FURTHER OBSERVATIONS OF THE GOVERNMENT OF THE UNITED KINGDOM

ON THE MERITS OF

APPLICATION No. 22985/93, INTRODUCED BY KRISTINA SHEFFIELD

APPLICATION No. 23390/94, INTRODUCED BY RACHEL HORSHAM

 

 

 

 

1. At the oral hearing before the Commission on Friday 19 January 1996, Professor Gooren addressed the Commission in relation to scientific developments reported in Nature on 2 November 1995. Research conducted by Professor Gooren and others suggests that the brains of male-to-female transsexuals differ from those of other men and that therefore gender identity may be caused by the brain.

 

 

2. The United Kingdom wishes to draw to the attention of the Commission that in the same issue of Nature, the editors published an independent commentary by S. Marc Breedlove on the research. A copy of that commentary is contained in Annex A to these Further Observations.

 

 

3. The United Kingdom draws attention to the points made in that commentary which explain that the research is only a preliminary finding which leaves open many important questions concerning whether the brain causes transsexualism:

(1) In the first paragraph, the commentary states that "the difficulties inherent in studying the diverse sexual behaviour of humans ensures that this will be far from the final word on the subject".

 

 

1

(2) In the fourth paragraph, the commentary notes that it remains uncertain whether "some other feature, more mundane than the fascinating and psychologically complex phenomenon of transsexuality, is in fact responsible for the correlation" between brain size and transsexuality. The commentary suggests that the size of the brain may have been affected by the oestrogen treatment of transsexuals, the drugs administered and the other medical treatment of them.

 

 

(3) In the seventh paragraph, the commentary notes that it also remains uncertain whether the brain caused the transsexualism (which would then have a physiological cause) , or whether the fact of transsexualism, and the psychological consequences of it, affected the brain. As the commentary observes (in the seventh paragraph) this "represents the chicken-or-the-egg dilemma endemic to brain correlates of behaviour" The commentary points out (in the eighth paragraph) that "three decades of neuroscience research have made it clear that experience can dramatically alter the structure and function of the brain'1. Therefore, in the penultimate paragraph, the commentary explains that:

"At present these brain regions can only be measured post mortem. Until technology enables us to measure them repeatedly in the same person at different ages (before and after puberty, for example) , there can be no definitive answer as to whether these regions direct-psychological sexual differentiation or are themselves directed by that process".

 

2

4. The United Kingdom therefore submits that the research conducted by Professor Gooren and others is very far from resolving the difficult scientific issues posed by transsexualism. Those scientific difficulties were recognised by the Court in B v France (at paragraph 48) and were acknowledged at the 23rd Council of Europe Colloquy on European Law. In any event, as the Court stated in B V France, the legal complexities posed by transsexualism remain, and "there is as yet no sufficiently broad consensus between the Member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossev judgments

March 1996 Susan J Dickson

(Agent for the Government

of the United Kingdom)

FURTHER OBSERVATIONS OF THE GOVERNMENT OF THE UNITED KINGDOM

ON THE MERITS OF

 

APPLICATION No. 23390/94, INTRODUCED BY RACHEL HORSHAM

 

1. The Commission has invited further written representations on "whether a marriage contracted under Dutch law by the applicant would be recognised in English law".

 

 

2. At the hearing on 19 January 1996, the United Kingdom submitted (in response to a question on this topic) that this issue raises difficult questions of domestic law in relation to the conflict of laws, and that domestic remedies should be exhausted by the Applicant if she is concerned about whether English law would recognise a Dutch marriage by her.

 

 

3. As Mr McFarlane submitted on behalf of the Applicant at the hearing, the basic rule of English law is stated in Hyde v Hyde (1866) 1 LR P & D 130, 133 : marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others". Section 11(c) of the Matrimonial Causes Act 1973 states that a marriage will be void if "the parties are not respectively male and female".

 

 

4. There is no doubt that if English law governs the validity of a marriage between the Applicant and a male, it would not be a valid marriage, because the Applicant is treated by English law as being a man.

However, the complexity arises because of the rules of private international law, as applied by English courts, which may have the effect that English rules do not apply when an English court assesses the validity of a marriage contracted by the Applicant in the Netherlands. This issue of private international law is not addressed by Bromley and Lowe Familv Law, the textbook to which Mr McFarlane referred during the hearing. Annex A to these Further Written observations contains the relevant pages in Bromley and Lowe. The discussion at p.33 of capacity to marry begins by explaining that it is considering the question in relation to "a person domiciled in England". Similarly, at p.81, under "lack of capacity", Bromley and Lower discuss the matter on the assumption : "If the relevant law is English". The issue of private international law is whether the relevant law by reference to which the issue of the validity of the marriage would be assessed Ls English. That issue is not discussed by Bromley and Lower because it is a textbook on family law, not a textbook concerned with private international law.

 

 

The leading textbook on private international law in the United Kingdom (and indeed one of the leading textbooks in the world on the subject) is Dicey and Morris on the conflict of Laws. Annex B to these Further Observations contains the relevant pages stating the principles which are applied by English law in considering capacity to marry. Dicey and Morris state, at Rule 70, pp. 663-664

"As a general rule, capacity to marry is governed by the law of each party's antenuptial domicile".

 

 

A number of exceptions are then recognised.

 

 

7. Therefore, subject to the possible application of the exceptions, if the Applicant is domiciled in the Netherlands, and if she were to marry a man in the Netherlands, and if the Netherlands were to recognise the validity of that marriage, then it would be open to the Applicant to contend that English law should recognise the validity of that marriage because of the rule that "capacity to marry is governed by the law of each party's antenuptial domicile"

 

 

8. The English court would need to consider whether it would be contrary to English public policy to recognise such a marriage. The public policy exception is discussed by Dicey and Morris in Exception 5, at pp. 681-682, by reference to the decision in Cheni v Cheni [1965] P 67 (which Mr McFarlane mentioned in his oral submissions). But, as Dicey and Morris note, this exception is of uncertain application in general, and there is certainly no authority which decides whether it would conflict with English public policy to recognise a marriage between a post-operative transsexual and a person of the same sex as that transsexual had prior to the gender reassignment surgery, when the transsexual is domiciled in a Member State of the Council of Europe (and the European Union)

in which the marriage was celebrated and when that country recognises the validity of the marriage. The fact that English law does not itself allow the Applicant to marry a man in England does not determine the issue, because private international law is concerned with recognising that the rules of the relevant foreign law should apply case where the individuals are domiciled abroad other than in exceptional circumstances.

 

 

The attention of the Commission is drawn to an article Kenneth McK. Norrie (Reader in Law at the University of Strathclyde, Glasgow) entitled "Reproductive Technology Transsexualism and Homosexuality: New Problems for International Private Law", published in Volume 43 of the International and Comparative Law Quarterly at p. 757. Annex C to these Further Written Observations contains t pages of the article in which it discusses legal recognition in England of transsexual marriages conducted abroad. The articles states (at p. 768)

 

"If the question is simply one of the capacity of the people to marry each other (i.e. does X, who used to be a man, have capacity to marry Y, who is and always has been a man?), the answer is (relatively) easy. Capacity to marry is determined by the ante-nuptial domicile of both parties to the marriage. If both are domiciled in Germany and they have capacity to marry each other under German law then a marriage between the two should be recognised elsewhere, certainly if the marriage takes place in Germany".

 

The article then proceeds to consider what it describes the "more difficult" question of whether the marriage can take place in England if the domicile of the parties is German. The present case does not involve such a

4

complication, because the Applicant is contemplating a marriage in the Netherlands.

 

 

10. The United Kingdom submits that if the Applicant is domiciled in the Netherlands, and if she validly contracts a marriage to a man in the Netherlands, there would be a strong argument for contending that English law recognises the validity of such a marriage. The Commission cannot properly decide how an English court would decide the difficult and novel points of English private international law which such a case would raise, especially as the Applicant would have at least a strongly arguable case for contending that her marriage in the Netherlands should be recognised by English law. The Commission should require the Applicant to exhaust her domestic remedies to establish whether English law would recognise the validity of a marriage celebrated by her in the Netherlands, by seeking an appropriate declaration in the English courts.

