Marriage and the question of validity: A comparative reformulation of essential validity precepts to establish certainty for couples via optimal choice of law rules

Clayton-Helm, Lauren (2017) Marriage and the question of validity: A comparative reformulation of essential validity precepts to establish certainty for couples via optimal choice of law rules. Doctoral thesis, Northumbria University.

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Abstract

This thesis is concerned with the conflict of laws surrounding marriage validity, with a particular focus on essential validity. At present in England, there is a multitude of choice of law rules available to the courts when determining the applicable law, and no way of knowing which will be applied. Consequently, it is difficult for a couple to know whether their marriage is valid, and complications eschew from this. In addition to any emotional impact a finding of invalidity might have, there is the potential for significant legal consequences.

With these embryonic legal ramifications in mind, this thesis seeks to create optimal choice of law rules that are both appropriate, and provide certainty. In doing so, support is drawn from various literary sources to promulgate a dépeçage based interest analysis approach. This means that rules are selected for each of the incapacities, taking into account the relevant policy objectives they raise, making the optimal choice of law rules policy sensitive in nature. Furthermore, a new and original choice of law rule; the continued recognised relationship theory is proposed.

With much of the literature pre-dating the legal developments surrounding same-sex relationships in England, this thesis goes on to seminally include the determination of the applicable law in same-sex relationships. This is particularly important given the inconsistencies surrounding same-sex relationships; it is an area ripe for conflict disputes, making a set choice of law rule vital if certainty is to be achieved across the marriage validity spectrum.

Finally, as a result of increased migration, this thesis extends beyond the borders of England, and encompasses the EU and the US, with the aim of evaluating how certainty might be continued as couples cross state borders. To this end, harmonisation of the choice of law rules proposed herein are propounded across these jurisdictions.

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