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Conflict of laws with respect to marriage in different jurisdictions

Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.

The form of the marriage is governed by the lex loci celebrationis or the law of the place where the marriage was celebrated or occurred, and is usually considered definitive on whether the ceremony or legal recognition has been effective to create the relationship of marriage and marital rights (see nullity). The validity of the marriage is governed by the capacity of the parties to marry each other. Capacity to become a spouse is usually governed by the domicile of the parties. Thus for example, a 13 year old does not have the capacity to marry in England, but does have that capacity in Nigeria (Northern Muslim Community). Likewise, in Canada no person can be "sanctioned" to have multiple spouses.

The lex fori, or proper jurisdiction to adjudicate legal disputes, will usually be the state where the spouses have sought to make their matrimonial home. This state will usually have a clear and direct interest in the applications of its policies to regulate the nature of relationships permitted to confer the status of husband and wife within their territorial boundaries. It may also attempt to regulate the behavior of those who wish to cohabit within their territory although this may contravene privacy rights.

In many states, culturally separate communities have retained their own traditions. A developing modern state had to determine whether it should recognize such traditions as it was establishing a centralized system of law. In South Africa, for example, the Recognition of Customary Marriages Act, 1998 retrospectively recognizes as valid all customary marriages so long as they are registered. Further, s2(3) of the Act provides that, if a person has entered into more than one customary law marriage, all valid marriages entered into before the commencement of the Act, are recognized. The Act similarly recognizes all customary marriages entered into after the commencement of the Act where the High Court approves a written contract regulating the future matrimonial property systems for marriages (both present and prospective spouses must be joined in the application). Such measure represented a major shift, because custom marriages were often potentially or actually polygamous as against public policy, and were not recognized under the new law. Where a state has produced a formal body of law to control recognition, this will establish a general framework under which international recognition can be managed. Where there is no formal rule within the lex loci celebrationis, a forum court could hear expert evidence on whether the marriage would be accepted as effective (see the public policy of favor matrimonii which creates a rebuttable presumption in favor of the validity of any marriage) but it will be difficult for the parties to justify their failure to comply with the local laws that unambiguously would have created a valid marriage.

In some states, the legal acceptability of common law marriage is very limited. Some couples, whether because there are no local formalities relevant to them or because they have strongly held prejudices against compliance with the local forms, decide to create a marriage either by a simple public exchange of vows (per verbis inter praesentes), or by habit and repute. Because the need for conformity between states requires respect for the legal systems, it is now very difficult to identify states with no local system for the celebration and registration of marriages, and even more difficult for the courts of one state to justify a decision to support the prejudices of two of its citizens against the laws of the second state. However, other states permit informal marriages to acquire legal status and, where this happens, there is no reason in principle why international recognition should not follow.

In some countries, the registration of a marriage means that it cannot later be declared invalid, since it has been accepted by the government. In Taiwan, which follows a variation of the Napoleonic Code (received by way of Japan), the presumption is that each country maintains a central registry of its citizens, including their marital status. If a Taiwan citizen marries in another country, however, this information may not find its way into the records. Many thousands of ROC soldiers who came to Taiwan in 1949 left behind wives in mainland China, but married local Taiwanese women. Since the two polities did not share records, the result was a pattern of legally recognized second marriages, despite the ban on polygamy by both sides of the Taiwan Strait. Today, foreigners wishing to marry Taiwan citizens must present letters from their countries' representative offices testifying that they are not already married. (Of course a determined bigamist might marry in some third country.) In the case of countries which lack centralized family records (such as the USA), a notarized affidavit is accepted.

At the time a secular court considers the validity of this marriage, there are already multiple spouses. In English law, for example, §2 Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abode with the result that any application from such a wife has to be considered in accordance with paragraphs 278 to 280 of the Immigration Rules, which contain provisions to restrict settlement in most cases to one wife. But, for less controversial purposes, most states are willing to recognise actually polygamous marriages as valid so long as the parties had the capacity to enter into such relationships and the ceremonies were effective under the lex loci celebrationis.

In a Chinese conception of marriage, a marriage is defined as being a relationship in which unions of various surnames are established in order to increase the lines of succession and property values. The first law providing for marriage of people of the same sex in modern times was enacted in 2001 in the Netherlands. As of 2022, same sex marriage is legally recognized (nationwide or in some parts) in the following countries: Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States and Uruguay. Polls show rising support for legally recognizing same sex marriage in most of the Americas and Europe. Israel recognizes same sex marriages abroad but does not allow same sex marriages to be performed within its borders. In several countries worldwide a same sex couple can be legally partnered in a civil union, domestic partnership or registered partnership. Couples in these unions or partnerships are afforded rights and obligations similar to, but not identical to, those of a married couple. On the issue of transsexualism, the European Court of Human Rights in Goodwin v UK and I v UK (July 2002) concluded that there is no justification for barring a transsexual from enjoying the right to marry. In Bellinger v Bellinger [2003] UKHL 21, (2003) Times, 11 April the English courts held that the non recognition of change of gender for the purposes of marriage in s 11(c) of the Matrimonial Causes Act 1973 was incompatible with Convention rights. But the House of Lords did not consider that the issues raised in the case were suitable for determination by courts and left the matter for Parliament, which has now enacted the Gender Recognition Act 2004 and matches the majority of European states in permitting marriage in the adoptive gender role. The same rights may be allowed in Australia, Canada, and some other states.