation which each party to a marriage bears to the kindred of the other. In English, affinity is usually signified by adding "-in-law" to the degree of kinship...
).
Several exceptions have existed for various Biblical figures, incestuous relationships such as Abraham and Sarah , Nachor and Melcha , Lot and his Daughters , Amram and Jochabed , and more
The limitations based on consanguinity derive from a policy of practical eugenics
Eugenics
Eugenics is the "applied science or the bio-social movement which advocates the use of practices aimed at improving the genetic composition of a population", usually referring to human populations. The origins of the concept of eugenics began with certain interpretations of Mendelian inheritance,...
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
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
or an equivalent offense.
Polygamy
Polygamy may be polygynyPolygyny
Polygyny is a form of marriage in which a man has two or more wives at the same time. In countries where the practice is illegal, the man is referred to as a bigamist or a polygamist...
(one man having more than one wife at the same time) or polyandry
Polyandry
Polyandry refers to a form of marriage in which a woman has two or more husbands at the same time. The form of polyandry in which a woman is married to two or more brothers is known as "fraternal polyandry", and it is believed by many anthropologists to be the most frequently encountered...
(one woman having more than one husband at the same time) and it has been practiced sparsely throughout history in almost all cultures and 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 labor to maintain the earning capacity of the family, polygamy provides more children. Yet, in more modern times, some states have defined marriage as the union of one man to one woman "to the exclusion of all others" and, in some cases, have criminalized bigamy
Bigamy
In cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
or, as in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, have made polygamy an offense under the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. 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 offense, and under s293(b), there is a separate offense for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage".
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
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
does not prohibit polygamy for those religions that allow it (i.e. Islam, Hinduism
Hinduism
Hinduism is the predominant and indigenous religious tradition of the Indian Subcontinent. Hinduism is known to its followers as , amongst many other expressions...
, Buddhism
Buddhism
Buddhism is a religion and philosophy encompassing a variety of traditions, beliefs and practices, largely based on teachings attributed to Siddhartha Gautama, commonly known as the Buddha . The Buddha lived and taught in the northeastern Indian subcontinent some time between the 6th and 4th...
), but permits it with the consent of the existing wife or wives if:
- 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 converse is to be found in the halakhah and the Talmud
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
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, or monogamy is the local custom. Thus, Ashkenazic Jews who live in Christian nations accepted a takkanah (a rabbi
Rabbi
In Judaism, a rabbi is a teacher of Torah. This title derives from the Hebrew word רבי , meaning "My Master" , which is the way a student would address a master of Torah...
nic 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.
Actually polygamous
At the time a secular court considers the validity of this marriage, there are already multiple spouses. In English law, for example, §2 Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abodeRight of abode
The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction....
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. In Canada, Ontario province recognizes polygamous marriages if they occurred in a foreign country whom Canada recognizes as permitting polygamy.
Same-sex marriage
In a Chinese conception of marriage, a marriage is defined as being a relationship in which unions of various surnames are established in order to increase the lines of succession and property values. While most countries in 2010 do not recognize marriage between two people of the same sex, several states have fully legalized same-sex marriages, and even more have expressed a willingness to consider allowing individuals of the same gender to enter into civil unions and domestic partnerships. In addition to several European countries such as Spain and the Scandinavian states, as well as Canada and several states of the United States of America, Mexico City and Argentina are recent areas allowing same-sex marriage.On the issue of transsexualism
Legal aspects of transsexualism
Transsexual people are those who establish a permanent identity with the gender opposite to the gender identified at birth. As most legal jurisdictions have at least some recognition of the two traditional genders at the exclusion of other categories, this raises many legal issues and aspects of...
, the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
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
Gender Recognition Act 2004
The Gender Recognition Act 2004 is an Act of the Parliament of the United Kingdom that allows transsexual people to change their legal gender. It came into effect on 4 April 2005.-Operation of the law:...
and matches the majority of European states in permitting marriage in the adoptive gender role. The same rights may be allowed in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, and some other states.