Rationality and cultural pluralism in the non-recognition of foreign marriages

International and Comparative Law Quarterly

Volumn 49, Issue 3, 2000, Pages 643-659

  Murphy, John ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84917272772     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S002058930006440X     Document Type: Article

References (83)

1. Formal validity is determined unerringly by reference to the lex loci celebrationis: see e.g. Berthiaume v. Dastous [1930] A.C. 79
2. Ogden v. Ogden [1908] P 46
3. Simonin v. Mallac (1860) 2 Sw. & Tr. 67.
4. see R. Fentiman, “The Validity of Marriage and the Proper Law” [1985] Cambridge LawJoumal 256
5. A. J. E. Jaffey, “The Essential Validity of Marriage in the English Conflict of Laws” (1978) 41 Modern Law Review 38.
6. See also Law Commission Working Paper No.89, Private International Law: Choice of Law Rules in Marriage (London: HMSO, 1985).
7. Approved and re-stated by Lord Parker CJ in Alhaji Mohamcd v. Knott [1969] 1 Q.B. 1,13.
8. Vervaeke v. Smith [1983] 1 A.C 145,164.
9. For other instances of judges acknowledging the role of “public policy” in this context see Russ v. Ritss [1964] P 315,327–328(per Willmer LJ)
10. Cheni v. Cheni [1965] P 65,97g (per Simon P).
11. It seems to have been accepted but not rigorously examined by a number of writers. Sec e.g. A. J. E. Jaffcy, A.C n.4, at 50
12. S. Poullcr, English Law and Ethnic Minority Customs (London: Buttcrworths, 1986) p.21
13. P. M. North and J. J. Fawcett, Cheshire and North's Private International Law (London: Butterworth's, 1992) p.626
14. J. O'Brien, Smith's Conflict of Laws (London: Cavendish, 1999) p.462.
15. See e.g. S. Poullcr, Smith's Conflict of Laws chap.3
16. A. J. E. Jaffey, Smith's Conflict of Laws, at 49–50.
17. A. J. E. Jaffcy, Smith's Conflict of Laws n.4, at 38 (emphasis added).
18. Cheni v. Cheni [1965] P 65,99.
19. Sec e.g. L. Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353, at 369
20. N. Duxbury, “Faith in Reason: The Process Tradition in American Jurisprudence” (1993) 15 Cardozo Law Review 601, at 610–632 and also the wealth of literature referenced therein.
21. See further on this S. Poulter,“Hyde v. Hyde: A Re-appraisal” (1976) 25 I.C.L.Q. 475.
22. [1972] 3 All E.R. 1026.
23. All E.R.,at l037.
24. I use this term to avoid distinguishing between bigamous marriages, potentially polygamous marriages and actual polygamous marriages the technical differences between which are unnecessary for present purposes. But for those interested, see S. Poulter, All E.R. n.13.
25. Of course, underlying this whole field there are a multiplicity of broader political issues that are unlikely to be raised by the litigants. One such issue, for example, is whether recognition might be refused as part of the general failure to recognise a foreign State and all its domestic laws (see e.g. the British refusal of foreign divorce decrees obtained from Rhodesia following the Universal Declaration of Independence in 1965: Adams v. Adams [1970] 3 All E.R. 572). Another such essentially political question surrounding this area of law is whether the roles governing the recognition of foreign marriages ought to be left to Parliament rather than the courts on the basis that the political process is more likely to produce a satisfactory solution to the problem of culture clashes.
26. This has been the Australian approach in Part Va of the Marriage Act 1961. For analysis, see M. Neave, “The New Rules on Recognition of Foreign Marriages—Insomnia for Lawyers” (1990) 4 Australian Journal of Family Law 190
27. P. E. Nygh, Conflict of Laws in Australia (Sydney: Butterworths, 1995) pp.375–389
28. E. I. Sykes & M. C. Pryles, Australian Private International Law (Sydney; Law Book Co. Ltd, 1991) pp.444–450.
29. Other examples of broad political issues that surround the recognition of foreign marriages can be found in Law Commission Working Paper No.89, Australian Private International Law n.4.
30. M. Freeman, “Images of Child Welfare in Abduction Appeals” in J. Murphy (Ed.), Ethnic Minorities, Their Families and the Law (Oxford: Hart Publishing, 2000).
31. That is, a marriage at which one or both parties was not present. Sec e.g. McCabe v. McCabe [1994] 1 F.L.R. 410