20 March 1996 Susan J Dickson

(Agent for the Government

of the United Kingdom)

5

 

 

Family Law

 

 

Eighth Edition

 

 

P M Bromley

M A (Oxon), LL M (Manchester)

of the Middle Temple. Barrister.

Emeritus Professor of English Law in the University of Manchester

 

N V Lowe

LL B (Sheffield)

of the Inner Temple. Barrister;

Professor of Law al Cardiff Law School. University of Wales

M1DDLE

TEMPLE

LIBRARY

 

 

Butterworths

London, Dublin, Edinburgh

1992

Capacity to marry 33

presence of an episcopally ordained clergyman. It is doubtful whether this requirement ever applied outside England and Ireland; in the type of case we are considering it certainly does not apply if compliance would be impossible, difficult or even inconvenient. Thus in Penhas v' Tan Soo Eng10 the Privy Council held that 'in a country such as Singapore, where priests are few and there is no true parochial system, where the vast majority are not Christians, it is neither convenient nor necessary that a marriage between a Jew and a non-Christian Chinese should be contracted in the presence of an episcopally ordained clergyman.

Characterisation

It is sometimes difficult to decide whether a particular rule should be characterised as relating to capacity or to formalities. The problem arose in Ogden v Ogden. A domiciled Frenchman aged 19, married in England a woman domiciled in this country without obtaining his parents' consent. By French law this meant that he lacked capacity to contract a valid marriage, but by English law parental consent is a question of formality and lack of it will not affect the validity; it therefore became vital to decide which law should govern the question. The Court of Appeal classified parental consent as a part at the ceremony (thus holding the marriage to be valid) apparently on the principle that English law would apply, the lex fori to characterise a condition in the case of a marriage celebrated in England. It is submitted that the case was correctly decided on the ground that we should ignore the effect of lack of parental consent on the husband's capacity as he married a woman domiciled in England in this country..13 but in any event to fall back on the lex fori to characterise the matter is quite indefensible. In order to avoid a limping marriage, one should ask first of all what the relevant law relating to capacity is by the parties' lex domicilii: if this regards lack of parental consent as invalidating the marriage, we must accept and apply the rule. One must then ask what the relevant rule relating to formalities is by the lex loci. In the Ogden V Ogden type of case, where consent is relevant by both systems, the marriage will be void if lack of consent deprives either party of capacity by his lex domicilii or if it renders the ceremony a nullity by the lex loci celebrattionis.

We must now consider in greater detail the relevant English municipal law.

 

 

D. Capacity to marry

 

In order that a person domiciled in England should have capacity to contract a valid marriage, the following conditions must be satisfied:

(a) one party must be male and the other female; (b) neither party must be already married;

Post, p 39.

'[1953] AC 304, PC, following Wolfenden V Wolfenden [1946] P61, [1945] 2 All ER 539.

"See Law Corn WP No 89 (Choice of Law Rules in Marriage) paras 4. 1 - 4.10; Morris Conflict Of Laws (3rd Edn) pp 151-153.

12 (1908] P46, CA, followed in Lodge v Lodge (1963) 107 Sol Jo 437.

See ante, p 29.

34. Chapter 2 Marriage

 

(c) both parties must be over the age of 16: and

(d) the parties must not be related within the prohibited degrees of con. sanguinity or affinity.

Sex

.A new problem, arising out of operations to effect a so-called change of sex, had to be considered by Ormrod J in Corbett v Corbett." The petitioner in this case was a man; before the marriage the respondent had undergone a surgical operation for the removal of 'her' male genital organs and the provision of artificial female organs. After dealing at length with the medical evidence the learned judge (who was also a qualified medical practitioner') came to the conclusion that a person's biological sex is fixed at birth (at the latest) and cannot subsequently be changed by artificial means. That being so, the respondent, who was male at birth, was not a woman and the marriage was therefore void.

In this case the respondent was to be regarded as male by three independent biological criteria: chromosomal, gonadal and genital. There are persons, however, who are male by one test and female by another. Ormrod J deliberately left open the question of capacity to marry in such cases but he was inclined to give greater weight to the appearance of the genital organs. It is at least arguable that such persons are neither male nor female and consequently are legally incapable of marrying anyone of either sex.

It has been suggested that from a social and domestic point of view the psychological gender of a transsexual such as the respondent in Corbett v Corbett (that is the sex to which the individual feels that he or she belongs) is of greater importance than biological sex.'6 Accordingly, as the parties to such a union regard themselves as belonging to opposite sexes (a view presumably shared by others), a marriage between them should be valid, at least provided that the transsexual party has undergone surgery of the type described. The view has also been expressed that section 11(c) of the Matrimonial Causes Act 1973, which requires the parties to be respectively male and female, would now permit a court to take gender, rather than biological sex, into account.'7 It is even doubtful, however, whether this result could or should be achieved in this oblique way. The law relating to consummation

14. A further prohibition is to be found in the Royal Marriages Act 1772, which was passed to prevent the contracting of highly undesirable marriages by the younger brothers of King George 111. It provides that no descendant of King George II (other than the issue of princesses who have married into foreign families) may marry without the previous consent of the Sovereign formally granted under the great seal and declared in Council. Any marriage coming within the Act, consent to which has not been obtained, will be void. but if the descendant in question is over the age of 25 and gives twelve months' notice of the intended marriage to the Privy Council, it may hr validly contracted unless both Houses of Parliament have in the meantime expressly declared their disapprobation of it. For a criticism of the Act and a discussion of how far (if at all) it has any force today, see Farran The Royal Marriages Act

1772 14 MLR 53.

15. {1971} P 83, {1970} 2 All ER 33, applied in R v Tan [1983] QB 1053. [1983] 2 All ER 12, CA (person born male remains a man for the purposes of the Sexual Offences Acts notwithstanding a similar 'sex change operation')

16. See Kennedy Transsexualism and Single Sex Marriage 2 Anglo-American Law Review 112. Armstrong and Walton Transsexuals and the Low 140 New LJ 384

17. See Poulter The Definition of Marriage in English Low 42 MLR 409. 42l - 25. S 11 of the Matrimonial Causes Act 1973 re-enacts S 1 of the Nullity of Marriage Act 1971, which received the royal assent 17 months after judgement was delivered in Corbett v Corbett. See further post. p81

Capacity to marry 35

 

emphasises that English law still regards marriage as a normal heterosexual relationship18 and it is by no means certain that public opinion would support the change advocated. Although transsexuals can obviously be distinguished from other types of 'homosexuals, the recognition of any form of homosexual union would mark such a profound departure from the traditional approach of English law that it should be brought about only by an unambiguously worded statute

 

Monogamy

As a result of the English view of marriage as a monogamous union, neither party may contract a valid marriage whilst he or she is already married to someone else. If a person has already contracted one marriage, he cannot contract another until the first spouse dies or the first marriage is annulled or dissolved.' It follows that a mistaken belief that the first marriage has been terminated, for example, by the death of the spouse, is immaterial: what is relevant is whether it has in fact been terminated. Consequently the second marriage may be void even though no prosecution for bigamy will lie in respect of it.

 

Age

Both by canon law and at common law a valid marriage could be contracted only if both parties had reached the legal age of puberty. viz 14 in the case of a boy and 12 in the case of a girl. If either party was under this age when the marriage was contracted, it could be avoided by either of them when that party reached the age of puberty, but if the marriage was ratified (as it would impliedly be by continued cohabitation), it became irrevocably binding.20

It is somewhat surprising that this remained the law until well into the present century. In the words of Pearce J.

'According to modern thought it is considered socially and morally wrong that

persons of an age, at which we now believe them to be immature and provide for their education, should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of childbirth. Child marriages by common consent

are believed to be bad for the participants and bad for the institution of marriage.'

This change of thought led to the passing of the Age of Marriage Act in 1929. Section 1 (now re-enacted in section 2 of the Marriage Act 1949) effected two changes in the law. First, it was enacted that a valid marriage could not be contracted unless both parties had reached the age of 16, and secondly any marriage to which either party was under this age was made void and not voidable as before.

