DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 29

Celebration of marriage

1. Capacity for marriage shall be governed by the law of the domicile of each of the future spouses.

2. The requirements of matters of substance and of form of a marriage celebrated in the Caribbean shall be governed by Caribbean law.

3. A marriage celebrated abroad shall be deemed valid if it is in conformity with the law of the place of celebration or if it is recognised as such by the law of the domicile or of the nationality of either of the future spouses.

248. Article 29 of the Law summarises the intricate matter of the validity of the marriage in three simple and easily applicable provisions, distinguishing between the legal rules governing the marriage celebrated in the Caribbean and that celebrated abroad335. In the first case, besides the corresponding issue relating to the Caribbean authorities' competence to authorise a marriage, the problem of the law applicable to the different aspects arises, surrounding the celebration and validity of a marriage: essentially, the capacity for marriage, the form of the manifestation of the matrimonial consent and what we might call the law applicable to the substance of the marriage. In the second case, the provision is not constituted as a rule of the applicable law, but as a provision that establishes the conditions of recognition. This set of regulations responds to a modern view of marriage in private international law, which differentiates between domestic marriages and foreign marriages depending on the nature of the authority celebrating the marriage (national or foreign) and, as a result, also establishes a different legal rules governing each of them: as has been said, the first type poses problems of applicable law, while the second type poses problems of recognition336. The importance of considering a marriage validly celebrated transcends the mere aspects of private law, where the marriage is a nuclear institution, from which effects can be derived for many other matters (name, maintenance obligations, inheritance rights), to establish itself even as an important piece in the identification of the own population of the Caribbean. The relationship between marriage and obtaining the nationality of the Caribbean is crucial in some systems337.

249. In accordance with provisions of article 23 of the present Law, the capacity for marriage is subject to the law of the domicile of each of the future spouses. It is therefore a solution that is linked in a distributive manner, in such a way that it is the law of the domicile of each one of the future spouses that determines their singular capacity. Obviously, this solution in terms of validity of the marriage by reason of the capacity of the future spouses will require that both laws consider that this capacity coincides for each of the future spouses. It is sufficient that either of the future spouses lacks capacity in accordance with the law of their domicile so that such a defect can determine some degree of ineffectiveness of the marriage celebrated338.

The law of the domicile thus not only governs the strict issues of capacity related, for example, to the minimum age for marriage339 or the cases in which, despite having this minimum age, there is a lack of actual capacity to give truthful and informed consent (concurrence of deficiencies or mental anomalies, which, however, will be more of a factual than a legal evaluation), but also the so-called matrimonial impediments, which focus on personal or family circumstances, such as the impossibility of marriage between family members related up to a certain degree of kinship. Again, this distributive application can lead to the thwarting of the marriage in those cases in which the impairment is of the so-called bilateral variety (articulated according to the relationship with the other spouse) and only provided for by one of the two laws. Thus, v.gr., if the law of one of the future spouses connected by kinship in the third degree in the collateral line (aunt and nephew) considers this third degree to be an impediment, they will have to conclude that there is no authorisation of the marriage, even if the law of the domicile of the other party does not provide for such obstacle.

This Law is also required to establish the circumstances and conditions in which the impediments might be “dispensed” with as well as under what circumstances and who is responsible for integrating the capacity in the cases in which it is lacking. This fact is not free of problems in those cases in which the law of the domicile instructs a specific authority to substantiate the petitions for dispensation, since according to the specific cases, this dispensation may be granted by the equivalent Caribbean authority (forum) and in other cases, the future spouses will be the ones who have to obtain this from the foreign authorities. It must be considered, however, that many of those that theoretically can be considered as impediments to a marriage are an integral part of the very concept or notion of marriage which, in any case, is the concept of the Caribbean (of the forum). This can be the case of the sex or, to a lesser degree, of the traditional impediments of nuptial tie.

It is certainly arguable that is the sex of the future spouses is a matter to be regulated by the law of the domicile of each person as if it were one of the above-mentioned bilateral impediments. The progressive openness of different legal systems to the authorisation of marriage between persons of the same sex has meant that the cases in which such marriages are celebrated tend to be restricted to the territory (or the consulates, as appropriate) of the countries that recognise it. In practice, the celebration of marriage between two men or two women is not going to be requested from a Caribbean authority that does not provide for such a marriage. If one were to seek to extend this condition to a question of capacity, two persons domiciled in Argentina, or in Uruguay or in Spain could claim such a possibility. Probably, in some cases, the public order of the Caribbean340 would enter into operation, although such recourse is not necessary. The issue of the sex of the future spouses is an integral part of the concept and content of the marriage of the forum and, from this perspective, falls within the second paragraph of this article 29, also exempting the provisions of article 23 on the law applicable to the civil status, since, even discarding its classification as a question of capacity, does not cease to be undoubtedly a question of civil status. It must be taken into account, in any case, that the celebration of this type of marriage may not be alien to the practice of the Caribbean, according to which it is thus recognised progressively by each State of the Caribbean and, even today, according to principles such as “concordance” and “recognition” in the systems with a Dutch341 legal legacy or the beginning of “identity or legislative assimilation” in the countries with a French342 legal legacy.

250. The above-mentioned paragraph two governs the requirements of substance and of form of a marriage celebrated in the Caribbean and, once again, a simple and fully consistent response is given with the nature of the matter. The authorities of the Caribbean cannot celebrate a marriage that is not their own, since both the formal matters as well as the substantive issues are subject to the law of the Caribbean (law of the forum).

