Question: Discuss family/matrimonial issues under the conflicts of law
Table of Contents
1. FORMALITIES OF A AMARRIAGE
Formalities of a marriage
includes such questions as to whether a civil or any ceremony at all, is
required the number of witnesses require, the permitted hours during which the
marriage can be celebrated, whether publication or banns are necessary.
The
general rule is that the formalities of a marriage are of the place where it
was celebrated. Compliance with the
local law is sufficient. In Berthiame v Dastous[1] two Roman Catholics domicile
in Quebec were married in France in a roman catholic church. Owing to the carelessness
of the priest who married them there was no social ceremony required under the
French law. The Privy Council held that the marriage was void. Lord Dunedin
stated: “......if there is one question better settled than any other in international
law it regards a marriage- Putting aside the question of capacity. If the
marriage is good by the law of the country where it is effected, it is good the
entire world over, no matter whether the proceedings do not constitute a
marriage in the country of domicile. If the so called marriage is not marriage
is not marriage in the place where it is celebrated, there is no marriage
anywhere… although the ceremony if conducted in the place of parties domicile
would have been considered a marriage.”
For
a foreign marriage to be valid in Kenya it must comply with the formal
requirement under the law of the country where it was celebrated. This will be
so even if it does not comply with the formalities of the parties domicile.
The
rule of compliance with local law is sufficient even if the invalid marriage is
validated by a retrospective law. in Starkowski
v AG[2] a
marriage which was held without a civil marriage required in Australia was
validated by retrospective provision of a law which validated all the marriages
that were registered.
1.1.Marriage by proxy
A proxy marriage is a marriage in
which one or both of the individuals being united are not physically present,
usually being represented instead by other persons. If both partners are absent
a double proxy wedding occurs. Marriage
by proxy is marriage so long as they are recognised in the country of
celebration. In Apt v Apt[3]
the court of appeal upheld a proxy marriage held in Argentina between a man
domiciled and resident in Argentina and a woman domicile and resident in
England. Proxy marriages were valid in Argentina law.
In
McCabe v McCabe[4] a
man domiciled in the republic of Ireland and a woman domiciled in Ghana agrees
to marry in accordance to the tribal custom of Akan’s, people living in Ghana.
The man provided a bottle of kan and some money, which were taken to Ghana
where the celebration took place. Neither the man nor the woman were present
nor were either represented by proxy. The court of appeal held that they were
validly married finding the basis on expert evidence that the ceremony
constituted a marriage under the Akan customary law.
1.2.Parental consent
A
question arose whether parental consent was one of formality or capacity in Ogden v. Ogden. The court classified
parental consent as an issue of formality and since the marriage had been
celebrated in England, English law was applied as opposed to French law which
was the law of the parties’ country of domicile. Had it been an issue of
capacity, under French law the parties would have required parental consent
which had not been given that marriage would have been declared null and void.
1.3. Exception to the general rule on formalities of a marriage
a. Use
of local form of impossibility
If
the local circumstance is such that it is impossible to comply with the
formality of the country then the marriage will be valid in England as long as
it is cerebrated according to the English common law. the form of impossibility may be it is a
desert and there are no laws or there is a religion which is not compatible
with the parties believes. In Culling v
Culling [5]
a marriage was conducted in a British
war ship lying of Cyprus conducted by the ships chaplain in the presence of the
captain. Though, without banns or licence it was upheld to be a valid marriage.
b. Marriage
in countries under belligerent occupation
Many marriages that
were concluded during the concluding weeks of the world war two and aftermath
has been held valid though they did not comply with local formalities.
Taczanowski
v Taczanowski[6] a marriage between polish serving British army officer serving in
Italy and a wife who was a Polish. It was celebrated in Italy Roman church by
the priest serving with the British army. It was held valid on the basis that
the husband was not in Italy by choice but under military superior, he was
exempted from operation of local law unless he submitted to it on his own
volition.
c. Marriage
by an army officer serving abroad.
A
marriage is valid in Kenya even though it does not comply with the formality of
the place where it was celebrated if one of the parties to the marriage is a
member of the armed forces in his official duties in the country so long as it complies
with the common law requirement.
In the UK S.22 of the English Foreign
Marriages Act 1892. A member of her majesty forces serving in a foreign country
may have a valid marriage solemnised in such a territory by the chaplain
serving in the naval, military air force.
d.
Marriage under section 5(2) and
38(a) of the Marriage Act.
A
marriage contracted under Kenyan law before a Kenyan consular or other public
officer in a foreign country which has one party being a Kenyan. Such marriages
must be solemnised at the official residence of the marriage officer between
the hours of 8 am and 6pm and in the presence of two or more witnesses. Once it
has been contracted that marriage will be formally valid in Kenya even though
it may not be formally valid in the country where it was celebrated.
The officer may refuse
to solemnise the marriage if it is contrary to international law or the rule of
comity.
2. ESSENTIAL VALIDITY IN MARRIAGE UNDER CONFLICT OF LAW
Capacity to marry is essential as it raises
objectable causes of marriage relations in the eyes of the law. Lexi celebationis is not considered in
determination of essential validity because parties may get married in a
country with no real and close connection. The parties do not intended to have
their matrimonial home there and aren’t domiciled there.
Capacity to contract is often
governed by two rules;
ü
The
dual domicile rule
ü
The
law of the intended matrimonial property.
The Dual Domicile Rule: This is the law of
each party’s domicile at the time of marriage. For the marriage to be valid,
each party has to have capacity as per the law of his/her domicile.
The Law
Of The Intended Matrimonial Home: This is the law of the intended
matrimonial home, after the marriage. Marriage is valid by one law. The law
considered is that of the place the married parties intend to settle after
getting married.
Under the dual domicile law, the
law intends to protect the interest of individuals while under the law of the
intended matrimonial home; the law intends to protect the public interest of
the particular country as opposed to an individual’s interests.
2.1.DEGREES OF CONSANGUINITY AND AFFINITY
The degrees of such prohibition
will vary from country to country. In some countries, marriage among blood
related individual and those related by affinity (marriage) is prohibited while
in other countries this is not. This helps in reduction of defective offspring,
guard social and moral and also religious aspects.