The provision that both parties must be over the age of 16 is important when the party under that age is not domiciled in England and has capacity

18. See Post, pp 8~90 and of the judgement of Ormrod J in Corbett v Corbett (1971) P 83, 106,

[1970] 2 All ER 33, 48. The principle has been upheld by the European Court of Human

Rights: Rees v United Kingdom (1986) 9 EHRR 56; Cassey v United Kingdom [1991] 2 FLR

492. See Naldi 137 New LJ 129.

19. But this does not apply if the first marriage was void: post, p 75.

20. Co Litt 79; Blacltstone Commentaries, i, 436.

1. Pugh v Pugh [1951] P 482, 492, [1951] 2 All ER 680, 687. See further Law Corn No 33 (Nullity of Marriage), paras 16 - 20; Report of the Latey Committee on the Age of Majority, 1967, Cmnd 3342, paras 166 - 177.

 

80. Chapter 3 void and voidable marriages.

 

B. Void marriages

1. INTRODUCTORY

We have already seen that a void marriage is strictly speaking a contradiction in terms: to speak of a void marriage is merely a compendious way of saying that, although the parties have been through a ceremony of marriage they have never acquired the status of husband and wife owing to the presence of some impediment. If they have never been through a ceremony at all, however, their union cannot even be termed a void marriage. This raises exceptionally difficult problem of what kind of ceremony will be sufficient to enable the court to grant a decree of nullity. The matter may be of considerable practical importance because in certain circumstances the issue of a void marriage can be legitimate and only if the court pronounces a decree does it have power to make orders relating to financial provision for the spouses and the adjustment of their rights in property.

There is no reported case in which the problem has arisen in this form. Obviously a ceremony can not produce even a void marriage if it is intended to be no more than a charade and is seen to be such by the parties and spectators, for example the representation of a wedding on the stage. On the other hand, even though the ceremony is formally valid, the marriage will be void if both parties realise that it will not confer on them the status of husband and wife because, for example, one of them is already married. Two difficult cases come between these extremes. The first is that of the ceremony recognised by the law as capable of constituting a marriage, which fails to do so because of a formal defect known to both parties. As the Marriage Act 1949 expressly' provides that a marriage shall be void in such circumstances, the implication is that it can be the subject of nullity' proceedings. The other difficult case is that of the ceremony incapable of constituting a marriage in any circumstances which one or both of the parties nevertheless believe to be valid. This may well be of considerable importance because of the risk that members of immigrant communities may go through religious ceremonies in private houses under the misapprehension that they are thereby contracting a legally recognised marriage. There is some indication that this will not be recognised as even a void marriage. Quashing a conviction for knowingly and wilfully' solemnizing a marriage in precisely such circumstances, the Court of Criminal Appeal said: 18.

'What, in our judgement, was contemplated by [the Marriage Act) …. in dealing with marriage and its solemnisation and that to which alone it applies, was the performing in England of a ceremony in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage'.

It is, however, highly undesirable to place a construction on the Act which could leave one party to such a ceremony wholly without means of obtaining financial support from the other. Earlier the Court had said: It does not seem to the court that the provisions of the Act have any relevance or application to a ceremony which is not and does not purport to be a marriage.

17. If, unbeknown to the parties the first spouse was in fact dead, there seems little doubt that the ceremony would create a valid marriage.

18. R v Bhom [1966] 1 QB 159. 169. [1965] 3 All ER 124.129. CCA. See 81 LQR 474.

Void marriages. 81

 

of the Kind allowed by English domestic law. ' This statement was sufficiently wide to cover the point in issue in the case, and it is submitted that it should determine whether the ceremony was such as to enable the court to pronounce a decree of nullity and to grant ancillary relief. The test should be did either or both of the parties honestly believe that they were contracting a legally valid marriage? Only if both knew that the ceremony could not make them husband and wife by English law should they be in the same position as a couple who cohabit without going through any ceremony at all.

2 GROUNDS ON WHICH A MARRIAGE WILL BF VOID

Section II of the Matrimonial Causes Act I 973"" expressly provides that a marriage celebrated after 31St July' 1971 (when the Nullity of Marriage Act l97l came into force shall be void only on the grounds there set out. These are all grounds on which a marriage celebrated before that date would be void. In addition, it is probable that lack of consent on the part of one of the parties formerly made a marriage void, in which case a marriage celebrated before 1st August 1971, affected by lack of consent, will remain void.

The present grounds can be divided into two: those relating to capacity, and those relating to formal requirements.

 

Lack of capacity

Obviously lack of capacity' to marry will ipso facto make the marriage void. This must be determined in accordance with the principles already discussed.

If the relevant law is English, the marriage will be void on the following grounds:

(a) That the parties are related within the prohibited degrees of consanguinity or, if the conditions set out in the Marriage Act 1949 are not observed, within the prohibited degrees of affinity.

(b) That either of them is under the age of 16.

(c) That either of them is already married.

(d) That they are not respectively male and female. This provision is designed to cover the case of a party who has previously undergone an operation to achieve an alleged change of sex or about whose sex there is genuine doubt.4 The wording of the Act is sufficiently wide to enable a petition for nullity to be brought where each party knows that both are of the same sex but leads all concerned with the solemnization of the marriage to believe that one of them is of the opposite sex. The point is probably academic but it is at least questionable whether the court should have power in nullity.

19. At l68 and 129, respectively (Italics supplied.)

20. Re-enacting the Nullity of Marriage Act 1971.s I, as amended by the Matrimonial Proceedings

(Polygamous Marriages) Act 1972, s 4.

1. See further post, pp 90 - 95. It is also possible that a marriage celebrated before 1st August 1971 was void if one of the parties was divorced and the time for appealing against the decree absolute had not expired: see Dryden v Dryden [1973] Fam 217, 239, [1973] 3 All ER 526,542 Matrimonial Causes Act 1973,s 14(1). See ante, pp 26 - 3l. A marriage may also be void under the Royal Marriages Act 1772: ibid, Sch 1, para 6. See ante, p344, n 14

See ante, pp 36 - 38.

See ante, pp 34 - 35.

82 Chapter 3 Void and voidable marriages

proceedings to order financial relief for the benefit of a party to an overtly homosexual relationship. 5.

(e) That either party to a polygamous marriage celebrated abroad was at the time of the ceremony domiciled in England. This is subject to the overriding principle that a foreign rule of law must be applied instead of the English rule when the conflict of laws so requires.6. Consequently, if the proper law to apply is that of the proposed matrimonial home, the marriage may still be valid notwithstanding that one of the parties is domiciled in this country.7

 

Formal defects

Whether failure to comply with the formal requirements relating to the marriage ceremony will make the marriage void must be determined by reference to the lex loci celebrationis.5

If the marriage is solemnized in England, it is not every defect in the formalities laid down in the Marriage Act that will render the ceremony a nullity. Whilst public policy requires that these formalities should be strictly observed, the consequences of avoiding any marriage where there was some technical defect, however slight, would be socially even more undesirable. English law has effected a compromise between these conflicting demands of public policy with the result that some formal defects will not render the marriage void at all, whilst in the case of the rest the marriage will be void only if both parties contracted it with knowledge of the defect. In other words, it is impossible for a person in England innocently to contract a marriage which is void because of a formal defect The real sanction is afforded by the criminal law, for if a party knowingly fails to comply with the Marriage Act, he will frequently have to make a false oath or declaration which is punishable under the Perjury Act of 191 l. 9. This should adequately safeguard the marriage law without prejudicing the position of the innocent spouse.

 

Defects which will never invalidate a marriage

The Marriage Act 1949 specifically enacts that a marriage shall not be rendered void on any of the following grounds: 10.

(a) That any of the statutory residence requirements was not fulfilled (whether for the purpose of the publication of banns or of obtaining a common licence or superintendent registrar's certificate);

(b) That the necessary consents had not been given in the case of the

5. Cf Law Corn No 33, paras 30 - 32.

6. Matrimonial Causes Act 1973, s 14(1).

7. see Radwan v Radwan (No 2) [1973] Fam 35, [1972] 3 All ER 1026, ante, pp 2 - 28. 8. See ante, pp 31-33.

