This document provides model answers to 3 questions taken from the 2021/2022 past paper for the International Private Law module. Author achieved a first class grade for the module.
James is domiciled in Scotland. In 2021 he married his cousin Ella, a Spanish
domiciliary aged 17 at a vineyard in Cadiz, Spain. James and Ella marry
without obtaining her parent’s consent. Under Spanish law parental consent
is required for the marriage of persons under the age of 18. Spanish law
requires two witnesses to be present at the marriage. The witnesses were to
be James’ best friends Rob and Mary. Unfortunately, Rob and Mary enjoy the
pre- wedding vineyard tour too much and ended up too drunk to attend the
wedding ceremony. Furthermore, cousins are not permitted to marry under
Spanish law. At the time of the marriage, James and Ella intend to establish a
permanent matrimonial home in Dundee, Scotland. They implement this
intention shortly after the marriage. Advise James and Ella if their marriage is
valid. In answering the question, discuss the choice of law rules concerned
with validity of marriage.
Total 100 marks.
Model Answer
James and Ella married in Spain, however, under Spanish law, persons under the age of 18
must have parental consent to marry. Ella is 17 years old, therefore she would require under
Spanish law to have the consent of her parents to marry. It is not clear whether James is
under 18 as well, but if he is found to be under 18, then he is also required to have the
consent of his parents to marry. Under section 38(2) of the Family Law (Scotland) Act 2006
(“FLSA 2006”), the question as to whether a marriage is formally valid is determined by the
“law of the place where the marriage was celebrated”, known as the lex loci celebrationis.
Since this is a matter of parental consent, the law of the place where the marriage occurred
(lex loci celebrationis) is used to determine the validity of their marriage. In Bliersbach v
McEwan, the marriage required parental consent under Dutch law where both the parties
, were domiciled. However, the parties had got married in Scotland which was the lex loci
celebrationis. Therefore, the marriage was held to be valid because the parties did not
require parental consent in Scotland. The case of Ogden v Ogden confirmed that parental
consent was formality governed by the lex loci celebrationis. Since the parties had complied
with the parental consent requirements in this case, the marriage was held to be valid. James
and Ella got married in Spain where the law requires parental consent to marry. Since James
and Ella did not have consent from Ella’s parents before they got married in Spain, the
marriage cannot be valid since Spanish law requires parental consent to make the marriage
valid.
James and Ella were married in Spain where the law requires that for a marriage to be valid,
two witnesses must be at the wedding. The intended witnesses to the marriage were unable
to attend the ceremony meaning there were no witnesses to validate the marriage. The
essential validity of a marriage is governed by section 38(2) of the FLSA 2006 where the Dual
Domicile Test can apply. This is where the court applies the law of the parties’ domicile
applies to determine validity. The case of Pugh v Pugh confirmed that the dual domicile rule is
the preferred choice of law rule. Ella is a Spanish domicile where under Spanish law it is
required that there be two witnesses at the wedding. James is of Scottish domiciliary where
two witnesses are also required by law. Therefore, on application of the Dual Domicile Test,
the marriage cannot be valid under Scots law as the law of both parties’ domiciles require
that two witnesses be present at the wedding.
The alternative choice of law rule that may be applied by the courts is that of the ‘Intended
Matrimonial Home’ Test. In this case, the James and Ella intend to establish a permanent
matrimonial home in Scotland. As a result, if the court was to apply to the Intended
Matrimonial Home test, they would apply Scots law. This was seen in the case of Lendrum v
Chakravarti where the court found that, upon application of the Dual Domicile Rule and the
Intended Matrimonial Home Test, the marriage was void and the court granted nullity of
whatever marriage existed between the parties. As James’s domicile is Scotland, the court
will look at Scots law. Scots law provides that two witnesses must be present during the
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