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Conflict of Laws With Regard to Marriage

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Summary

Introduction
According to Fawcett, private international law (Conflict of Laws) is that part of domestic
law which comes into operation whenever the court is faced with a claim that contains a
foreign element.1
It has also been described as meaning “the rules voluntarily chosen by a
given state for the decision of cases which have a foreign complexion.”2 Events and
transactions that often involve a foreign element include contracts, succession, marriage, etc.
Marriage is a contract by which a man and a woman express their consent to create the
relationship of husband and wife.3 The classical dicta of Lord Penzance, in Hyde V Hyde,4
has long been regarded as the most adequate definition of marriage, albeit in the English
context. In Lord Penzance’s learned opinion, “marriage, as understood in Christendom,
may…be defined as the voluntary union for life of one man and one woman, to the exclusion
of others.”
Laws of conflict of laws will be applied in matters of marriage that involve a foreign element.
Just like in domestic/municipal law, a marriage that involves a foreign element must meet
certain requirements for it to be recognized as valid
Over time, the requirements of a valid marriage have been aptly categorized into two separate
categories: rules relating to formal validity and those relating to essential validity. Formal
validity is concerned with matters such as the manner in which a marriage is to be celebrated,
whereas essential validity is concerned with the matters such as capacity of the persons
contracting in marriage.
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