9. S 3. If a material alteration is made to any document (e.g. the date on a superintendent registrar's certificate). this will be punishable under the Forgery Act 1913. See also the Marriage Act 1949, s 75, and the Marriage (Registrar General's Licence) Act 1970, 5 16 punishment of offences relating to the solemnization of marriages).

10. Ss 24 and 48. See also 547(3) (autborisation of marriage according to the usages of the Sociely of Friends), s71 (evidence of marriages in naval, military and air force chapels) and 5 72 (usual place of worship), and the Marriage (Registrar General's Licence) Act 1970, s 12 (marriages solernnized on the Registrar General's licence).

DI CEY AND MORRIS

ON

THE CONFLICT OF LAWS

TWELFTH EDITION

 

UNDER THE GENERAL ED[TORSHIP OF

LAWRENCE COLLINS

M. A.. LL. B. LL. M.

 

 

 

WITH

SPECIALIST EDITORS

 

VOLUME 2

 

LONDON

SWEET & MAXWELL

1993

Marriage RULE 69

Polish military camp in the United States Zone of Germany. They go through a ceremony of marriage at the camp in June 1945. The ceremony is performed in the open air by a Polish Roman Catholic priest. By German law there is no marriage because there is no civil ceremony. There is no insuperable difficulty in complying with the German law. The marriage is a valid English corrirnon law marriage.79

(4) FOREIGN MARRIAGE ACT 1892

12. H. a British subject. Marries W. a Bulgarian minor. at the British Consulate in Prague in 1948. The marriage is hurriedly performed in the presence of the British Ambassador and Vice - Consul by a minister of the Church of Scotland who is not episcopically ordained. The marriage is invalid by Czech law and there is a failure to comply with sections 3. 4. 7, and 9 of the Foreign Marriage Act 1892, which deal respectively with notice of intended marriage, the filing and entering of such notice, parental consent, the taking of an oath and the registration of the marriage. But since all the requirements of Section 8 are complied with. the marriage is valid."

(5) MARRIAGE5 INVALID

13. H. a Frenchman. marries W. a Commonwealth citizen domiciled in England. in the chapel of the French embassy in London., without complying with the requirements of English law as to banns. Licence, etc Semble., there is no marriage.

14. H and W. both domiciled in Quebec. are married in France by a Roman Catholic priest without civil ceremony. By French law, a marriage in France without civil ceremonv is invalid. The marriage is invalid.

15. H. domiciled in Poland. who is serving with the Polish armed forces in Italy. goes through a ceremony of marriage with W. an Italian national domiciled in Italy The ceremony is performed by a Polish Roman Catholic priest in the chapel of a Polish civilian refugee camp in Italy in February 1946. H travelled some distance to attend the ceremony. The marriage is invalid by Italian law for the same reasons as in Illustration 10 above. The marriage is invalid:

the parties deliberately submitted themselves to Italian law and the common law is. therefore. inapplicable.

 

 

2. CAPACITY

RULE 7 - As a general rule, capacity to marry is governed by the law of each party's antenuptial domicile.

(1) Subject to Exceptions I and 2 below, a marriage is valid as regards capacity when each of the parties has, according to the law of his or her antenuptial domicile, the capacity to marry the other.5

 

79. Preston v. Preston [1963] P.141 .411 (C.A.).

80.Collet v Collet [1968] P.482.

81. Cf. Pertreis v Tondear(1790) 1 Hagg. Con. 136.

82. Berthiaume v Dastous [1930] A .C. 79 (P.C.).

83. Lazarewicz v Lazarewicz [1962] P.171.

84. The wording of this Rule, is substantially its present form. was approved by the Divisional

Court in R. v. Brentwood Marriage Registrar [1968] 2 Q.B. 956,. 968; by Sir Jocelyn Simon

P. in Padolecchia v. Padolecchia [1968] P.314. 336. and in Szechter v. Szechter [1971] P.

286, 295. For Scotland. see Marriage (Scotland) Act 1977.55.1 and 2. discussed by Clive.

1977 S.L.T. 225. For Australia, see Marriage Act 1961. s. 10: for New Zealand. see Marriage Act 1955. S. 3(1).

85. Re Bozzelli's Settlement [1902] 1 Ch. 751; Re Green (1909) 25 T.L.R. 222: Cheni v. Cheni [1965] P.85; Davis v. Adair [1895] 1I. R. 379; Schwebel v Ungar (1963) 42 D.L. R. (2d) 622 (Ont. C.A.); (1964) 48 D.L.R. (2d) 644 (Sup.Ct.Can.).

 

663

Family Law

(2) Subject to Exceptions 3, 4 and 5 below, a marriage is (normally) invalid when either of the parties lacks, according to the law of his or her antenuptial domicile, the capacity to marry the other. 86.

 

COMMMENT

(1) In general. Until the middle of the nineteenth century. English courts drew no distinction between the formal validity of a marriage, and the capacity of the parties to marry, and held that in both respects the validity of the marriage depended on the lex loci celebrationis. From 1858 onwards, however, the courts began to draw the distinction, and held that capacity to marry depended on compliance with the law of the domicile of each of the parties to the marriage. Nevertheless, both the nationality, 87, and intended matrimonial residence, 88, of the parties were at times also treated as material factors.

In 1861, in Brook V Brook, the House of Lords held that a marriage celebrated in Denmark, and valid by Danish law, was void on the ground that the parties were within the prohibited degrees of affinity by English law, their common antenuptial domicile being in England. In 1877 in Sottomayor v De Barros, 90, the Court of Appeal held that a marriage celebrated in England, and valid by English law, was void on the ground that the parties were within the prohibited degrees of relationship by the law of Portugal, their common antenuptial domicile. These two cases are generally regarded as laying down a general principle that capacity to marry is governed by the law of the parties antenuptial domicile, though the later one has not escaped judicial criticism.91

The manner in which the law on this topic has developed has led to two somewhat illogical consequences.

In the first place as we have seen,92 the consents of and notices to parents or guardians, rendered necessary by many systems of law for the validity of a marriage, and a persons inability under the law of his domicile to marry without such consent, have not been treated as affecting his capacity to marry.

Secondly an anomalous exception to clause (2) of our Rule was, as we shall see, established by the decision of Sir James Hannen P. on the second hearing of the case of Sotomayor v De Barros.93. Although, it may have

 

86. Brook v. Brook (1858)3 Sm. & G. 481: (1861)9 H.L.C. 193: Mette v Mette (1859)1 Sw. &

Tr. 416: Sottomayor v Dc Barros (No.1) (1877) 3. P. D. 1 (C.A.): Re Dr Wilton [19OO] 2

Ch. 481: Re Paine (1940) Ch. 46: Pugh v Pugh (1951] P. 482: Dejardin v Dejardin (1932)2

W.W. R. 237 (Man).

87 Mette v Mette (1859) 1 Sw & Tr. 416.

88 Brook V. Brook (1861) 9 H.LC. 193. 207. 212 - 213.

90 (1861) 9 H.L.C. 193.

91 (1877) 3 P. D. 1.

91 Sottomayor v De Barros (No.2) (1879) 5 P. D. 94.100: Ogden V. Ogden [1908] P. 46. 73 - 76

(C.A.).

92 Ante. p p 644 - 646.

93 (1879) 5 P. D. 94: see Exception 3.

664

Marriage RULE 70

been justified by some remarks of the Court of Appeal on the previous hearing of the case.94 the decision was largely based on the judgements in earlier cases which stressed the predominance of the lex loci celebrationis in all matters affecting the validity of marriage. The learned judge apparently failed to appreciate the significance of the first decision, which differentiated questions of capacity from those of formal validity, and his judgement in favour of the validity of the marriage celebrated in England between parties one of whom was domiciled there, and the other of whom was incapable of marrying him by the law of her domicile, gives a national bias to English private international law which might be regarded as unfortunate.