Before 1835, under English domestic laws,
marriages between persons with the same degree were only voidable. In 1835, the marriages were regarded as void.
If the marriage was void, children were regarded as illegitimate. Other
countries were less stringent on this rule hence couples got married on a short
visit to another country where the marriage was valid.
This practice was put to an end
by a ruling in Brooke V Brooke[7]. A husband wished to marry a sister of
his deceased wife. The intended spouses were both domiciled in England. During
this period, close degrees were prohibited. Parties celebrated the marriage in
Denmark where it was valid. It was
held that the marriage was void.
Determining essential validity as
opposed to formal is not to be determined by the lexi celerationi. The essential validity depended on lexi domicilii the law of the country
which the parties are domiciled or contemplate to be their matrimonial home.
Later cases tend to inclined to the dual domicile test. In Re Paine[8], marriage was celebrated in Germany
between a man domiciled in Germany and a woman domiciled in England. By German
law, the marriage was valid however by English law the marriage was invalid. It
was held that either spouse must have the capacity to marry under his
anti-nuptial law. The marriage was void.
There is
an exception to the dual domicile rule. If a marriage is celebrated in
England and one party is domiciled in England, at the time of marriage, the
marriage is governed by the English law alone. Any invalidity by any law is
ignored.
Sottomayor V De Barros[9]:
The
marriage was celebrated in England among first cousins. The husband was
domiciled in England at the time of marriage while the wife was domiciled in
Portugal. Even though it was invalid in Portugal, it was held to be valid in
England.
The justification for this rule is that, it’s
unjust for an English party who celebrates his marriage in England as per the
law to hold the marriage void under foreign law.
This is somewhat unfair as it seems to
insinuate that incapacity imposed by English law is more important than others.
2.2.LACK OF AGE
Different countries have
different ages set for one to get married. In Kenya it’s provided for under the
Marriage Act as 16 years. A marriage solemnized for a person under the age of
16 years is void. Under the English law, a person under the age of 16 years is
incapacitated and a marriage conducted him or her being a party to it is void.
The dual domicile rule applies.
Law fitted to apply for the young person to be protected from his immaturity is
the law of the country he or she belongs to. Each party must have capacity
according to their law. In Altaji Mohammed Ali V Knott[10], a 27 year old man married a girl of 13
years both domiciled and married in Nigeria, went to live in England. Later
they filled for a nullity order. The court accepted that the marriage was
valid. The wife was old enough as per her laws even though he was too young
according to English laws.
However in Pugh V Pugh[11], marriage was celebrated in Austria
between a British officer domiciled in England and a 15 year old girl domiciled
in Hungary. Four years later the parties went to live in England as they had
intended it to be their matrimonial home. Later they parted. The marriage was
valid per Australian and Hungarian law. However the marriage was held to be
void.
2.3.LACK OF PARENTAL CONSENT
Persons below a certain age must
have parental consent.
Under English law, parental
consent is treated more like a formal validity and therefore incapable of
invalidating a marriage celebrated in England. A foreign law normally should
not be treated as a formal validity especially if by the absence the validity
is indeed affected. However, in England, such foreign law is considered as a
formality and can only invalidate the marriage if the marriage is celebrated in
the foreign country.
2.4.PREVIOUS MARRIAGES
A previously a married man or
woman lacks capacity to contract unless his first marriage has been dissolved.
A conflict arises in two instances;
1)
Where
one of the parties has already undergone a divorce recognized by one law and
not the other. In Lawrence v Lawrence[12],
a wife domiciled in Brazil obtained a decree in Nevada. The next day he got
married to a man in Nevada who was domiciled in England. England was the
intended matrimonial home. The parties did set up their marriage there after
their marriage. The wife’s first divorce was recognized by the English law but
not by the Brazilian law. The wife petitioned for a nullity under bigamy. Both
English and Brazilian law agreed that the woman had to be single for the second
marriage to subsist. Held, the validity
of the remarriage was governed by the English law because it was the intended
matrimonial home. Since the remarriage was recognized, by English law the
remarriage was valid
2)
One law permits polygamy and the other does
not.
In such instances, the law of the intended matrimonial home does apply in Radwan
V Radwan[13], a marriage was celebrated in France in
Moslem form which allowed polygamous marriages. The man was domiciled in Egypt
and had a first wife there. The second wife was domiciled in England but they
intended to put up their matrimonial home in Egypt. Sometime later they moved
to England. When the woman petitioned for a divorce, the question on validity
of their marriage arose. It was held. The marriage was valid because of her
intended matrimonial home. Her English domicile ceased after her marriage and
acquired the domicile of the husband.
2.5.CONSENT OF THE PARTIES.
Parties getting into a marriage
must consent freely. This apparent consent should not be vitiated by some
defect like fraud, duress, undue influence, or mistake. The dual domicile rule
applies as this is a matter which aggrieves an individual party hence seeks to
protect the interest of the party. Szecheter
V Szechter[14];
parties were domiciled in Poland and the marriage was celebrated there. The
parties only got married because they wanted woman to be released from prison
where her life was in danger. On release, the parties went to England and later
wanted the marriage to be nullified citing duress. Held, the law to govern such
an instance was the anti nuptial law which was the Polish law. Upon a testimony
by an expert witness on the Polish law, a decree of nullity was issued. The
marriage lacked consent under Polish law.
2.6.NON- CONSUMMATION OF MARRIAGE.
Under both common law and
statutory law, a marriage is voidable;
·
On
the ground that it has not been consummated owing to incapacity of either of
the parties.
·
Lack
of consummation due to willful refusal.
Willful
refusal to consummate is likely than impotence to produce problems under
conflict of laws. De Reneville v De Reneville[15] , that these issues are to be decided
by ‘the law of the husband’s domicile at the time to the marriage or
(preferably) … the law of the matrimonial domicile in reference to which the
parties may have been supposed to enter
into the bonds of marriage’
In Ponticelli V Ponticelli[16];
the marriage was celebrate in Italy between a wife domiciled in Italy and a
husband domiciled in England where the parties set up their matrimonial home.
