The institution of marriage
The institution of marriage creates duties, conjugal relationships, and certain rights between the spouses and in case of the breach of these obligations, the law prescribes a procedure to be followed to escape the liability of marital obligations i.e., divorce. The Principles of Comity or Courtesy and, the Principle of Reciprocity are used by the Courts to resolve conflicts of law when a foreign element, such as Private International Law, is present.
The relevancy of International perspective on the institution
Most states acknowledge that families are the fundamental unit of society and pledge to maintain the institution by granting it a set of rights that can only be modified or terminated by judicial decision. Few states either forbid or discourage divorce, generally due to the dominant religion there. To reflect ‘failed marriages’, the majority of secular governments, however, make no-fault divorce an automated process. As divorce is no longer of significant legal significance in the majority of governments worldwide, the requirements for the international recognition and enforcement of foreign divorces have also changed considerably, which has had a significant impact on social policy in many nations.
A German man and a Turkish woman, get married and live in Poland until their relationship breaks down. At that point, the wife moves to Nevada because she has heard that American courts provide speedy divorces and hefty maintenance and property settlements. When the husband learns of this scheme, he immediately relocates himself and all of his possessions to Ireland since he has heard that Irish courts do not recognise and uphold American divorce judgements and any ancillary orders.
For the court systems, which are required to accept jurisdiction over people who may be temporarily within their territorial limits and to enforce the judgements and decrees of foreign courts, this might lead to major issues. Any personal enmity between the parties that led to the divorce may make these more technical issues worse.
Marriage from an international perspective
In cases of legal controversy, the notion of marital validation (or “favour matrimony”) nearly always applies. It is particularly potent in the United States. These practices are reflected in many family law theories, including the acceptance of “common law marriage” in several jurisdictions. The Due Process and Equal Protection clauses provide a basic right to marriage, according to the U.S. Supreme Court. Marriage has been widely recognised due to the number of rights and duties that flow from the status of marriage, as an institution.
Marriages that are legal at the place of celebration are typically recognised under the Hague Convention 1978 on “Celebration and Recognition of the Validity of Marriages”. Although the Marriage Convention recognises unions between diplomats or consuls, it does not cover unions that take place informally, by proxy, posthumously, under the control of the military, or aboard ships or aeroplanes. Only those grounds listed in Article 11 (bigamy, close familial relationship, lack of age, absence of mental sanity, or lack of consent) or, Article 14 (marriage recognition) may result in a denial of marriage recognition. Yet there is never a need for non-recognition under the law of favour matrimony: the Contracting States are allowed to use “rules of law more favourable to the recognition of foreign marriages,” according to Article 13.
Countries like the United States, Canada, and several European countries have become more diverse due to global migration. Courts in these countries have applied state marriage laws to weddings conducted in different religions, and traditional marriage policies may be upheld even if the couple doesn’t comply with licensing requirements. The US courts recognize marriages conducted abroad, but the contemporary goal is to manufacture universal recognition rules that acknowledge marriage irrespective of their geographical particulars.
To protect the expectations of the parties and to check the circumstances of conditional validity based on geographical boundaries, it is suggested that the comity should be extended to foreign marriages.
Divorce from an international perspective
Jurisdiction for divorce in the US is based on the petitioner’s residence. The respondent has the right to notice and hear but the court doesn’t require a basis for exercising full personal jurisdiction. For financial incidents of marriage, the court needs personal jurisdiction over both partners. This division of divorce jurisdiction creates complexity for courts and practitioners. Similar rules are applicable for the recognition of judgements of foreign lands as a matter of comity.
The state, under the provisions in Sections 70 and 71 of the Second Restatement, can annul a marriage, provided one, or both the parties to the marriage have a common domicile in the State. The state may utilise this authority even if neither spouse is a resident of the state, according to Section 72, “if either spouse has such a relationship to the state that would make it acceptable for the state to dissolve the marriage.”
According to Section 285’s definition of the law to be followed, “the local law of the domiciliary state in which the action is brought will be applied to determine the right to divorce”.
Nations with civil law acknowledge nationality as a foundation for jurisdiction over issues relating to personal status, including divorce. Foreign-citizen couples that acquire residency in the US before one partner leaves for their home country for divorce present a challenge to courts Domicile tests may be used differently in countries with a common law tradition, with the American version being more flexible and in line with the European idea of habitual residence. According to Friedrich Juenger: “Usually a person’s habitual residence will be the same as his domicile in the American sense. Roughly speaking, one might say it equals domicile minus esoterics.”
The Brussels IIA Regulation governs jurisdiction for divorce within the European Union. When both spouses regularly live inside the state’s borders, courts in EU member states have jurisdiction over divorce, legal separation, and marital annulment cases. A court may also exercise jurisdiction based on that if both parties have their nationality or residence in the same state.
The Second Restatement doesn’t have specific rules for recognizing judgments dissolving marriages, but comments and illustrations in Sections 92 to 97 discuss divorce judgments. The duty of states to provide faith and credit to sister state divorce judgements has been examined by the U.S. Supreme Court in a long series of decisions and hasn’t revisited the issue in fifty years. A legitimate decision made in a foreign country following a fair trial in a contentious matter will be recognised in the United States as far as the immediate parties and the underlying claim are concerned, according to Section 98 of the law. The Restatement (Third) of International Relations Law (1987), which covers Recognition of Foreign Divorce Decrees under Section 484, provides a more detailed explanation of the comity concept.
The Second Restatement’s definition of jurisdiction for divorce purposes is more limited than the one in the Restatement of Foreign Relations Law, which includes habitual residency and makes frequent references to the Hague Divorce Convention extensively.
Although this is a proactive strategy, the section was drafted during a time when people would travel outside the US to countries like Haiti or the Dominican Republic to obtain a divorce due to strict divorce rules in their state. Today’s globalised families, who have intricate relationships and affiliations to several nations, view life differently.
Conclusion
Preparing for the Third Restatement of Conflict of Laws, family law trends suggest new approaches to marriage and divorce conflicts. the trend towards wider acceptance of international unions should continue, given globalization’s importance of durable and portable family status. Concerns about technological flaws of formalization are less crucial, but vigilante action is required to implement protective rules regarding free consent and the minimum age for marriage. International human rights norms provide a reference point for emphasizing the importance of free consent and respect for family relationships. Priority should also be given to methods that encourage international acceptance of alternative statuses like registered partnerships and civil unions.
Author(s) Name: Kasturi Bhowmick (University of Calcutta)