In Ogden V. Ogden, 95, the Court of Appeal held that a marriage celebrated in England, and valid by English domestic law, between a woman domiciled in England and a man' domiciled in France was valid, although the man did not have the consent of his parents as required by French law. It is possible to collect at least three rationes decidendi from the judgement of the court, and they may be stated as follows: (I) Capacity to marry is governed by the lex loci celebrationis and not by the law of the parties domicile.96 This, of course, is inconsistent with the decisions of the Court of Appeal in Sottomayor v De Barros97 and of the House of Lords in Brook v Brook, 98 (2) A requirement of foreign law that a person cannot marry without the consent of his parents is a matter of form, and therefore cannot invalidate a marriage celebrated in England. 99. This aspect of the matter has already been discussed, 1, (3) A marriage celebrated in England between a person domiciled in England and a person domiciled abroad is not invalidated by any incapacity which, though existing under the foreign law, does not exist in English law.2 This is in accordance with the Exception to the present Rule which is referred to above.

Subject to the above anomalies, the rule that capacity to marry depends upon the law of the antenuptial domicile of each of the parties is largely borne out by the authorities. It was, however, severely criticised by Dr. Cheshire in earlier editions of his book. In his view the basic presumption was that capacity to marry is governed by the law of the husband's domicile at the time of the marriage, but this presumption would be rebutted if it could be inferred that the parties at the time of the marriage intended to establish their home in a certain country and that they did in fact establish it there within a reasonable time.3

 

 

94 (1877) 3 PD. 1.6 - 7.

95 [1908] P. 46 (C.A.).

96 At pp. 58 - 62.

97 (1877) 3 P. D. I (C.A.).

98 (1861) 9 H. L.C. 193.

99 At p. p. 57,75.

1. Ante, pp. 644 - 646.

2. At pp. 75 - 77.

3. Cheshire and North, p. .587. Cheshire's views have to a large extent been abandoned in more recent editions edited by Dr. North and by Professor Fawcett: ibid. pp. 590 - 595.

 

665

Marriage RULE 70

4. Marriage in Italy in 1880 between H and W, both Italian subjects domiciled in Italy. The marriage is valid by Italian law, but void by English domestic law because H is the brother of W's deceased husband. The marriage is valid.72

5. Marriage in England between H and W. both Portuguese subjects domiciled in Portugal. After the marriage the parties live together in England for six years. The marriage is valid by English domestic law, but void by Portuguese law because H and W are first cousins. The marriage is invalid.73

6. Marriage in Germany between H and W. both domiciled in England and professing the

Jewish faith. The marriage is valid by German and Jewish law, but void by English domestic

law, because W is H's niece. The marriage is invalid.74

7. Marriage in Egypt in 1924 between H and W, Sephardic Jews domiciled in Egypt. H is

W's uncle, by Egyptian law the validity of the marriage is determined by the religious law of

the parties. By Jewish law a marriage between uncle and niece is valid. By English domestic

law it is void. The marriage is valid. 75.

(8) LACK OF AGE

A marriage in Austria between H, a British officer domiciled in England but stationed in Austria and W. domiciled in Hungary. Four years later the parties come to England and live together for a few weeks. The marriage is valid by Austrian and Hungarian law, but void by English domestic law because at the date of the marriage W was under the age of Sixteen. The marriage is invalid. 76.

9. The circumstances are the same as in Illustration 8, except that H is domiciled in Scotland. The marriage is valid in Scotland 77, and (semble) also in England.

10. Marriage in Nigeria between H. domiciled in Nigeria. and W, domiciled in Nigeria and aged thirteen. The marriage is valid by Nigerian law but void by English domestic law. The marriage is valid.78

 

Exception 1-A marriage is not valid if either of the parties, being a descendant of George II, marries in contravention of the Royal Marriages Act

1772.

COMMENT

The Royal Marriages Act enacts in substance that no descendant of George II (other than the issue of princesses marrying into foreign families) shall be capable of contracting matrimony without the previous consent of the Sovereign signified under the Great Seal and declared in Council, and that every marriage of any such descendant without such consent shall be null and void. 79.

The Act appears to have been applied in one reported case only, the Sus- 72.Re Bozzelli's Settlement [1902]1 Ch. 751. The marriage would now be valid by English

domestic law under the Marriage (Enabling) Act 1960, re-enacting the Deceased Brother's Widow's Marriage Act 1921.

73 Sotomayor v Dc Barros (No.1) (1877) 3 P. D. 1(C..A.).

74 Re Dc Wilton [1900] 2 Ch. 481.

73 Cheni v Cheni [l965] P.85.

76 Pugh v Pugh [1951] P. 482.

77 Marriage (Scotland) Act 1977.s.1(1).

78 Mohamed v Knott [1969] 1 Q. B. I; discussed by Karsten (1969) 32 M.L.R. 212.

79 s.1. S.2 enacts that any such descendant may, if above the age of 25. give 12 months' notice of his intended marriage to the Privy Council. and may validly marry without consent if within that time both Houses of Parliament have not expressly declared their disapprobation of the intended marriage. This section appears to have remained a dead letter.

 

675

Marriage RULE 70

immaterial that the husband is naturalised before the marriage. 88. On the other hand there is some difficulty in accepting the view that a family even a foreign ruling house - is foreign within the meaning of the Act if all its living members are Commonwealth citizens (formerly British subjects 89) by virtue of the Act of Anne. When once a princess has married into a foreign family, the better opinion would appear to be that all her issue, however remote, are within the exception, even those descended from a later British sovereign, 90) Any other view involves reading into the Act words which are not there: and this, because of its penal character.9t no court would willingly do. 92.

Exception 2 - A marriage celebrated in England is possibly not valid if either of the parties is, according to English domestic law, under an incapacity to marry the other. 93

COMMENT

Westlake considered that a marriage could not be valid unless the parties had capacity under the lex loci celebrationis.94 though the cases he cited do not require the adoption of this principle."5 Dicey doubted its soundness but accepted it out of deference to Westlake.96

The principle stated in Exception 2 to Rule 70 applies only to marriages in England. There is no English case directly in point and the only relevant Commonwealth authority is, on one interpretation, opposed to it. This is the Canadian case of Schwebel v Ungar.97, in which a man domiciled in Ontario and a divorced woman domiciled in Israel married in Ontario. Proceedings were brought in Ontario for a declaration that the marriage was void on the ground that the woman's divorce would not be recognised

 

 

88 Farran (1951) l4 M.L.R. 53. 57; Parry (1956) 5 1.C.L.Q. 61. 83.

89 See British Nationality Act 1981. s.51 (l)(b).

90 Farran (1951) 14 M.L.R. 53. 59 - 60. Parry denies this and prefers the view that the Royal Family and Foreign Ruling Families are mutually exclusive, and that a person can pass from one to the other by marriage and so from the exception to the rule and vice versa.

(1956) 5 1.C.L.Q. 61. 83.

91 s.3 enacts that everyone present at a ceremony in violation of s.1 shall be guilty of praemunire.

92 Since all male lines descended from George II have married back into female lines similarly descended. Farran contended that in 1951 there was nobody, or at least no more than one person, to whom the Royal Marriages Act could apply: (1951) 14 M.L.R. 53. 60 - 63. This contention assumes the correctness of the view, stated in the text, that the "issue" of the exempting princess means "all the issue." So far as the issue of King Edward VII are concerned, it is based on the fact that his consort. Queen Alexandra, was descended from a daughter of George 11 who married the King of Denmark.

93 See Bradshaw (1917) 15 Anglo - Am. L. Rev. 112: Clarkson (1990) 10 Legal Stud. 80.

94 s.19.

95 Scrimpshire v Scrimpshire (1752) 2 Hagg. Con. 395; Middleton v Janverin (1802) 2 Hagg.

Con. 437; Dalrymple v Dalrymple (1811) 2 Hagg. Con. 54. 96 3rd ed.. p .677. n. (h).

97 (1963) 42 D.L.R. (2d) 622 (Ont. C.A.). (1964) 48 D.L.R. (2d) 644 (Sup. Ct. Can).