32. discussed in J. Murphy, “The Recognition of Overseas Marriages and Divorces in the United Kingdom” (1996) 47 Northern Ireland Legal Quarterly 35.
33. At one point in his famous judgment in Cheni v. Cheni, Simon P recast “public policy” in terms of unconscionability. He said: “[t]he courts of this country will exceptionally refuse to recognise [a marriage]… on the ground that to give it recognition and effect would be unconscionable in the circumstances”: |1965| P 85, 98. Sec also Lord Parker CJ's equally crepuscular re-formulation in terms of “repugnance” occasioned to “decent-minded men or women”: Alhaji Mohamed v. Knott, Northern Ireland Legal Quarterly n.5, at 15.
34. See further F. O. Shyllon, “Immigration and the Criminal Courts” (1971) 34 Modern Low Review 135, esp., at 136–138.
35. See e.g. McCabe v. McCabe [1994] 1 F.L.R. 410.
36. C. Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996) pp.4–5 (emphasis added).
37. Legal Reasoning and Political Conflict,at p.39.
38. Legal Reasoning and Political Conflict, at p.35 (emphasis added).
39. Legal Reasoning and Political Conflict, at p.47.
40. Sunstein states that commonality is reached at low levels of abstraction but it is more plausible that agreement is easier to reach at higher levels of abstraction: See N. Duxbury, “Ambition and Adjudication” (1997)47 University of Toronto Law Review 161, at 166–167.
41. C. Sunstein, University of Toronto Law Review n.26, p.39 (emphasis added).
42. University of Toronto Law Review, at p.40 (emphasis added). The importance of highly-valued commitments to rational decision-making arc discussed below.
43. See e.g. E. Hillman, Polygamy Reconsidered (New York: Orbis Books, 1975). For Muslims, for example, polygamy is only acceptable subject to the proviso that the man is able to provide adequately and equally for all his wives
44. see S. Poulter, Polygamy Reconsidered n.7, at pp.44–45.
45. Sunstein views such silence in “constructive terms”. His claim is that it can “help minimize conflict, allow the present to learn from the future, and save a great deal of time and expense”: C. Sunstein, Polygamy Reconsidered n.26, p.39.
46. See Taylor, “Judicial Review: Improper Purposes and Irrelevant Considerations” [1976] Cambridge Law Journal 272.
47. The fact that I consider balancing exercises of this kind to be a vital part of the adjudicative process should not be seen as an attachment to Dworkian principle-based decision-making. I am as happy for the decision-maker to take account of policy considerations as principles, not least because, ultimately, Dworkin's distinction between the two is unsustainable (see e.g. S. Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Oxford: Clarendon Press, 1989) pp.369–370).
48. See e.g. S. Poulter, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies n.7, at p.v.
49. For reported examples see R. v. Birmingham Licensing Planning Committee, ex p. Kennedy [1972] 2 Q.B. 140
50. Pilling v. Abergele UDC[1950] 1 K.B. 636.
51. S. Shan, In My Own Name (London: The Women's Press Ltd, 1985) p.24.
52. C. Ballard, “Arranged Marriages in the British Context” [1978] New Community 181, at 184.
53. New Community.
54. As Catherine Ballard comments, u[t]hcrc is an obvious contradiction between the South Asia view of marriage as a contract between two families which should be arranged by parents on their children's behalf, and the contemporary Western ideal that an intimate personal relationship should exist between a couple before they make a decision to marry: New Community, at 181 (emphasis added).
55. Values of instrumental worth can normally be measured in financial terms; values of intrinsic worth cannot. Neil Duxbury has captured the point well. “Whereas fungible property has a purely economic or instrumental value, personal property is property that the owner is bound up with to such a degree that its loss would cause him or her pain that could not be relieved simply by replacing the object with other goods of equal market value. Thus, a credit card is likely to be fungible, whereas many items of jewellery [such as a wedding ring] will (for their owners) have more personal significance”: see N. Duxbury, “Trading in Controversy” (1997) 45 Buffalo Law Review 615, at 616.