The husband petitioned for nullity on grounds of wife’s refusal to consummate
the marriage. Under the Italian law willful refusal wasn’t a ground.
Held,
English law governed because it was the intended matrimonial home. Nullity
decree
was issued.
Capacity to Contract a polygamous marriage.
In
Radwan
v Radwan (No 2) [1972] 3 All ER 1026 the court decided that the intended matrimonial home rule applies to
the capacity to contract a polygamous marriage. In this case, the marriage was
celebrated in France in Moslem (polygamous) form. The husband was a Moslem
domiciled in Egypt who already had a wife married to him in Egypt by Moslem
rites. The second wife was domiciled in England at the time of the ceremony,
but the parties set up their matrimonial home in Egypt after the marriage, as
they had intended at the time of the marriage. Some years later they moved to
England. The wife then petitioned in the English courts for a divorce. The
question then arose whether the marriage was valid. It was argued that it was void because under English law, as the
law of her ante nuptial domicile, the wife lacked capacity to marry a man who
was not single. By Egyptian law the polygamous marriage was valid, however the
judge held it valid on the application of
the intended matrimonial home rule.
This
has been subject to critic on the ground that it is well established that other
aspects to marry are subject to the dual domicile rule. However, Cumming Bruce J stated that
different public and social factors are relevant to each of these types of incapacity
and that it is therefore an over simplification of the common law to assume
that the same test for purpose s of choice of law applies to every aspect of
incapacity.
3. CHOICE OF LAW IN DIVORCE AND NULLITY OF MARRIAGES
3.1.DIVORCE
For
a long time Under the English law, the English courts were not examining the
grounds on which the decree was issued in order to see whether they were
sufficient within the domestic laws[17].
Similarly, whenever the English courts assumed jurisdiction, they never applied
any law apart from the Lex fori which
in this case was the English Law and the courts could not exercise jurisdiction
unless the parties were domiciled in England, This was in accordance with the
legislation[18]
which required that if in case the courts assumed jurisdiction to any case, the
issues would be determined by the law which would be applicable if the parties
were domiciled in England at the time of the proceedings.
However,
through judicial decisions, it is evident that in England, the only possible
alternative to the lex fori is the Lex domicilii
However,
other civil courts in the world eg in France have always applied the lex patriae, that is the law of the
nationality of the parties to the divorce proceedings. However this has proved
problematic especially where the parties are of different nationalities.
3.2.NULLITY
The
general rule for the choice of law when annulling a marriage is that the law of
the place of the celebration of the marriage shall suffice. That is, a marriage
could be annulled for failure to comply with the formalities prescribed by the
law of the place where the marriage was celebrated. For example, a marriage can
be annulled if the parties were within the prohibited degrees of the law of
their antenuptial domicile even though they might have the capacity to marry
within the lex fori.
Traditional
rules on the choice of law and recognition in nullity of a marriage.
There
are various rules that have been used traditionally in determining the law that
is applicable in nullifying a marriage. These have been set up in various cases
which are discussed below.
The
rule in Le Mesurier- According to this rule, a foreign divorce is only
recognized if the parties were domiciled in the foreign country at the time of
the commencement of the proceedings. This was a rule set out in the case Of Le Mesurier vs. Le Mesurier[19]
in which an English man who married a French
woman in England. They lived their entire married life together in Ceylon,
where he was a member of the Ceylon Civil Service. When he sued her for a
divorce a vinculo matrimonii in
Ceylon after nine years of marriage, she challenged the court's jurisdiction on
the theory that he was still an English domiciliary. Although the trial court
granted the husband a divorce, the Supreme Court of Ceylon reversed the order,
finding that the Courts of Ceylon had no jurisdiction to dissolve a marriage
between British or European spouses resident in the island.
Lord
Watson said: “…….. The only fair and satisfactory rule to adopt on this matter
of jurisdiction is to insist upon the parties in all cases referring their
matrimonial differences to the courts of
the countries in which they are domiciled at the commencement of the
proceedings….”
The
rule in Armitage case- In this rule, a foreign divorce was only recognized if
only it would be recognized by the courts of the countries in which the parties
were domiciled. This was set out in the case of Armitage Vs AG[20],
where the husband, an Italian domiciled in Italy married an English woman in
1952 at the church of St James In London. The parties did nit cohabit in
England but went to stay in Italy. Although the marriage was not consuated, the
couple got a child in 1958.The marriage broke down soon after this and the
parties lived apart. In 1959, the husband had his name removed from the
population register of Italian commune in which he resided and obtained an
inclusion of his name in The Castaneda commune of Switzerland where the wife
lived. He filed a suit there and the decree was recognized in England simply
because it would have been obtained in a similar manner were it in England.
The
comity rule- under this rule, the states consider that it would be contrary and
inconsistent with the rules of comity if the courts of a country claimed not to recognize a jurisdiction which
they relate with. This was set out in the case of Travers Vs Holley[21]
where the question for determination was whether the English Courts could
recognize a decree issued by the courts of the New South Wales Court. In this
case, Mr. and Mrs. Travers had left England shortly after their marriage and
come to Sydney where Mr. Travers deserted his wife, went to the country and
later returned to England. After three years' desertion, Mrs. Travers in New
South Wales petitioned for and obtained a divorce under s.l6(a) of the
Matrimonial Causes Act, 1899 and later, relying on that divorce, married a Mr.
Holley. Subsequently. Travers in England petitioned for divorce on the ground
of his wife's adultery with Mr. Holley, his contention being that he had never
acquired a domicile of choice in New South Wales, and even if he had, the New
South Wales court would have no jurisdiction in the eyes of an English court to
dissolve the marriage unless at the date of the institution of proceedings in
New South Wales both parties were domiciled there. It was held that both the New South Wales and English courts claimed the same
jurisdiction, and that, even if while in desertion the husband abandoned his
New South Wales domicile of choice and reverted to his domicile of origin, the
New South Wales court would not be deprived of jurisdiction.