677

Marriage RULE 70

the law of Washington, though they were valid in British Columbia. The wife brought nullity proceedings in British Columbia and argued that the marriage was invalid because the parties lacked capacity under the lex loci celebrationis. Here the issue was squarely before the court. The court concluded that Breen v Breen 'in no way supports the proposition that incapacity to marry by the lex loci celebrationis but not the lex dornicilii is fatal to the validity of a marriage."5 The proposition was rejected and the marriage held valid.6

It will be seen that the authorities do not support the view that, in the case of a foreign marriage, the parties must have capacity by the lex loci celebrationis. For this reason, Exception 2 has been confined to English marriages. Even here its correctness is doubtful and it has therefore been expressed tentatively. Moreover, it may be necessary to draw a distinction between those cases where the question arises after the celebration of the marriage and those where it arises beforehand (for example, on mandamus proceedings where a registrar of marriages has refused to perform the ceremony). There is much less justification for applying the principle in the former Situation (where it will lead to limping marriages) than in the latter.

Exception 3 The validity of a marriage celebrated in England between persons of whom the one has an English, and the other a foreign, domicile is not affected by any incapacity which, though existing under the law of such foreign domicile, does not exist under the law or England.7

COMMENT

From the principle that capacity to marry depends on the law of a person's domicile, it would seem to follow that the incapacity of either party, under the law of his or her domicile, to contract a marriage with the other, invalidates the marriage. However, in the case9 establishing this doctrine, it was suggested that the application of the principle should be limited, as regards marriages celebrated in England, to cases in which both of the parties are domiciled in a country by the laws of which they are incapable of intermarriage. The suggested limitation has been acted upon, 10, and has been

 

5. At p .621

6 It was held that the lack of parental consent did not invalidate the marriage because that is a question of form governed by the lex loci celebratianis.

7. Sottomayor V. Dc Barros (No.2) (1879) 5 P. D. 94; Cheni v Cheni [1909] P.67. 81-88. Ogden v Ogden [1908] P.46. 74-77 (CA.); Friedman V Friedman's Executors (1922) 43

N.P.D. 259 The principle of this Exception seems to have been misapplied in Pezet v Pezet (1947) 47 S. R. N. S. w. 45, criticised by Morison (1947) 21 Austr. L. J. 4. and overruled by Miller v Teale (1954) 92 C.L.R. 406. It has been suggested that the Exception can be explained as an instance of English public policy preventing the application of a foreign law which would otherwise be applicable: see Kahn-Freund. Selected Writings (1978). pp. 244-247. See also Clarkson (1990) 10 Legal Stud. 80.

8. See Mette v Mette (1859) 1 Sw. & Tr. 416; Re Paine [19401 Ch. 46.

9. Sottomayor v Dc Barros (No.1) (1877) 3 P. D. 1, 6-7 (C.A.).

10. Sottomayor v Dc Barros (No.2) (1879) 5 P. D. 94.

 

679

Marriage RULE 70

Exception 4 - Neither party to a marriage which has been dissolved by a decree of divorce or nullity granted by an English court or recognised in England is precluded from remarrying in the United Kingdom or elsewhere on the ground that the validity of the divorce or annulment would not be recognised in any other country.

COMMENT

This Exception is based on section 50 of the Family Law Act 1986, which replaces and extends section 7 of the Recognition of Divorces and Legal Separations Act 1971. The latter applied only to remarriages in the United Kingdom after a foreign divorce, The 1986 Act extends this to remarriages anywhere after an English or foreign decree of divorce or nullity. It does not, however, cover the case where the first marriage is void ab initio according to the English rules of the conflict of laws, but is valid and subsisting according to the conflict rules of the lex domicilii:, nevertheless, the same rationale would require the second marriage to be held valid in this situation as well. The problem resolved by the legislation is that of the so-called "incidental question". It is fully discussed in Chapter 3, ante.

I LLUSTRATION

H, an Italian national domiciled in Switzerland, obtains a divorce from his wife W 1 from the Swiss court. WI remarries. H wishes to marry in England W2, a Spanish national domiciled in Switzerland. By Swiss law, capacity to marry is governed by the law of the nationality; and

Italian law at that time did not recognise the divorces of Italian nationals. There is no impediment to the marriage of H and W2. 20

 

Exception ~A marriage is not invalid on account of any incapacity which, though imposed by the law of the domicile of both or of either of the parties, is penal, discriminatory or otherwise contrary to public policy.21

COMMENT

"The courts of this country will exceptionally refuse to recognise or give effect to a capacity or incapacity to marry by the law of the domicile on the ground that to give it recognition or effect would be unconscionable in the circumstances in question."22 For instance, priests and nuns are incapable of marriage by the laws of some Roman Catholic countries, but such an incapacity would not be recognised in England23; nor would a prohibition on marriages between persons of different colours, religions or castes24

 

20 This is contrary to R. v. Brencwood Marriage Registrar, supra. but the 1986 Act now

requires a different result.

21 Scott v Att.-Gen. (1886) 11 P D. 128. as explained in Warter v Warter(1890) 15 P D. 152;

Sottomayor v Dc Barros (No.2) (1879) 5 P D. 94, 104; Cheni v Cheni [1909] P. 67; Papadopoudbs v Papadopoulos [1930] P. 55, 64; Cheni v Cheni [1965] P. 85, 98; MacDougall V. Chitnavis, 1937 S. C. 390; Lundgren v O'Brien (No.2) [1921] V. L. R. 36I; see also Lepre v

Lepre[1965] P.52. 64-65; cf. Rule 2.

23C'keni V Cheni supra, at p. 98.

23 Sottomayor V Dc Barros (No.2). supra at p. 104.

24 Ibid.; Cheni v. Cheni [1909] P.67.78; Papadopoulos v Papadopoulos [1930] P. 55. 64.

 

681

RULE 70 Family Law

nor any prohibition imposed for penal or discriminatory reasons.2-' In other words. English law will not recognise a penal status affecting a particular class of persons although it may be recognised by the law of their domicile.

Sir Jocelyn Simon P in the dictum quoted above, said that English courts will exceptionally refuse to recognise a capacity to marry as well as an incapacity. This is no doubt true, but the circumstances would have to be extreme before such a course became justifiable. Possible examples might be a marriage between persons so closely related that sexual intercourse between them was incestuous by English criminal law26 or a marriage with a child below the age of puberty. 27

This Exception was limited by Dicey to marriages in England. As it is based on public policy, however, its scope will depend on the circumstances and, although an English court would be slow to apply English public policy to a marriage having no connection with England, the place of celebration is by no means the only relevant factor.

3. CONSENT OF PARTIES

RULE 71-No marriage is (semble) valid if by the law of either party's domicile he or she does not consent to marry the other.28

COMMENT

In English domestic law a marriage may be invalid for want of consent though it was formerly a disputed question whether the effect is to rend the marriage void or merely voidable.29 The matter is now set at rest, so far as marriages celebrated after July31, 1971, are concerned, by section 12(c) of the Matrimonial Causes Act 1973. which provides that lack of consent by either party in consequence of duress, mistake, unsoundness of mind or otherwise renders a marriage voidable.

There are some reported cases which suggest, but do not conclusively answer, the question what system of law governs this requirement of consent.30 In the absence of even a single decisive authority on the point, our Rule must be regarded as tentative.

25 Scott v Alt. -Gen. (1886) 11 P. D. 128: ante, pp. 67-74.

26 See Brook V. Brook (1861) 9 H.L.C. 193.227-228; Cheni v Cheni [1965] P. 85 .97. In the

latter a marriage between uncle and niece. valid by the law of the parties' domicile and by the law of the place of celebration, was held valid in England.

27 In Mohamed V. Knott [1969] 1 Q B. 1, a marriage with a girl of 13 valid by the law of the

parties' domicile and by the law of the place of celebration, was held valid in England.

28 Apt v Apt [1947] P.127.146: [1948) P. 83. 88 (C.A.); Way v. Way [1950] P.71, 78-79, discussed by J. T. Woodhouse (1954) 3 1.C.L.Q. 454; Szechter v Szechter [1971] P. 286.

29 See 9th ed. of this book. p. 275. n. 99.

30, Cooper v. Crane [1891] P.369: Valier v Valier (1925) 133 L.T. 830: Hussein v. Hussein

[1938] P. 159; Mehta v Mehta [1945] 2 All E. R. 690: Way v Way [1950] P.71; H v H.

[1954] P. 258; Silver V. Silver [1955] 2 All E. R. 614; Parojcic v Parojcic [1958)1 W.L.R.

