Conflict of Laws, Family Law - Essay Example

Name Tutor Course Date Conflict of Laws The conflict of law presupposes a position in which the court or the judge in this case faces a claim that need to be determined prior to the adjudication on the main issue. The conflict of law is a dispute occurring within a dispute, which reflects a dispute about the how and why the actual substantive dispute is to be settled. A foreign law governs the actions involved within the arising issue as mostly the dispute contains a foreign element. Therefore, a judge may be required to apply a foreign law in the determination of a dispute, but such a determination will need to occur within a framework that shows reasonable and reviewable control. Furthermore, the court may have to determine how many courts or countries have jurisdiction over the case and the system of law to which it applies. Judges may respond to the conflict of law through due process determined by characterisation and incidental question. The following analysis explores the use of characterisation and incidental question in family law using case law to provide illustrations. Characterisation The concept of characterisation refers to the second stage in the conflict of law, which involves the classification and qualification of the law to determine how to resolve a suit that involves a foreign element. Characterisation involves demarcation of the choice of law and jurisdiction over issues. The subject matter of characterisation as noted by Allarousse includes the factual situation, the nature of the issue presented to the court for a solution, a cause of action, a claim or defence, a legal relationship, and a rule of law (481). The conflict of characterisation and issues involved ultimately comprises of the choice of the relevant law, scope of characterization, and prospects of a solution. The problem of characterisation became prominent in conflict of laws as the legal system began appreciating that although rules in conflict of laws from different countries were the same, identity of results in individual cases would not follow because of latent conflicts inherent in the different systems of laws (Lorenzen 743). This became known as the identification problem with different classes of cases. For example, a situation may be characterised under the law in a different way than that characterised in the law of the state in which it is connected, and may be regarded by one law as presenting a question of contracts and by another law as a question of torts or property. The question may also represent a question of matrimonial property while law in another country may view the question as that of succession, thus making it an administrative issue. The divergences in classification and different rules in conflict of laws may thus become application. The determination then becomes whether the characterisation would be on the basis of the law of the forum or on that of the foreign law. The development of characterisation has occurred on three fronts related to the issues of concern, these include the characterisation by lex fori, characterisation by the lex causae, and characterisation by reference to independent and universal concepts (Allarousse 481). Identification by lex fori shows determination based on the domestic law if the court presiding over the case. This means that a court must always decide a matter of characterisation based on the concepts of its own domestic law. However, lex fori faces challenges in which by determining that the local law is applicable may lose its control. Lex causae refers to the law or laws selected to facilitate the case based on relevant legal systems, in which the court uses local laws that show the cause of the ruling. In English family law the development of characterisation has been based on the case of Ogden v. Ogden, in which a French woman married an Englishman who later filed for nullity of the marriage under the argument that she was still married to another (Frenchman) at the time of the ceremony. Her marriage to the Frenchman had been nullified previously in a French court based on lack of parental consent to marry a minor. This created the situation of validity of marriage based on the existence of a previous marriage and extends to the want of consent and marriage age. The English court considered whether the marriage was valid based on extra-territorial recognition, and essential validity in which a marriage is valid if the person met the requirements of the English law (Allarousse 493). The court found the marriage valid. Within the English court, family law cases pursue the lex fori model unless in cases where there is a dispute over the validity of a marriage that took place outside England, in which case the court will allow the lex loci celebrationis. As explained by Hill and Shúilleabháin, lex loci celebrationis is a recognition that a couple may not reasonably respond to the English law in formalising their marriage in areas where such law may not have a legal foundation, and thus the couple would marry within legal boundaries established in the country, although English law adheres to an internationally accepted standard to avoid marriages considered legal in one country but illegal in another (360). The cases Pazpena de Vire v. Pazpena de Vire (2001), and A-M v A-M (2001) show the challenge of lex loci celebrationis, in which the court has to determine legality of a marriage based on laws from another state. For example, Pazpena de Vire v. Pazpena de Vire (2001) involved a woman of German origin with an Argentinian born man, who obtained a marriage contract from Uruguay using a proxy. The woman claimed the marriage was legal while the man claimed it was invalid. The court held that it was legal based on insufficient evidence to declare otherwise, and thus granted the woman the right to seek a divorce. An element to note in the English law is the dual domicile test, that signifies both parties have the capacity to enter into that particular marriage under the laws of jurisdiction where they are domiciled immediately before the marriage. The use of the domicile test in characterisation determines the validity of the marriage, and the law under which the marriage is valid. For example, the case Padolecchia v. Padolecchia illustrates a case in which a marriage conducted in Italy and divorce proceedings were finalised in Mexico remained valid in Italy. This validity became an argument for the annulment for a marriage later conducted, in which the man involved married another woman in