The rule in Indyka case. In this
case a rule was laid down that a foreign divorce could be recognized if there was a real and substancial
connection between the petitioner and the respondent and the foreign country wher
the divorce was obtained. In this case[22],
Diplock LJ said “It follows……….the public policy
requires English Courts to recognise the effectiveness of decrees of
dissolution of marriages pronounced by Courts in exercising their jurisdiction
in circumstances which mutatis mutandis would entitle an English Court to
exercise its extended jurisdiction to dissolve a marriage.”
Therefore,
for a divorce to be recognized under this rule, it must have been effective,
thai is, to dissolve the marriage under the law of the foreign country where it
was obtained.
However,
the European Union came up with rules to codify the various methods and rules
governing recognition of divorce decrees issued in the member states. This was
formulated in the Brussels II Rules[23]
which aim at providing a mutuial recognition
and enforcement of divorce, legal separation and marriage annulment throughout the European Union.
Under Aricle 21 of the Convention provides that:
“The recognition and enforcement
of judgments given in a Member State should be based on the principle of mutual
trust and the grounds for non-recognition should be kept to the minimum
required.”
This
provides for a near automatic recognition of judgements issued in a member sate
by all the other member states. This is further enhanced in article 22 of the
same convention which provides that:
“Authentic
instruments and agreements between parties are enforceable in one Member State
should be treated as equivalent to ‘judgments' for the purpose of the
application of the rules on recognition an enforcement”
3.3.CHOICE OF LAW AND RECOGNITION IN KENYA
The
position in Kenya with regards to the choice of the law to be applied in case
of a divorce proceedings as well as recognition of foreign decree is a near
replica of the English position. Under the Matrimonial Causes Act[24],
Section 3 provides that the jurisdiction shall only be vested on the High court
which is to be exercised in accordance with the
law applied in matrimonial proceedings in the High Court of Justice in England.
Under section 4 various
conditions have been provided for:
The
court shall not issue a decree or have jurisdiction per se unless the
petitioner is domiciled in Kenya at the time of presenting the petition. This
means that the law the court shall be applying in Kenya in all the matrimonial
cases shall be the law of the domicile and in this case, the Kenyan law.
The
court shall not issue any relief unless one of the parties to the suit has, at the time when the petition is
presented, his or her usual residence in Kenya.
The court shall not issue any
relief unless the marriage was solemnized in Kenya. This is an alternative to
the second provision of section 4 and it implies that if the marriage was
solemnized in Kenya but the parties are ordinarily resident somewhere else, the
courts of Kenya is to apply the law of the place of celebration of the
marriage and in this case the law of
Kenya .
3.3.1. Recognition of foreign divorces.
The entire purpose of recognition
of foreign divorces is to prevent limping marriages. These are marriages in
which divorce has been granted but the decree is not recognised by the courts
of other countries.
The European rules for recognition.
Recognition of foreign judgments
is based on the Brussels Convention. The convention provides that judgments
pronounced by a member state are to be recognised by the courts of another
without the requirement of a special procedure. The judgment must either be one
of divorce, separation or annulment and inclusive of a decree, order or
decision[25].
The Convention also provides the
grounds by which a judgment on the above matters may fail to be recognised by
the member states. These include:
·
Where
recognition will be against public policy
·
Where
there was default in service of documents to the respondent and unless he/she
has accepted the judgment unequivocally( e.g. remarrying) and default in
appearance
·
Irreconcilable
judgments-Where there was already a judgment pronounced on the same parties by
another member state and where there is a judgment given by the member state in
which recognition is sought as between the same parties.
British rules for recognition.
The Family Law Act[26]
of England has provided divisions under which recognition is to apply. They
include:
·
Divorces
granted in British Islands
·
Divorce
obtained by proceedings outside the British Islands
·
Overseas
divorces not obtained by proceedings
Where a divorce is obtained in a
court of civil jurisdiction in any part of the British Islands, it will be
automatically recognised in the whole of UK. Recognition can only be effective
if divorce was granted in civil proceedings[27].
The courts may not recognize a decree if :
ü
it
is irreconcilable with a decision made by an English Court on the matter of
validity of the marriage
ü
if the earlier decision was by a foreign court
capable of recognition by the English Court.
ü
If
there was no subsisting marriage between the parties in the eyes of English Law
3.3.2. Recognition of overseas divorces prior to the Family Law Act (1986)
Judges in England developed a
number of rules for recognition of overseas divorces that broadened over time:
o
In
Le Mesurier v Le Mesurier, Lord
Watson stated, ‘‘According to international law, the domicile for the time
being of the married pair affords the only true test of jurisdiction to
dissolve the marriage and recognise it.’’
o
A
decade later it was established in Armitage
v AG that a divorce could be recognised in England if it would be
recognised in the lex domicilii of the parties( if a change of status had been
recognised in the parties’ domicile, then it should be recognised in England)
o
In
Travers v Holley the Court of Appeal
ruled that an English court will recognise a foreign decree of divorce if it is
granted in circumstances where, mutatis mutandis, an English court would itself
have exercised jurisdiction (it would be at variance with comity if an English
court were to refuse to recognise a jurisdiction that, mutatis mutandis, it
claimed for itself)
o
This
remained the position until the House of Lords, in Indyka v Indyka, in reviewing the general state of the law, held
that a foreign decree should be recognised in England if there was a ‘real and
substantial connection’ between either the petitioner or the respondent and the
foreign country in which the divorce was obtained.( The problem with this rule
is that it became unclear on how the real and substantial connection would be
proved)
Under the Family Law Act of 1986[28](which
had more liberal provisions) a divorce procured in a country outside the
British Islands is an overseas divorce and its recognition is based on meeting
the requirements in the legislation. The overseas divorces are further
subdivided to those that have been obtained through by judicial proceedings and
those that have not[29].
In situations where an overseas
divorce has been granted by proceedings the Act makes requirements that
I.
The
divorce is effective under the laws of the country in which it was procured. a
divorce will be effective if the
substantive rules of foreign law have been followed.
II.