1280; Kassirn V. Kassirn [1962] P. 224: Buckland v. Buckland [1968] P. 296; Szechter v

Szechier [1971] P. 286: Lendrum v Chakravarti. 1929 S.L.T. 96: MacDougall v Chitnavis.

1937 S.C. 390: Di Mento v Visalli [1973] 2 N. S. W. L R. 199: In the Marriage of 5uria (1977)

29 F.L.R 308

 

682

REPRODUCTIVE TECHNOLOGY, TRANSSEXUALISM AND

HOMOSEXUALITY: NEW PROBLEMS FOR INTERNATIONAL

PRIVATE LAW

 

KENNETH McK. NORRIE*

 

I. INTRODUCTION

INTERNATIONAL private law has in the past ten or twenty years proved to be one of the most dynamic and fast-moving areas of law, with a number of international conventions on different matters leading to legislation in various countries. These conventions have led, for example, to British legislation dealing with many of the great issues of international private law.' However, as old problems are solved, new ones are as quickly created, as witnessed by the level of litigation generated in both Scotland and England by the Child Abduction and Custody Act 1985. New developments in quite separate fields can also create new problems for the law and therefore for international private law. Modern scientific developments and new medical techniques have opened a rich new seam of material for study by ethicists, moral philosophers and medical lawyers: with the ever-increasing internationalisation of everyday life, these developments will inevitably give rise to new problems for the international private lawyer too.

This article is designed to examine, if on a speculative basis, 2, a number of related issues that have given rise to problems for domestic legal systems and which will, sooner or later, have to be faced from an international private law angle as well. The two major areas to be examined are, first, the definition of parentage in the light of artificial reproductive technology and, second, the recognition of domestic relations that do not fit within the traditional notion of marriage.

II. THE DEFlNITION OF PARENTAGE

A. The Problem Stated

Until very recently international private law issues in relation to parent-

* Reader in law, University of Strathclyde, Glasgow.

1. See e.g. the Hague Convention on the Recognition of Divorces and Legal Separations

1970 (leading - eventually to Part 11 of the Family law Act 1986).. the EC Convention on the law Applicable to Contractual Obligations 1980 (leading to the Contracts (Applicable law) Act 1990), the Hague Convention on the Civil Aspects of International Child Abduction 1980 and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children (leading to the Child Abduction and Custody Act 1985).

2. As far as the writer has been able to trace there are no reported cases directly raising the issue of international private law in the fields that will be looked at.

757

OCTOBER 1994] New Problems for International Private Law 767

Whether these consequences will be recognised in other legal Systems is a question that international private law will eventually have to address. This part of this article will examine not cohabitation as such but forms of "marriage" which are accepted by some legal systems while being regarded as quite outside the bounds of the definition of that word in other legal systems.

 

B. Transsexual Marriages

 

Marriage is a relationship that can be entered into only between one man and one woman. This is not to be denied. In the words of Lord Penzance in Hyde v Hyde marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others". In that case a marriage that was assumed to be potentially polygamous was held to be no marriage, as the law of England understood that institution. Statute now provides in the United Kingdom that certain marital consequences will flow from both potentially and actually polygamous marriages.45 but this does not affect other relationships that look like marriage but which do not satisfy Lord Penzance's description. Medical advances have challenged our traditional views not only of parentage (as has been seen above) but also of sex and sexuality. If marriage is legally a relationship between a man and a woman, and not between two men or between two women, legal systems ought to be able to define what they mean by "man" and "woman". Like parentage, these terms were traditionally regarded as definitionally self-evident, but it is that assumption that medical technique can now challenge. The international private law question becomes this: which legal system defines maleness and femaleness for the purposes of the law of marriage?

It is medically possible (though still very rare) for a person born one sex to undergo sex realignment surgery to give him or her the outward appearance of the other sex. When this is done because the person believes that his or her emotional and inherent being belongs to the new sex, this is referred to as transsexualism. The domestic legal problem is whether the apparent change of sex should be recognised for the purposes of the law, and that problem comes into sharpest focus when a transsexual wishes to marry a person of the apparently opposite but originally same sex. Many legal systems throughout the world have recognised changes in

 

44. (1866) L. R. I P. & D. 130. 135.

45. See Matrimonial Proceedings (Polygamous Marriages) Act 1972.

46. Though the law has for long understood the existence of the natural state of hermaphroditism, in 1686 Stair said (institurions I, iv, 6) that hermaphrodites and others of dubious sort" have no capacity to marry. Such a rule today would undoubtedly breach Art. 12 at the European Convention on Human Rights: see Norrie, "Transsexuals. the Right to Marry and Voidable Marriages in Scots law" 1990 S.L.T. (News) 353.

768 International and Comparative Law Quarterly [VOL.43

an individual's sex even for the purposes of marriage, either by judicial decision, 47, or by legislation. 48. There is no authority in Scotland, but in England in Corbett v Corbett, 49, it was held that, at least for the purposes of marriage, a sex-change operation cannot, be given legal effect to. This has since been held not to breach the European Convention on Human Rights, 50, though with a steadily decreasing majority in the European Court, 51. A conflict of laws problem could arise in this way: a male to female transsexual marries a man in Germany, where both parties are domiciled, and they attempt to have that marriage recognised and given effect to in England. What is the response of the English court likely to be?

Once again, before being able to answer the question, we must be aware of what is being asked. If the question is simply one of the capacity of two people to marry each other (i.e. does X, who used to be a man, have capacity to marry Y, who is and always has been a man?). the answer is (relatively) easy. Capacity to marry is determined by the ante-nuptial domicile of both parties to the marriage. 52.If both are domiciled in Germany and they have capacity to marry each other under German law then a marriage between the two should be recognised elsewhere, certainly if the marriage takes place in Germany. Whether they can marry in Scotland or in England is a little more difficult. The Marriage (Scotland) Act 1977 provides that there is an impediment to marriage in Scotland if both parties are of the same sex53 and the Matrimonial Causes Act 1973 provides that a marriage in England shall be void if the parties are not respectively male and female.54. But that begs the question of which legal system determines

47. See e.g. MT v JT (1976) 3 S. A. A. 2d 204 (Superior Court of New Jersey. Appellate Division); the German Bundesverfassungsgericht (1978) 49 B. Ver. G.E. 286; M v M [19911 N.Z.F.L.R. 337.

48. In Cossey v UK (1991) 13 E.H.R.R. 622 the dissenting judges pointed out that there was legislation to this effect in Denmark, Finland. Germany, Italy. Luxembourg. the Netherlands, Spain and Turkey.

49. [1970] 2 All E. R. 33.

50. Rees v UK (1987)9 E.H.R.R. 56; Cossey V. UK (1991) 13 E.H.R.R. 622.

51. See also B v. France (1992) 16 E.H.R.R. 1.

52. Cheshire and North, op. cit. supra n. 16, at pp .574 - 583. Anton and Beaumont, op. cit supra n.16. at pp 419 - 439. The statement in the text is the one for which there is most authority, although other theories, such as the intended matrimonial home" theory do have some judicial support (at least in England): see e.g. Radwan v Radwan (No.2) [1973] Fam. 35

53. Marriage (Scotland) Act 1977, s.5(4)(e).

54. Matrimonial Causes Act 1973. s. 11 (c). The New Zealand Marriage Act 1955 is. rather surprisingly, gender neutral and an argument has been put forward that a single-sex marriage might therefore prove to be valid under New Zealand law. See Mackenzie. Transsexuals legal status and Same Sex Marriages in New Zealand" (1992) 7 Otago L.R. 556. The argument was rejected-though by a majority only- in Layland v Ontario (1993) 104 D.L.R. (4th) 214 in which two gay men applied for judicial review of a decision to refuse them a licence to marry each other. The application was refused on the ground that the applicants were in reality seeking to have the definition of marriage, which was an institution whose principal purpose" is the founding and maintaining of families in which children will be produced and cared for, changed. This is, of course, precisely what they were attempting. A

OCTOBER 1994] New Problems for International Private Law 769

a person's sex for this purpose. It is obvious to the point of axiom that a person's sex is a matter of status and therefore a matter to be determined by the law of the person's domicile. It follows that a person domiciled in Germany who is currently regarded as a woman by German law should be regarded as a woman in Scotland and England, allowing her to marry a man there, notwithstanding that her status used to be that of "man" rather than "woman".55 Conversely, of course, a transsexual domiciled in England could not enter into such a marriage anywhere, because of his or her domiciliary incapacity. 56.

