Marriage and Divorce in the Conflict of Laws

The traditional tests for the validity of a marriage in Canada (which adopted the rules established by the English courts in the nineteenth century) was that a marriage had to be valid (i) where it was performed, by the lex loci celebrationis, and (ii) by the law of the parties’ ante-nuptial domicile, usually referred to as the question of “essential validity”. Simon Fodden correctly stated the law in his earlier post.

With respect to the lex loci celebrationis, the ceremony had to comply with the rules of the place where it occurred—the minister had to be licensed, a licence obtained by the parties, etc. In the eighteenth century, the English courts recognized as a valid English marriage a marriage performed in Scotland, notwithstanding that the parties, usually being under 21, could not validly marry in England without parental consent. This fact is the reason that, had they been minded to, Lydia Bennet and George Wickham could have married in Scotland and become respectable. Many Georgian romance novels, e.g. those of Georgette Heyer, deal with “flights to the border” with the woman’s father in hot pursuit. Gretna Green became famous because it was the first place on the main road north of the border where a person, the local blacksmith, could be found to perform the marriage. Gretna Green lost its popularity once Scotland required residence in Scotland for three weeks before being able to marry there. No one would choose to spend that time in Gretna when the sights of Edinburgh beckoned!

In Brook v. Brook (1861), 9 H.L.C. 193, 1 E.R. 703, the House of Lords dealt with the question of essential validity and held that the marriage of a man to his deceased wife’s sister in Denmark was invalid because such a marriage was within the prohibited degrees of affinity under English law, the law of the parties’ ante-nuptial domiciles, though not under Danish law. (It was on this ground that Henry VIII was able to divorce Catherine of Aragon. The problems that the English courts and legislature had with marriages like that of Mr. Brook are truly extraordinary. They are wonderfully retold by E.S. Turner in Roads to Ruin, a book that I once had but now can no longer find.)

It is the law laid down by the House of Lords in Brook v. Brook that the lawyer for the Department of Justice was absolutely correctly, if imprudently, relying on for his argument that the marriage in Ontario of a same-sex couple domiciled in Florida or the United Kingdom, was invalid.

From one point of view, it made no sense for the English courts to recognize as a valid English marriage a marriage (in Scotland) that was designed to evade a requirement of English law. From another and far more important point of view, it was the right thing to do. The reason for this conclusion is that a marriage is a fait accompli in the lives of the parties and for centuries the common law set its face against rules which would invalidate a marriage. If a couple married in Scotland, notwithstanding that they could not marry in England and lived together for many years, it would be grotesque if (i) their children were illegitimate (then a very serious problem) and (ii) the woman had no right to succeed to the man’s estate.

What is wrong with the rule regarding essential validity, is that in the structure of conflict of laws, it functions as a choice of law rule. Conflicts is a monstrous construction. I won’t go into my arguments for saying this—they offend conflicts scholars, though none of them have ever told me why my views are wrong—but the domicile rule, correctly described by John Gregory, is part of this. What it could do and frequently did was to invalidate marriages where there was no good reason not to have regard for the fundamental policy of holding marriages to be valid. As a choice of law rule, it was wholly indifferent to its effects.

The conflicts rules for marriage were tested at the end of WW II. People living in dis-placed persons’ camps married without giving much thought to the legalities, and when these marriages were later tested, the English courts often simply refused to follow the law as laid down by the House of Lords because doing so would have the effect of invalidating a marriage. The cases are of course not consistent. I wrote a long article, “A New Approach to Marriage and Divorce in the Conflict of Laws” (1974), 24 University of Toronto Law Journal 17, which sets out the law and describes the cases.

A colleague of mine put this situation to me:

The position taken by Justice can have all sorts of very bizarre repercussions. What if a same-sex couple was married in Ontario at a time when both parties were domiciled in Texas, and then subsequently emigrated to Canada. On their arrival in Canada as landed immigrants, should Canada take the position that their marriage is invalid on the basis of the ordinary rules governing conflicts in family law?

Traditional doctrine, i.e., the law laid down by the House of Lords, would say, tant pis, you are not married! The problem with this response is that the couple may not realize that their marriage is invalid and when, many years later, the validity of the marriage matters, it may be too late for them to do much about it.

A better place to start would be to adopt a Canadian domestic principle that events that are faits accomplis in the lives of the parties be recognized as effective unless under Canadian law there is some good reason not to do so. (A good reason under Canadian law not to recognize a marriage might be the existence of a prior marriage or the non-age of one of the parties, i.e., he or she was too young to be able to enter marriage.) This approach can deal with the situation where the parties in my colleague’s example, on arriving in Ontario, are told their marriage is invalid and simply go their separate ways. That event becomes a fait accompli and should be recognized as such. This approach is emphatically not a choice of law rule; it is the straightforward application of domestic Canadian law, informed by, for example, Charter values, with, as appropriate, due consideration for foreign law. Conversely, the parties’ marriage, notwithstanding that they might have walked away from it but did not, should be valid in Ontario once they have relied on it.

The problem with divorce is similar. What a divorce does is re-confer on the parties the capacity to marry other people. Yes, it deals with support, children, etc., but those questions can be dealt with outside a divorce.

The principal problem with divorce is created by the fact that the court that hears the petition applies only its own law; in conflicts terms, there is no choice of law component. What was wrong (from the Canadian point of view) with a “quickie” Nevada or Mexican divorce years ago was that the Canadian values in sustaining a marriage—leave aside the question whether they made a great deal of sense—were ignored by the Nevada or Mexican courts. If Canada now, having abolished the residency requirement for a Canadian divorce, becomes like Nevada, we can divorce as many couples as we like but there is a strong likelihood that the places where the people return to (or the place where one party may have remained) may not recognize the divorce. In other words, they may not be able to re-marry in those places or reasonably expect to have their support obligations dealt with by Ontario law.

Before the Divorce Act was amended to make the recognition of a foreign divorce much more likely, there were huge problems created for a person who had relied on a foreign divorce—it was a fait accompli in the person’s life—and truly horrible decisions were made. The courts’ attempted, as they always do, to do the right thing and the law became very complex, very uncertain and, in true conflicts fashion, quite exotic. Again, my article deals with some of the cases and problems. What is most important to understand is that the conflicts approach was completely indifferent to the values at stake; they were as likely to be frustrated as forwarded.

Just as Canadian courts do not take jurisdiction just because a plaintiff has issued a statement of claim in Ontario, naming an out-of-province defendant—there has to be a real and substantial connection or submission—so they shouldn’t take jurisdiction to hear any petition for divorce just because they are asked to. At the very least, they should, as they never have, consider the law of the foreign jurisdiction. I do not argue for this as a choice of law rule, but simply that, under Canadian law, it might be fair to the responding spouse or respectful of the foreign law to have regard to his or her rights under the foreign law. It seems to be hubris to imagine that other countries will simply recognize what we do just because we have done it.

What is certain is that whatever we do there will be complex problems; the best we can do is to consider what our values seek to protect and consider the application of foreign law solely from that point of view.