Another
condition that must be satisfied is that at the date of commencement of the
divorce proceedings either of the parties was:-
v
A
habitual resident in that foreign country where the divorce was procured.
v
Domiciled
in that foreign country according to English Law or the laws of that country.
v
National
of that foreign country.
English Law requires that
recognition of a foreign divorce will be dependent on the presence of a
connecting factor, the concept of a country and of effectiveness. Nationality and habitual residency are to be determined
by English Law. The domicile connection is however to be established either by
English Law or the law of the domicile as used in family law matters in the
country concerned.
In respect of habitual residence, it will be a
question of examining the evidence and drawing the appropriate inferences. The
alternative of nationality was included to meet the concerns of The Hague
Conference and those European States that use nationality as a connecting
factor. In such cases evidence of citizenship would have to be before the
court; it would seem that, in cases where a person has dual nationality, this
will not be an obstacle.
Non-proceedings divorces are
mainly found in a number of religions in the world that make some provision for
divorce sometimes this being by means of a unilateral act by one or other party
to the marriage. They are recognisable in England even when they were done in
England as long as the parties were domiciled in the foreign country and the
laws of such foreign country permit divorce in such a way. In Quazi v Quazi both parties were nationals of Pakistan.
The husband pronounced a talaq in Pakistan in accordance with the laws of
Pakistan and then complied with the terms as to written notice under the Muslim
Family Ordinance 1961. This provided that the talaq would be suspended for a 90
day period but would then take effect unless revoked. At a later date, the wife
sought a divorce in England and the husband argued that the talaq divorce
should be recognised under s 2(a) of the Recognition of Divorces and Legal
Separations Act 1971. The House of Lords, in reversing the Court of Appeal,
held that the talaq divorce was entitled to recognition and that the expression
‘other proceedings’ did not require judicial proceedings involving findings of
fact but extended to any proceedings which could be considered officially
recognised.
3.3.3. Transnational divorces.
A transnational divorce is a
divorce where some of the relevant acts are performed in country A and some in
country B. A number of problems have arisen in respect of transnational
divorces where some of the acts have taken place in England and the remaining
acts have taken place abroad. The problems posed by transnational divorces were
considered by the House of Lords in R v
Secretary of Secretary of State for the Home Department ex p Ghulam Fatima,
a Pakistani national, resident in England, pronounced a talaq in England in
order to divorce his wife who lived in Pakistan. In 1978, he complied with the
1961 Muslim Family Ordinance by sending the relevant written notice to
Pakistan. In 1982, his fiancée, Ghulam Fatima, was refused entry to the UK on
the basis that the immigration rules had not been complied with because no
valid marriage could take place within a reasonable period of time. The immigration
officer was not convinced that the prior marriage had been validly terminated.
This conclusion was challenged by judicial review. Taylor J and the Court of
Appeal upheld the ruling of the immigration officer. The issue for the House of
Lords was whether the divorce was entitled to recognition under the Recognition
of Divorces and Legal Separations Act 1971 as being one ‘obtained by means of
judicial or other proceedings in any country outside the British Isles’. The
House of Lords, ruled that a divorce
merely concluded abroad would not be recognised. Lord Ackner, held that the
Recognition of Divorces and Legal Separations Act 1971[30]
required ‘a single set of proceedings which have to be instituted in the same
country as that in which the relevant divorce was ultimately obtained’.
3.3.4. Is a divorce granted by a foreign court valid in Kenya?
The principle is that the status
of a person can only be changed by the courts of his domicile. This therefore
means that once a divorce is granted by a foreign court, the party attains a
single status in that country but he remains married in the eyes of Kenyan
courts as the Kenyan court can only exercise jurisdiction over divorce if the
spouses were domiciled in Kenya. This kind of marriage which has been dissolved
according to certain laws but continues to subsist according to other laws is
referred to as a limping marriage.
The aim of the rules that govern
recognition of foreign divorces is to create a sort of balance between the very
restrictive laws that bring in the limping marriages and the non-restrictive
laws that permit all divorces.
How Kenyan courts recognise foreign divorce.
This is the reason that the
jurisdiction of Kenyan courts was expanded to recognise a foreign divorce where
the husband was domiciled in Kenya immediately before he disserted his wife and
also in instances where the wife was an ordinary resident of Kenya for 3 years
as established in Travers v Holley[31].
The position established in this case does not apply now and the courts in
Kenya are guided by the Convention
on the Recognition of Divorces and Legal Separations
Kenya is a Contracting State of the Convention and all foreign divorces of
other contracting states shall be governed this convention. The recognition of
this divorces and legal separations obtained in another Contracting will depend
on whether the proceedings are officially recognised in that State and are legally effective there.
However the Convention does not apply to:
·
Findings of fault
·
Ancillary orders pronounced on the making of a decree of
divorce
·
Orders relating to pecuniary obligations or to the custody of
children.
This convention sets grounds under which a divorce obtained in a foreign country that is a contracting state to the convention shall be recognised. The recognition of the foreign divorce is dependent on:
o The presence of a sufficient connection with the country where the divorce was granted.
o The fact that at the date of instituting the divorce or legal separation at the state of origin[32]:-
(1) the respondent had his habitual
residence there; or
(2) the petitioner had his habitual
residence there and one of the following further conditions was fulfilled -
a) such habitual residence had
continued for not less than one year immediately prior to the institution of
proceedings;
b) the spouses last habitually
resided there together; or
(3) both spouses were nationals of
that State; or
(4) the petitioner was a national of
that State and one of the following further conditions was fulfilled -
a) the petitioner had his habitual
residence there; or
b) he had habitually resided there
for a continuous period of one year falling, at least in part, within the two
years preceding the institution of the proceedings; or
(5) the petitioner for divorce was a
national of that State and both the following further conditions were fulfilled
-
a) the petitioner was present in
that State at the date of institution of the proceedings and
b) the spouses last habitually
resided together in a State whose law, at the date of institution of the
proceedings, did not provide for divorce.