With regard to the first aspect, the form of manifestation of the matrimonial consent, there is no doubt from the perspective of the marriage that is going to be entered into: the consolidated rule auctor regit actum indicates that each authority complies with its own law at the time of completing or demanding the formalities inherent in the act for whose grant it is required. It is inconceivable that a marriage celebrated in a Special Notary's Office of the Cuban Ministry of Justice or before a circuit judge or notary of one of the future spouses in Colombia, is subject to the formal requirements of a different foreign law than Cuban law, in the first case, or Colombian law, in the second case. The forms and solemnities will be those of the Caribbean.

Less absolute is the subjecting of the law governing the substance of the marriage to local law, because other solutions would be imaginable, but the acceptance by the second paragraph of article 29 that we are currently discussing is the most appropriate. On the one hand, the “type of marriage” which an authority celebrates is “theirs”. Taking into account the evolution in the concept of the family and the concept of marriage - as one of the possible ways through which the family is organised - that there has been in comparative law in the last few years, it could no longer be said that marriage is a universal institution which substantially means the same thing in any place of the world343. The marriage celebrated in the Caribbean is a Caribbean marriage, and, therefore, the underlying conditions are those established by the Caribbean legislation. The present provision thus deviates from others in that the substantive requirements of the marriage are potentially subject to different laws to the law of the forum, but coincides with others that opt for the same solution344.

Among these substantive conditions, one should mention, in particular, the condition relating to the sex of the future spouses since it has already been mentioned, and the content of their consent. It is this second aspect, which is of paramount importance, since, not infrequently, it has traditionally been considered as inextricably linked to the personal law of each of the future spouses345. In a strictly logical sense, there can only be one matrimonial consent, as this is a nuclear requirement of the marriage. That is to say what the future spouses agree to is nothing other than to constitute a union as the conjugal bond subject to the legal rules. And these rules may only be singular and not plural. It is an attack on logic to conceive the provision of the matrimonial consent as an asymmetric reality, in which each of the spouses can consent to something different to what other consents to, according to which the consent of one is subject to their personal law and consent of the other to theirs. This is not possible. It is a kind of traditional residue of the expansive force of the personal law, which lacks any basis. Matrimonial consent is thus univocal and that is which the law of the Caribbean provides for connected to its concept of marriage.

251. It is also possible to extend this to the possible defects of consent and the most common problem of marriage celebrated though a simulation in the consent. The so-called sham marriages are those in which the will of the future spouses does not coincide with the manifested matrimonial consent. The reasons for this practice are manifold, but among them are reasons related to an attempt to defraud the regulations on the acquisition of nationality or the regulations on a person's situation as being an alien. The control of this type of situations tends to be eminently factual and, in many cases, unrelated to a specific policy: it is noted that the future spouses (or the spouses, if the verification is performed a posteriori), did not know one another before the marriage, did not have any kind of relationship, did not live with one another before or after of the celebration of the marriage, etc., and if it is deduced from this that there was a simulation. However, proper treatment of the subject requires a more scrupulous verification of the simulation, taking into account, above all, the fact that it is not a mere legal transaction, but one which represents the exercise of the ius connubi that is called into question. From that point of view, the existence of fixed rules or mere presumptions with a greater or lesser degree of predictability makes clear the identification of an applicable law beyond the merely factual assessment. In the case of article 29, which we are discussing, this is the law of the forum for the cases of marriages celebrated or to be celebrated before the Caribbean authority.

252. This article concludes with a provision on the recognition of the marriages celebrated abroad. Despite its appearance, it is a genuine recognition standard (and not of applicable law), which establishes a generous range of possibilities, from the recognition of the validity of the marriage to its ineffectiveness. While in the marriage concluded with the Caribbean authorities the provision is the application of the law of the forum, except as regards the capacity, concerning the validity of marriage concluded before foreign authorities, the standard is oriented towards the validity of the marriage through a threefold possibility articulated in an alternative form. The marriage is valid if it conforms to the law of the place of its celebration. The reference is to a single law, although its provisions of private international law may be taken into account. If it is not an application of the law of the place of the celebration of the marriage by the authorities of the Caribbean, the rule excluding the referral referred to in this Law346 is not relevant. Thus, a marriage celebrated abroad that is valid applying the local law and the personal law for the capacity in accordance with the provisions of private international law of the local law will have to be considered valid for the Caribbean.

And that is the case of the two alternatives that are linked beside local and foreign law: depending on the cases, these two alternatives can be four: each of the spouses' national law and each of the spouses' law of the domicile. In this case a prerequisite of recognition has to be considered again, which instead of being established unilaterally by the law of the Caribbean, refers to an entire competent legal system: if the marriage is valid for any of those laws, whatever the law or laws effectively applied to its celebration, the marriage must be considered to be valid in the Caribbean. It is a generous response to the problems that that may arise with limping marriages (valid in one place and invalid in another) under the prism of the stability of the civil status and the law regarding the family and personal life, as well as to ius connubi. In any case, it is fair to remember that this recognition, as noble as it may be, cannot grant efficiency to cases contrary to the public policy of the Caribbean, in whose determination the prohibition of sham marriages once again plays an important role (lack of specific provisions on the subject).


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