56. Borrowing from, and extending the analysis of, Joseph Raz, the fact that the judges are able to acknowledge and choose between different cultural norms “inevitably upholds a pluralistic view” for “(i)l admits the value of a large number of greatly differing pursuits among which … [the judges] are free to choose”: see J. Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986) p.399.
57. On the virtues of pluralism (and its distinctiveness from relativism) see M. Freeman, “Cultural Pluralism and the Rights of the Child” in J. Eekelaar and T. Nhalpo (Eds.), The Changing Family: Family Forms and Family Law (Oxford: Hart Publishing, 1998).
58. See S. Poulter, The Changing Family: Family Forms and Family Law n.7, at pp.16–17 and the sources there cited.
59. As to the existence and extent of any doubt, see S. Poulter, The Changing Family: Family Forms and Family Law n.7, at p.18.
60. Alhaji Mohamed v. Knoll, The Changing Family: Family Forms and Family Law n.5. Although the marriage of the 13-year-old in this case was recognised, it is clear from Parker CJ 's judgment that the court reserved the right in other cases to refuse recognition.
61. The Changing Family: Family Forms and Family Law n.5.
62. R. Deech, “Immigrants and Family Law” [1973] New Law Journal 110, at 111.
63. For further recognition of the concerns associated with the instability of child-marriages, see S. Poulter, New Law Journal n.7, at p.17
64. A. J. E. Jaffey, New Law Journal n.4, at 45.
65. See S. Poulter, New Law Journal.
66. There is little point in fixing an age-based threshold for child marriages where the avowed reason for so doing is to protect the vulnerabilities of the child that stem from immaturity. The better approach is to set a limit based upon the child's stage of development. It is implicit from his judgment in Knoll (New Law Journal n.5, at 15–16) that Parker CI was sympathetic to this approach.
67. Cf. I.G.F. Karsten, “Child Marriages” (1969) 32 Modern Law Review 212, esp. at 215–216 (where a minimum age approach is preferred).
68. It is just such dangers that prompted Mrs Victoria Gillick into litigation in the landmark case of Gillick v. West Norfolk and Wisbech AHA [1986] A.C 112.
69. J. Eekelaar, “The Emergence of Children's Rights” (1986) 6 Oxford Journal of Legal Studies 161.
70. The basic interest was seen in terms of “(g]eneral physical, emotional and intellectual care”: Oxford Journal of Legal Studies, at 170.
71. The developmental interest involves allowing a child's natural capacities to develop to full advantage in such a way “as to minimize the degree to which they enter adult life affected by avoidable prejudices incurred during childhood”: Oxford Journal of Legal Studies
72. This is “the freedom to choose his own lifestyle and to enter social relations according to his own inclinations uncontrolled by the authority of the adult world”: Oxford Journal of Legal Studies, at 171.
73. Though a brief account of how this is achievable is provided in “The Emergence of Children's Rights” (Oxford Journal of Legal Studies n.60, at 171)
74. a much fuller account is provided in J. Eckclaar, “The Interests of the Child and the Child's Wishes: The Role of Dynamic Sclf-Dctcrminism” in P. Alston (Ed.), The Best Interests of the Child (Oxford: Clarendon Press. 1994) p.42, csp. pp.53–57.
75. See also M. Freeman, The Rights and Wrongs of Children (London: Frances Pinter, 1983) p.57.
76. For an account of the problems associated with relativism, see M. Freeman, The Rights and Wrongs of Children n.48.
77. As Raz explains: “A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value”: sec J. Raz, The Rights and Wrongs of Children n.47, at p.122.
78. R. Warner, “Excluding Reasons: Impossible Comparisons and the Law” (1995) 15 Oxford Journal of Legal Studies 431, at 433.
79. S. Altman, “Should Child Custody Rules be Fair?” (1996–1997) 35 Journal of Family Law 325, at 353.
80. J. Raz, Journal of Family Law n.47, at p.399.
81. Sec G. Van Bueren,“The United Nations Convention on the Rights ofthe Child: The Necessity of Incorporation into United Kingdom Law” [1992] Family Law 373.
82. See the text associated with n.11, Family Law, as well as the literature referenced therein.
83. See n.34, Family Law.