On the other hand, it might be argued that the capacity of a transsexual to marry a particular individual is not a question of that person's capacity to marry but rather, concerns his or her capacity to marry a particular person and is therefore a question relating not so much to capacity as to the essential nature of the institution of marriage. An analogy with Hyde v Hyde, 57, in which it was held that a potentially polygamous marriage was no "marriage" as English law understood that term, upon which such reasoning is based, does not, however, survive close examination. The transsexual marriage is in essence a relationship between one man and one woman, and indeed is much closer to the traditional notion of marriage than is a polygamous union. The only problem with the transsexual marriage is, how we define the terms" man" and "woman". That goes not to the heart of the marriage relationship but to the transsexual's position in his or her own legal system and there is no challenge to the essential heterosexual monogamous nature of marriage. It is the definition of "man" or of "woman", not the definition of "marriage", that is in issue: the question, in other words, is clearly a matter of sexual status, with the result that a marriage valid by the law of the parties' domicile ought to be given recognition in England and in Scotland, wherever it takes place.

C. Homosexual Marriages

A similar issue, but one which possibly gives a different result, concerns the idea of homosexual "marriages", that is, recognised relationships between two individuals who are undeniably of the same sex (and quite content to be so). 58. Purely in numerical terms this question is far and away

dissenting judge held that this infringed the applicants' rights under s.15 of the Canadian Charter of Rights and Freedoms.

55. It is sometimes suggested that a person must have capacity to marry by the lex loci celebrationis as well as his or her domicile - see Anton and Beaumont, Op. cit supra n.16, at pp. 4-30 for a discussion - and the acceptance of that proposition would prevent a German transsexual marrying in the UK, but there is no direct authority for this proposition and it probably does not reflect the law.

56. Brook V. Brook (1861) 9 H. L C. 193', Sottomayor v Dc Barros (1877) L. R. 3 P. D. I.

57. Supra, n 44.

L SEXUALITY

 S. Marc Breedlove

THE view of the brain as a sexual organ gains further credibility from a report on page 68 of this issue by Zhou et al. who show that there is a structural difference in the brains of ‘ordinary’ men and those of a group of men who wanted to become women (male-to-female transsexuals). The authors emphasize that fetal hormone levels might account for these brain differences, so this paper is sure to fuel debate about whether human sexual behaviour is shaped primarily by society or by biological variables. But the difficulties inherent in studying the diverse sexual behaviour of humans ensure that this will he tar from the final word on the subject.

The tiny region of the brain that is under scrutiny is the central subdivision of the bed nucleus of the stria terminalis (BSTc). and is part of the hypothalamus. which helps to keep the different systems in the body working in harmony. The BSTc is defined on the basis of innervation by the neurotransmitter VIP (vasoactive intestinal polypeptide and has been implicated in sexual behaviour in nonhuman animals. Post-mortem analysis revealed that the volume of this brain region is smaller in women than in men and that the six transsexual men also had a small BSTc. Thus men who wished to become women had a smaller. more ‘feminine’ BSTc than other men.

These observations are reminiscent of an earlier reported difference in the brains of heterosexual and homosexual men, in a nucleus, known as INAH-3 in

strengths and thus is sufficient for rearranging chemical bonds. So the creation of new solids — both stable and metastable — in the H.—O. binary system at still higher pressure remains an exciting challenge for high-pressure chemistry. Meanw hue, the observ ations of Loubevre and Le Toullec have added another intriguing chapter to the metastable behav tour of this system.

 

Russell J. Hemlev is at the Geophysical Laboratory and Center for High-Pressure Research. Carnegie Institution of Washington. Washington DC 20015. USA.

 

the preoptic are;r. Both relate human brain structure to psychological sexual differentiation. But the difference discovered in the BSTc size is clearly not related to sexual orientation. First, male—to— female transsexuals var considerably —some are attracted to men. sorme to women, some are bisexual and some have

f no interest in sexual relations at all. Transsexuality does not seem to he so much a phenomenon of sexual orientation as of’ body image. Second. a cohort of brains from homosexual men revealed BSTc volumes as large as those from the brains of presumed heterosexual men.

There are two reservations that might undermine the correlation described by Zhou et a!.’. The first is that some other feature. more mundane than the fascinating and psychologically complex phenomenon oh transsexuality. is in fact responsible for the correlation hetwcen BSTc size and the transsexuality of the subjects. Within the limitations of working with post-mortem measurements f rom human subjects. Zhou et al tried to address this possibility. For example. all of the transsexuals had received oestrogen treatments. all had aken the antiandrogenie drug cyproterone acetate. and all hut one had been castrated. So the transsexuals. like most women, h-ad low androgen and high oestrogen concentrations in their blood. Perhaps these hormone conditions altered the expression of’ VIP. which in turn affected BSTc sizes

Steroid manipulation in adults certainly

alters neuropeptide expression in nonhuman animals’. Indeed, the two transsexuals with the largest BSTc (hut still within the women s size range) were those who had stopped taking oestrogen before they died. There were several other non-transsexual individuals in the study who. because of various medical conditions. had low androgen or high oestrogen concentrations before death, hut the BSTc remained small in the women and large in the men.

Of course such anecdotal comparisons do not rule out alternative explanations. However, humans differ from one another in so many respects that it is not practical to assemble large enough groups to control for every variable, particularly when dealing with so rare a condition as transsexuality. So it is reassuring that the examples described contradict any simple relation between confounding variables and BSTc volume, suggesting that it is transsexuality per sc that co-varies with BSTc size.

The second reservation concerns the ontogeny of the BSTc and represents that chicken-or-the-egg dilemma endemic to brain correlates of’ behaviour. Did the development of a small BSTc i under the influence of fetal hormone concentrations or gene action alone) cause these males to feel that they were ‘women trapped in men’s bodies’ and seek sex reassignment or did the development of this body image discrepancy (under the influence of social or other experiences) promote under-development of the BSTc. For that matter. did the transsexuals begin puberty with a large, masculine BSTc, which then shrank in response to the myriad experiences associated with transsexuality’?

Laymen may assume that a structural difference in the brain is the immutable signature ol purely biological forces, hut three decades of neuroscience research have made it clear that experience can dramatically alter the structure and function of the brain. The same laboratory now reporting the differences in the brains of transsexuals was also the first to report a sex difference in the human pre. optic urea . a region they named the sexually’ dimorphic nucleus of the preoptic area (SDN-POA). after a similar nucleus found in the rat brain’. The SDN-POA was larger in adult men than in adult

 

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women. But subsequently this group reported that there was no sex difference in the numbers of neurons in the human SDN-POA until ten years of age4.

Thus there is ample room for early experiences, including the very different social stimuli presented to boys and girls. to cause the sex difference found in the adult SDN-POA. Similarly, we do not know how LNAH-3 develops in humans, so it-is not clear whether this sexual dimorphism is a cause or an effect of human sexual differenciation. Neither do we know whether some men having a small JNAH-3 at birth are therefore born gay or. more correctly. born to become gay as adults. Only a sexual dimorphism found in newborn or fetal humans could safely be described as unrelated to social stimulation.

At present. these brain regions can only be measured post mortem. Until technology enables us to measure them

repeatedly in the same person at different ages (before and after puberty, for example), there can he no definitive answer as to whether these regions direct psycho-logical sexual differentiation or are themselves directed by that process.

Of course, these alternatives are not mutually exclusivc. It may he that some are born with a predisposition to transsexuality and that social influences either potentiate or attenuate this predisposition. Both predisposition and social influence would have to affect the brain physically and the work of Zhou and colleagues suggests that the BSTc may be the locus of such effects.

S. Marc Breed/ove is in the Psychology

Department and Graduate Group in Neurobiology. 3210 To/man Hall. University of

California, Berkeley. California 947201650, USA.