Conflict of marriage laws

The standard choice of law rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved:

Different minimum age requirements also can lead to problems in mutual recognition of marriages. A marriage of young children is in some countries deemed to be against the public order, minimum ages for recognition are sometimes set (which may vary from the minimum ages for marriage itself). For example, in the United Kingdom, 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 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 nullity. 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 supposed 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.

In Christian cultures, the Biblical proscriptions contained in Leviticus 18:6–18 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 (consanguinity); or
• where parties are related by marriage (affinity).

Several exceptions have been described for various Biblical figures, incestuous relationships such as Abraham and Sarah,[2] Nachor and Melcha,[3] Lot and his Daughters,[4] and Amram and Jochebed.[5]

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.

Polygamy may be polygyny (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 it was considered necessary to meet population or economic needs. 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 may provide more children. States which prohibit polygamous marriages under national law often also criminalize bigamy. Some countries, such as Canada, have made polygamy an offense under the Criminal Code. Under section 293(a) of the Canadian Criminal Code, 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 s. 293(b), there is a separate offense for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage".[6]

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:

• 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 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 rabbinic 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.

The vast majority of Muslim majority sovereign states recognize polygamous marriages: these states span from West Africa to Southeast Asia, with the exceptions of Turkey, Tunisia, Albania, Kosovo and Central Asian countries.[7][8][9][10]

In India, the Hindu Marriage Act, 1955 bans polygamous marriages, but polygamy is still legal for Muslims in India.

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.[11]

The first law providing for marriage of people of the same sex in modern times was enacted in 2001 in the Netherlands. As of 2022, same-sex marriage is legally recognized (nationwide or in some parts) in the following countries: Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, Netherlands,[nb 1] New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States[nb 2] and Uruguay. Polls show rising support for legally recognizing same-sex marriage in most of the Americas and Europe. Israel[12] recognizes same-sex marriages abroad - but do not allow same-sex marriages to be performed within its borders. In several countries worldwide a same-sex couple can be legally partnered in a civil union, domestic partnership or registered partnership. Couples in these unions or partnerships are afforded rights and obligations similar to, but not identical to, those of a married couple.

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.

• Family Law Act (Alberta, Canada)
• International child abduction

• Shah, Prakash. "Human Rights and Immigration Law". (2003) Vol. 52 International and Comparative Law Quarterly, 359-400.
• Sona, Federica. "Polygamy in Britain".
• Formal Recognition of Customary Law: An Analysis of the South African Experience in Passing Legislation Recognising Customary Marriages.