4. THE EU COUNCIL REGULATION 1347/2000
This
regulation contains provisions on divorce and parental responsibility. It
regulates cross-border rights of access. Right of access is the right to take
the child for a limited period to a place other than that of the child’s
habitual residence. The Council Regulation (EC) No. 2201[33]
concerns jurisdiction, the recognition and enforcement of judgments in matrimonial
and parental responsibility matters, repealing regulation EC No. 1347/200. It
also establishes the automatic recognition of judgments on rights of access.
The regulation applies to civil proceedings relating to divorce, separation and
marriage annulment. It establishes a full system of rules on jurisdiction as
regards divorce and takes over the rules on jurisdiction contained in
regulation (EC) No. 1347/2000.
Generally,
matters relating to parental responsibility come under the jurisdiction of the
courts of habitual residence of the child. In instances of relocation (lawful
change of residence of a child) where the courts of the EU country of the
former residence of the child have already issued judgment on parental
responsibility, the matter continues to come under the jurisdiction of the
courts of that country. Spouses may also accept the jurisdiction of the divorce
court to decide on matters of parental responsibility. The parents may also
bring the case before the courts of another EU country with which the child has
a close connection. Such connection may be based for instance on nationality of
the child.
Where
a child’s habitual residence cannot be established, the EU country in which the
child is present, will assume jurisdiction by default. This applies for
instance in cases of refugee children, children internationally displaced due
to disturbances occurring in their countries of origin. Where it is not possible to define
jurisdiction on the basis of specific provisions in the regulation, each EU
country may apply its national legislation. In exceptional circumstances, the
case may be referred to the country best placed to hear it, where it is in the
best interests of the child.
In
deciding matters brought before it, the courts are required to verify on their
own motion if they have jurisdiction on the matter. If it finds that it has no
jurisdiction, it must declare on its own motion that it has no jurisdiction.
4.1.RECOGNITON AND ENFORCEMENT.
The
rules on recognition and enforcement are those laid down by the regulation (EC)
No. 1347/2000. Provide for automatic recognition of all judgments without any
intermediary procedure required. It provides that recognition of judgments
relating to matrimonial and parental responsibility matters may be refused in
the following instances.
-
Where
the recognition is manifestly contrary to public policy.
-
If
the respondent was not served with the document that instituted the proceedings
in sufficient time to prepare for his defense.
-
Where
the recognition is irreconcilable with another judgment.
In
matters of parental responsibility, recognition will be denied in the following
instances:
-
Where
the child was not given an opportunity to be heard.
-
Where
a person claims that the judgment infringes their parental responsibility. For
instance if it was issued without the person being given the permission to be
heard.
A
judgment on the exercise of parental responsibility can be declared to be
enforceable in another EU country on the application of an interested party.
The decision on the application for a declaration of enforceability may be
appealed against.
With
regards to judgment on matrimonial matters and parental responsibility, the
competent court must, at the request of any interested party issue a
certificate. A certificate issued to facilitate enforcement of a judgment is
not subject to appeal. Only proceedings initiated to correct the certificate
are allowed if the certificate does not reflect the judgment. The enforcement
of the judgment is governed by the national law of the EU country of
enforcement.
5. THE INTENDED MATRIMONIAL HOME RULE AND NEW APPROACHES.
Matrimonial home means the dwelling
and real property occupied by a person and his spouse as their family residence
and in which either or both of them have a property interest other than a
leasehold interest[34].
However it should be noted that home, where spouses ordinarily reside together
is only a matrimonial home, if they are marriage. In modern society, the role
of marriage and its termination through divorce have become rampant and as
people live increasingly mobile lives, the rules under conflict of laws become
highly relevant to determine:
1.
The
circumstance in which people may obtain divorces in states in which they have
no permanent or habitual residence.
2.
When
one state will recognize and enforce a divorce granted in another state.
Once a marriage has been declared voidable, the
issues for determination before the court in matters concerning nullification
of marriage are to be decided by:
Ø The law of the husband’s
domicile at the time of marriage
Ø The law of the matrimonial domicile in which
the parties may have been supposed to enter into the bonds of marriage.
Through the illustrations of cases we will show how
the courts apply the matrimonial home rule during divorce proceedings to decide
on the choice of law to apply.
In
the case of Ponticelli .V. Ponticell,i[35] a marriage was
celebrated in Italy between a wife domiciled there and a husband domiciled in
England, where the parties set up their matrimonial home. The husband later on
petitioned the English court for a nullity decree on the ground of the wife’s
willful refusal to consummate the marriage. According to the Italian law
willful refusal was not a ground of nullity.It was held that the England law
governed the proceedings, either as the lex
fori or lex domicilii which meant
the law of the country in which the parties are domiciled at the time of the
marriage and which the matrimonial residence is contemplated.
Similarly in the case of Radwan
.V. Radwan,[36] it was a union between a Muslim husband, an
Egyptian national domiciled there, and an English Christian woman. The wife
converted to Islam but then renounced the religion. The marriage took place in
the Egyptian embassy in Paris; ten days after the two had met. The husband was
already married in Egypt. They both lived in Egypt for a while until the Suez
crisis they moved to United Kingdom and eventually abandoned the idea of going
back. After a few years the marriage broke down and the husband pronounced a Talaq
divorce in the Egypt embassy in London but the wife contested recognition in favour
of English court jurisdiction seeking a divorce on the ground of cruelty.
However it was not recognized and it was held that if the couple retained the
foreign domicile , the divorce would have been valid.
In
this case the courts upheld the English rule against polygamy and safeguarded
their standards of the structure of marriage and family. Public policies are
relevant in the general conflict system so as to avoid 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
state.
In
the case of De Reneville. V. De Reneville.[37]An
English woman married a domiciled French man and lived with him in France for
some years, after which time she left him and returned to England, where she
presented a petition for nullity on the ground that the marriage had not been
consummated. It was held that there was no jurisdiction and the court of appeal
affirmed that decision stating that the applicable was French being that of the
matrimonial domicile.
5.1.NEW APPROACHES ON THE RULE.