England while domiciled in Denmark. He sought divorce in Denmark, in which the Danish court had to consider whether he had capacity to marry. Remarkably, characterisation presents a critical conflict of law in family law because of the extent to which different cases are applicable. For example, English common law applies to marriages joined in countries where the Crown has the right of extraterritorial jurisdiction as shown in Wolfenden v. Wolfenden (1925) (Hill and Shúilleabháin 362). Further, as identified in Hooshmand v. Ghasmezadegan, the court will consider validity of a case in which marriage was conducted in another land, although the couple may have base on cultural and religious elements been able to fulfil certain conditions of the land where the marriage takes place. Notably, the English law seek to maintain the observance of the status established in the law in all cases of marriages, which has contributed to the maintenance of lex fori in characterisation, to avoid people leaving temporary to obtain marriage certificates in other states as a way of avoiding the English marriage law. Therefore, characterisation of conflict of law in family law focuses mainly on sustaining the law of England rather than the foreign law despite the case having the international aspect. Incidental Question The incidental question arises in situations which the court has to decide a main issue with foreign elements and it requires consideration of a subsidiary question which contains foreign elements. As Panagopoulos notes, the incidental question occurs if by the English conflict rule, the main question is governed by a foreign law and the subsidiary question is, under the English conflict of laws, to be governed by a different law than would have applied under the conflict riles of the law governing the main question (107). Adherence to the incidental question means that if a court determine the main question using foreign choice of law rule, then determination of the secondary question should also be determined in the way the foreign court would have determined it. The determination of the rule would thus reflect what the foreign court would have done. The argument is that applying the English choice of law rule even to the subsidiary question would result in different result. A case that exemplifies the incidental question regarding marriage and divorce is Lawrence v. Lawrence, in which the wife married in Brazil, then obtained a divorce in Nevada and married another man immediately in Nevada. The Brazilian law did not recognise the divorce. The second husband asked the English Court of Appeal to rule on the validity of the marriage, in which the court ruled that she lacked the capacity to marry the second husband. The reason was that the Brazilian law determined she did not have the capacity to marry as she remained married, hence the validity was determined based on lex loci celebrationis. The law governing her first marriage was that applicable in determination of the validity of the second marriage, on which the incidental question arose. Another illustration in the incidental question is the law of succession. For instance, a conflict of law in which succession is determined under Mexican law, and under Mexican law the property could devolve to the legitimate children of the deceased, then the incidental question becomes whether the children are legitimate. Such a determination should be done under the Mexican law to avoid conflict in how each country determines legitimacy. If the two countries agree on the definition, then that is agreeable, but those should not be the issue. If they disagree, then the main issue and the secondary issue should be governed under the same law of the foreign country, lex causae approach, although the court may rule for lex fori. Incidental questions regarding succession requires the court to further decide on whether the question is governed by the law of the forum or that of the domicile (Jaeger & Hök 56). As Lorenzen explains the issue of domicile informs the administration of the estate, because the country a person treats as their permanent home or lives may require inclusion of the law of the domicile (743). Therefore, the church may need to decide the case in the same way a judge in the domicile would do rather than using the English law. The case of King v King 1962 explores the issue of domicile regarding the execution of a trust for children born in Louisiana but whose trust and its execution has been in Georgia. Within the English law, the case Szechter v. Szechter shows that lex fori will continue to remain pertinent in English law even in the case of incidental question, based on the presupposition that the English law will always remain applicable unless and until the relevant foreign law is proved. In the stated case, the applicable law marriage law was the Polish law, but when the witnessed involved was not able to appear, the court reverted to the English law. Conclusion Cases that involve a foreign element requires the decision of the system of law to be applied to the entire case or to particular issue(s). The identification process involves characterisation or classification of the relevant issue, selection of the rule of conflict of laws that lays down a connecting factor for the issue under deliberation, and identification the system of law tied to that connecting factor. Within the identification, the court seeks to determine the forum in which the issue is stipulated, the applicable conflict of laws, characterisation or classification of relevant issue, selection of the rule of conflict that lays down the connecting factor for the issue, and the identification of the system of law which is tied by that connecting factor that issue. As the case develops, then it becomes paramount to define the question of incidence and characterisation. Works Cited Allarousse, Veronique. “A Comparative Approach to the Conflict of Characterisation in Private International Law.” 23 Case w. Res. J. Int’l L. 479 (1991). Web. 20 Nov. 2016. Hill, Jonathan and Máire Ní Shúilleabháin. Clarkson & Hill Conflict of Laws (5th Ed.).’ Oxford: Oxford University Press, 2016. Print. Jaeger, Axel-Volkmar and GöTZ-Sebastian Hök. FIDIC – A Guide for Practitioners. London: Springer, 2010. Print. Lorenzen, Ernest G. “Qualification, Classification, or Characterisation Problem in the Conflict of Laws.” The Yale Law Journal, 50(1941): 743-761. Web. 20 Nov. 2016. Panagopoulos, George. Restitution in Private International Law. Oxford: Hart Publishing, 2000. Print. Read More