When the English court has to decide whether a marriage is valid, foreign elements may be involved: one or both of the spouses may be of overseas origin, or the marriage may have been celebrated in a foreign country. This chapter considers which law applies to determine the validity of such marriages. For choice of law purposes, rules about the validity of marriage are divided into two classes: those concerned with formal validity and those concerned with essential validity or capacity to marry. Rules of formal validity lay down the way in which a marriage must be celebrated (for example, to ensure publicity and proof of marriage). Rules of essential validity or capacity are concerned with the permissibility of the marriage relationship itself — whether the parties ought to be allowed to marry each other (or at all). The chapter also discusses the application of the doctrine of renvoi and rules for same-sex marriages, civil partnerships, and polygamous marriages.
Chapter
7. Marriage
Jonathan Hill
Chapter
8. Matrimonial causes
Jonathan Hill
This chapter examines the jurisdiction of the English court and the choice of law process in proceedings for divorce, judicial separation, and annulment of marriage, and the extent to which the decrees of foreign courts in such matrimonial cases are recognised in England. It discusses similar rules which have been introduced in relation to same-sex marriage and civil partnership. Finally, the chapter considers the powers of the English court to grant financial relief and to recognise foreign maintenance orders. The Domicile and Matrimonial Proceedings Act 1973 introduced new uniform grounds of jurisdiction for matrimonial proceedings. These grounds were based on the policy that at least one of the parties, whether husband or wife, applicant or respondent, should have a sufficient connection with England to make it reasonable for the English court to deal with the case and likely that the divorce would be recognised in other countries. The Brussels II bis Regulation imposes uniform jurisdictional rules throughout the European Union (except Denmark, which did not participate in the adoption of the Regulation) and provides for almost automatic recognition of divorces, annulments, and separations granted by the courts of the Member States.