The
intended matrimonial rule
This
was laid down in the case of Lawrence. V. Lawrence[38] where the wife, then domiciled in Brazil obtained a
divorced from her first husband in Nevada and the following day she married the
second husband who was domiciled in England where they set up their matrimonial
home. The wife’s Nevada divorce was recognized by English law but not by the Brazilian
law, under which she remained married to her first husband. She petitioned in
the English court for a nullity decree on the ground that the marriage was
bigamous.
Conflict
arose between the English law and the Brazilian taking different views as to
the validity of the Nevada divorce and whether the wife was single when she
remarried. She contented that her capacity to marry her second husband was
governed by Brazilian law as the law of her atantenuptial domicile since Nevada
divorce was invalid by Brazilian law she lacked capacity by that law, so the
marriage was void.
However
it was held that the validity of the remarriage was governed by the English law
because being the law of the intended matrimonial domicile, it was the law of
the country with which the marriage had its most real and substantial
connection since the divorce was recognized by English law, the remarriage was
void. The judges preferred the intended matrimonial home rule to the dual
domicile rule.
One
of the trial judges in the court of appeal took another new approach that
whichever test whether the dual domicile or the intended matrimonial home rules
would lead to the marriage the being valid should be applied. The approach is
justified on the ground that there is no reason to hold a marriage invalid on a
ground based on the public interest such as polygamy if it is valid by the law
of the country where the marriage relationship exist and even if it is invalid
in their country the couples expectation that it will be valid should be upheld.
The
matrimonial home rule is objected in that it leads to uncertainty as it does
not provide for situations where the parties in question never settle in any
country. The solution provided for is that if the matrimonial home is not set
up within reasonable time, then the husbands domicile should be presumed to be
the intended matrimonial home and if it is not established the dual domicile is
adopted.
5.2.Presumption Of Death
And Its Resolution
Presumptions are inferences that the court may draw,
or must draw. They are devices that entitle the court to pronounce on a
particular issue not withstanding the fact that there is no evidence or there
is insufficient evidence to enable the court to find a fact to exist or to find
a fact not to exist. The relief provided once a presumption of death during the
dissolution of marriage is established is not primarily the dissolution of the
marriage but the main object is to enable the petitioner to obtain a
declaration that the other spouse is presumed to be dead.
To
safeguard awkward situations which may arise if the presumption turned out
wrong, decree of presumption of death is joined to the decree of dissolution of
marriage.
In
the case of Wall .V. Wall[39]
it was held that there should be a clear distinction between ordinary divorce
decrees and decrees of presumption of death and dissolution of marriage.
In the Kenya Matrimonial Causes
Act, any married person who alleges that
reasonable grounds exist for supposing that the other party is dead may present
a petition to the court to have it presumed that the other party is dead and to
have the marriage dissolved, and the court if satisfied that such reasonable
grounds exist may make a decree of presumption of death and of dissolution of
marriage.[40]
Where
it is proved that a person has not been heard of for seven years by those who
might be expected to have heard of him if he were alive there shall be a
rebuttable presumption that he is dead.[41]
For the presumption to hold
1.
There
people who would likely to have heard from that person in that period.
2.
That
those persons have not heard from the person
3.
All
due enquiries have been made as appropriate the circumstances.
In
the case of Chad.V. Chad, [42]
the parties to a marriage sought a decree of nullity on the grounds that the
husband had been through another marriage ceremony. The first wife in respect
of which there was no evidence of her whereabouts and there were reasons in
which might have led her not to wish to be heard from by her husband and his
family as he was constantly in and out of prison.
The
question was whether one could presume that she was dead and therefore hold
this marriage valid? The court held that there was no evidence of a person who
would have been likely to have heard of the first wife between 1917 and1933 and
consequently the presumption of death was inapplicable in which case the
nullity would not go through but they would have to bring in more evidence.
6. MATRIMONIAL PROPERTY
The
law on matrimonial property is concerned with the rights of spouses over
property that they acquire before, during and on the breakdown of marriage. It
is mostly not concerned with property rights on death of a spouse as this is
primarily dealt with under the law of succession.
Matrimonial property includes:
(a)
The matrimonial home or homes;
(b)
Household goods and effects in the matrimonial home or homes;
(c)
Both immovable and moveable property, owned by both or either spouse and
acquired during the subsistence of a marriage; or
(d)
Any other property legally acquired during the subsistence of a marriage.
(e)
Furniture.
Exceptions to matrimonial
property
a.
Gifts
or inheritance one receives from another person. However, it may still be
matrimonial property if it was used for the benefit of the family.
b.
An
insurance payment or damages awarded to you by a court.
c.
Personal
possessions such as clothes
d.
Property
that either spouse acquired after they separated
e.
Any
property held by a spouse as trust property, including property held in trust
under customary law, whether acquired by way of inheritance or otherwise,
6.1.Conflict Of Laws And Matrimonial Property
Conflict
of laws rules arise where different jurisdictions are involved in the said
matrimonial property. These rules provide for the effect on movable property on
the change of domicile. There is established the general principle of conflicts
of law that the mutual rights of husband and wife with respect to personal
property are governed by the law of the matrimonial domicile at the time the
property is acquired.
These
rights are not affected by subsequent change of domicile removal of the
property to another state where a different law obtains, but acquisitions made
after the change are governed by the law of the new domicile.
When
operative facts of a case involve two or more jurisdictions, the laws of which
differ on the points of law, the forum must make a choice of law.
The
forum which undertakes this choice does so in pursuance of certain of certain policies.
There
is established a common law rule that the domicile of the husband at the time
of marriage is the first matrimonial
domicile. However, no conflict of laws problem is presented when both
husband and wife acquire property within their matrimonial domicile.
Movables
are likely to be taken to the domicile of the acquirers the rule has been
formulated that the law of the domicile at the time of the acquisition governs
the interest in movables.
Rule
embodies the policies of unity of laws and convenience at the forum, the court
need apply only one set of laws. That of the domicile to any number of movables
acquired in any number of jurisdictions so long as a single domicile has been
retained.
When
the domicile is changed, however, another single set of laws, that of the new
domicile is applied.
