Routledge Handbook of International Family Law

Barbara Stark, Jacqueline Heaton

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317043119
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Globalisation, and the vast migrations of capital and labour that have accompanied it in recent decades, has transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order. They file suits in their respective home states or third states, demanding support, custody, and property. Otherwise law-abiding parents risk jail in desperate efforts to abduct their own children from foreign ex-spouses.

The aim of this Handbook is to provide scholars, postgraduate students, judges, and practioners with a broad but authoritative review of current research in the area of International Family Law. The contributors reflect on a range of jurisdictions and legal traditions and their approaches vary. Each chapter has a distinct subject matter and was written by an author who was invited because of his or her expertise on that subject. This volume provides a valuable contribution to emerging understandings of the subject.

Part I
Marriage and marriage-like relationships

1
Marriage

Maebh Harding

Introduction

Marriage is an ancient social institution, present in all cultures. However, understandings of what constitutes a marriage and its legal and social consequences differ from nation to nation. This diversity raises different legal issues in cross-border situations where a particular marriage is linked to more than one national legal system.¹ Efforts have been made to create a multilateral international agreement to recognise marriages across international borders,² but consensus has been difficult to obtain. While regional agreements do exist,³ generally speaking, the rules determining whether or not a state will recognise a foreign marriage are determined by national or state conflict of law rules.

Marriage is both a private commitment between two spouses, creating obligations towards each other, and also a public commitment that is recognised by the state as creating a changed legal status. Many national legal systems treat married couples differently from unmarried couples, according benefits to the marital family in order to encourage the creation of stable, economically contributing family units. The state therefore has a national interest in determining who is married.

Parties to a particular marriage have a stake in ensuring that their horizontal commitment towards each other is upheld when borders are crossed. Some types of marriages are more universally accepted than others. A state’s failure to recognise certain types of marriages or to recognise such relationships as imposing a lower level of legal obligation from that agreed to by the parties undermines the validity of such relationships and may leave the more vulnerable spouse without appropriate legal protection.

While the right to marry is recognised internationally as a universal human right,⁴ within many international human rights instruments, priority is often given to national law to determine both what marriage is and its consequences. Article 12 of the European Convention on Human Rights limits the right to men and women of ‘marriageable age’ to marry according to the national laws governing the exercise of this right. However, the European Court of Human Rights has found that a state may not restrict the right to marry in such a way that the very essence of the right is impaired,⁵ and has held Article 12 to be violated where national law creates an arbitrary or disproportionate infringement.⁶ Similarly, Article 9 of the EU Charter guarantees the right to marry in accordance with the national law; however, national restrictions must be ‘rational, reasonable and non-arbitrary’.⁷ In the USA, marriage law is generally within the law-making competence of states rather than the federal government, although the US Supreme Court has long recognised the right to marry as a fundamental right protected by the US constitution.⁸ Most recently, in Oberfell v. Hodges⁹ all state prohibitions on same-sex marriage were found to be unconstitutional under the Due Process and Equal Protection clauses of the fourteenth amendment.

Moreover, other international human rights instruments protect against certain forms of harmful marriage practices. For example, Article 16 of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires marriage law to treat both spouses equally and also establishes that child marriages should have no legal effect.¹⁰ General Recommendation No. 21¹¹ makes it clear that polygamy is considered a violation of a woman’s right to equality with men. Although not all human rights protections are directly incorporated into national law, courts should take them into account as at least persuasive authority when considering whether to recognise a foreign marriage.

Conflict of law rules determining whether a marriage should be recognised must therefore grapple with three different normative goals: maintaining the forum state’s historical and social understanding of what marriage is and why it should be valued, ensuring that commitments to international human rights values are upheld, and dispensing justice for the individual spouses in question.

Traditionally, national systems have focussed on connecting a marriage to a single national legal system rather than considering the international context of these types of cases. Nonetheless, the application of such conflict of law rules often grants recognition to a broader range of relationships than the equivalent domestic law. The recognition of cross-border marriages can thus be a highly politicised issue. Where more lenient rules apply to foreign marriages than to purely domestic marriages this raises the risk of deliberate evasion of national law and requires states to consider the recognition of abusive relationships, such as forced marriages or child marriages. On the other hand, conflicts of law rules can be utilised as a positive force to modernise conservative family law.¹² There are many high-profile examples of the use of cross-border cases by campaigns to extend the right to marry within national law, from the furore over marriages to one’s deceased wife’s sister in England in the nineteenth century¹³ to the much more recent extensions of equal marriage to same-sex couples in the Western world.¹⁴

This chapter will examine complications caused by differing rules of domestic legal systems relating to capacity to marry within a cross-border context; in particular, the class of relatives who are permitted to intermarry and the need for both spouses to consent to the union. Focussing on English common law principles of conflicts of law, the chapter will raise two critical questions: What factors should the courts consider when deciding whether or not to recognise a foreign marriage that differs from forum state ideals? Is blanket refusal of all legal recognition at a national level a proportionate way of showing state disapproval for marriages that offend national policy and international human rights protections?

Prohibited degrees of relationships

Most societies place some sort of prohibition on marriage between close blood relatives and/or those connected by other sorts of kinship ties. However, the class of relatives prohibited from intermarriage in any particular legal system has varied substantially depending on culture and prohibitions have also evolved over time. For example, in Europe, the extensive rules of the Catholic Church in the sixth to eighth centuries prohibited marriage between those related by blood, marriage and ‘spiritual kin’ (for example, an individual and his or her godchild).¹⁵ In the USA, earlier colonial laws prohibited many different forms of marriage between those related by marriage, whereas from the nineteenth century onwards, prohibitions on marriages between first cousins were increasingly introduced.¹⁶ In Islamic law, marriage is also prohibited between those related by ‘milk kinship’ (for example two otherwise unrelated individuals who were breastfed by the same woman).¹⁷

The policy reasons underpinning these sorts of prohibitions have also varied widely. Goody argues that the extensive marriage prohibitions of the Catholic Church in early medieval Europe were designed to break the continuity of family property ownership.¹⁸ Although originally based on the biblical text of Leviticus, the common underpinning for the prohibited degrees in common law countries is Archbishop Parker’s table, itself composed to suit the personal needs of King Henry VIII to sire an heir in the sixteenth century.¹⁹ Such prohibitions were later justified at the start of the nineteenth century as necessary to prevent jealousy and inappropriate sexual feelings within the family group.²⁰ Ottenheimer argues that prohibitions on marriages between first cousins in the USA, ostensibly based on genetic risk,²¹ also encouraged the assimilation of ethnic communities at a time of large-wave immigration.²²

Today, the tendency in the Western world is towards a reduced class of prohibited relatives,²³ viewing wider prohibitions as disproportionate infringements on the right to marry.²⁴ However, in the nineteenth century, clashes between the rules relating to prohibited degrees of different European systems generated case law in which fundamental common law principles of conflicts of law were challenged. The traditional approach of recognising foreign marriages if they were valid in the place of celebration unless contrary to public policy²⁵ gave way to a more complicated set of principles when it came to determining essential validity (i.e. whether or not either spouse lacked the capacity to marry rendering the marriage invalid). At this point, Engl...