Thus
the conflict of laws rule for movable property has not only a particular
geographical factor, to the domicile, but also a time factor, the time of
acquisition. The law of the first
matrimonial domicile would govern all acquisitions.
The
matrimonial property of a couple who have changed domicile several times may be
apportioned in sections and groups. The respective divisions being designated
by two factors, domicile and time.
The
law of the place of the immovable property governs - law of the situs - governs the matrimonial interests in immovable.
With
the law of the situs governing
marital interests in immovable property the domicile of the owner would not be
a factor in the determination of the marital property rights.
The
law of the situs governs immovable property acquired by primary acquisition;
when immovables are acquired by exchange the marital interests in such
immovables are acquired by exchange, the marital interests in such immovables
are of the same category as those existing in the property given exchange.
6.2.The Marriage Bill 2012
This
legislation purposes to amend and to consolidate various laws relating to
marriage, divorce and for connected
purposes.
The
principal purpose of this Bill is to make provisions for the rights of spouses
with regard to matrimonial property in an equal and equitable manner. It is
also to recognize the contribution made to a marriage by each spouse and provide
applicable laws for the orderly and equitable settlement of the affairs of the
spouses upon termination of a marriage relationship in the context of
international law and the Constitution of Kenya.
7. STAYING OF MATRIMONIAL PROCEEDINGS
As
more than one country may have jurisdiction according to its own law to grant a
divorce in respect of the same marriage, it may happen that matrimonial
proceedings between the same the parties are pending in two courts at the same
time. For example, a wife who is domiciled in Kenya may bring divorce
proceedings in the Kenyan court, after the husband has started similar
proceedings in France, of which he is a citizen.
At
common law the courts have power to stay proceedings in actions in personam on the ground that e English
court is not the appropriate forum (forum
non conveniens).
The court in the
Spiliada case laid down the basic
principle that English proceedings may be stayed where there is another clearly
more appropriate forum for trial of the action in which justice can be
done. These guidelines are also
applicable and followed in stay of matrimonial proceedings. The onus is on the
defendant to prove that this is the case as the claimant should not be deprived
of the advantage of proceedings here merely on the balance of convenience. At
one time the English court would stay its own proceedings only where it was
vexatious and oppressive to the defendant not to do so known as the Pierre test as set in St. Pierre v South American Stone Ltd[43] .
The test of vexation and oppression was difficult to satisfy except where the
claimant had commenced proceedings against the defendant in more than one forum.
Lord Goff laid down the following guidelines:
(1) A stay will only be granted if the court
is satisfied that there is another available court having competent
jurisdiction which, because the case could be tried there suitably for the
interest of the parties and the ends of justice, is appropriate for the
trial.18
(2)
In general the burden of persuading the court to exercise its discretion to
grant a stay rests on the defendant, although in respect of any matter raised
by either party to persuade it one way or the other, the burden lies on the
party who raises it.
(3)
The defendant must show not only that England is not the natural or appropriate
forum but that there is one other forum which is clearly or distinctly more
appropriate.
(4)
The court must first look for factors which point to another forum, defined by
Lord Keith in The Abidin Daver as ‘that with which the action had
the most real and substantial connection’. These include factors affecting
convenience or expense (including availability of witnesses) and others, such
as which law governs the relevant transaction, or the respective places of
residence or business of the parties.
(5)
If the court concludes that no such forum exists, a stay will almost certainly
be refused.
(6)
If it concludes that there is a prima facie more appropriate forum a stay
will normally be granted. But if the claimant (on whom the evidential burden
now lies) can show that circumstances beyond those under (4) exist why a stay
should not be granted, such as that he will clearly not be able to obtain
justice in the foreign court, a stay will be refused.
De
Dampierre v De Dampierre[44],
The
parties were both French. In 1979 they moved to England, where the husband was
involved in marketing cognac produced on his family estate in France. A few
years later, the wife set up a business in New York, where she subsequently
took their child, informing her husband that she did not intend to return. The
husband instituted divorce proceedings in France, and a few months later the
wife instituted such proceedings in England. The husband then applied to the
English court for a stay of the English proceedings. He subsequently returned
to live in France. Reversing the decision the decisio0n of the lower courts,
the House of Lords held that a stay should be granted. The very strong factors
connecting the case with France meant that, prima facie the French court was
the appropriate forum. The Court of Appeal had refused a stay on the ground
that if in the French proceedings it was found that the wife was exclusively
responsible for the breakdown of the marriage, she might be refused any
financial relief, except for the maintenance of the child, whereas such a
finding in the English court would not have that effect. The House of Lords,
however, held that for the wife to be deprived of that advantage by the
application of French law could not be held a substantial injustice to her, in
view of the parties’ connections with France. Thus the stay should be granted.
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[2] (1954)AC.155.
[3] (1948) all ELR 83.
[4] (1994) 1 F.L.R.410.
[5] (1896)116
[6] (1896)722
[7] [861]9Hl
[8] [1940]Ch 46
[9] [1879]PD 94
[10] [1969]1QB
[11] [1940]Ch 46
[12] [1958]P. 204
[16] [958]P. 204
[17] English domestic laws
[18] S46(2) of the Matrimonial causes Act of 1973
[20] [1906]. Pg 135
[22] Indyka vs Indyka CA 1966
[24] Cap 252: revised edition
2008[1962]
[25] Article 21
[26] 1986
[27] Sec 44(1)
[28] S 45
[29] S 46
[30] Section 2 & 3
[31] Court of Appeal (1953) p 246. A divorce granted by a foreign court to a
wife should qualify for recognition if
the English court in equivalent circumstances would have had
jurisdiction.
[32] Art 2.
[34] Matrimonial Property Act,2013 section 2
[35] (1958)
[36] (1972) 3 W.L.R 735
[37] (17470 2all er 112
[38] (1985) FLR 1097
[39] (1950)
[40] Section 22 (1)
[41] Evidence act section 118(a) and matrimonial causes act section 22
(2)
[42] (1956)2AER 259
[43] (1936) 1 KB 382 CA
[44]( 1987) 2 All E.R. 1
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