PRIVATE INTERNATIONAL LAW AND FAMILY LAW.pdf

PRIVATE

ABSTRACT Through this Project I would like to through some light on PIL and Family Famil y Law. Private International Law is emerging branch of law in today’s today’s era of globalization, people are crossing national boundaries for various purposes and thus subjugate themselves to foreign legal systems. PIL plays are vital role in settling disputes where parties are foreigners. Submitted to: Dr.K. Parameswaran

INTERNATIONAL LAW AND FAMILY LAW GUJARAT NATIONAL LAW UNIVERSITY

Submitted By: 08A043

PRIVATE INTERNATIONAL LAW AND FAMILY LAW

TBALE OF CONTENTS

Table of Latin Terms and Abbreviations

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1. Introduction

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2. The Concept of Domicile and Its Relevance

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2.1 Meaning and definition of Domicile

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3. PIL and Matrimonial Disputes

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3.1Cout’s Role and Duty in Matrimonial Cases…………………………………………..7 3.2 Conflict of Law Rules in Unmarried Cases……………………………………………8 3.3The Status of Foreign Law…………………………………………………………….10 3.4Harmonization………………………………………………………………………...11 4. Conclusion………………....................................................................................................11 5. Bibliography……………………………………………………………………………….12

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LATIN TERMS 1. Lex Domicilii: The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. 2.LexLoci Contractus: The lex loci contractus is the Latin term for "law of the place where the contract is made" in the Conflict of Laws 3. Lex Loci Solutionis: The lex loci solutionis is the Latin term for "law of the place where relevant performance occurs" in the Conflict of Laws. 4.Lex Loci Celebrationis: The lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the Conflict of Laws. 5.Lex Situs: The Lex Situs is the Latin term for “law of the place” or law of the place in which property is situated for the purposes of the Conflict of laws. 6.Lex Fori: In Conflict of Laws, the Latin term lex fori literally means the "law of the forum".

FEW ABBREVIATIONS 1. EU

European

Union 2. PIL 3. CEDAW

Private International Law Convention on the Elimination of Discrimination against

Women 4. EC

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European Council


PRIVATE INTERNATIONAL LAW AND FAMILY LAW INTRODUCTION Private International law is emerging international law these days as due to drastic change in world economies. Earlier people used to move within state for search of job etc. and mostly used to settle there but due to globalization people are moving across state i.e. moving to other country for various reasons. The role of Private International law comes into picture where disputes arises as parties are of different state’s(here state means Nation).private international law is mostly applicable to individual disputes unlike Public International Law which is based on treaties and conventions recognized by various states. As both the parties are of different states which means one of the party is an alien or both parties are alien to the place where cause of action arises or parties wants to settle the matter .PIL comes into picture because it is a set of procedural rules that determines which legal system and which jurisdiction apply to a given dispute. Three basic and most essential constituents of PIL are as follows: 

Jurisdiction – whether the forum court has the power to resolve the dispute at hand

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Choice of law – the law which is being applied to resolve the dispute

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Foreign judgments – the ability to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum.

Here’s the example as how important PIL is and when it comes into pictures, for example, in case of Divorce, an Egyptian man with two wives, both of whom he married in Cairo, who moves to Paris. Both wives have children; the older wife’s children are grown, while the younger wife’s son is quite young. Both wives want a divorce when it appears that their husband is involved with another woman. One wants to return to Egypt, while the other wants to remain in Paris.

What complications arise around issues of terminating one or both

marriages? Thus every court have to pass through following stages while hearing a matter where ‘foreign element’ is present. 1. The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate place/forum to adjudicate the matter?

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2. The next step is the classification of the cause of action into its component legal categories like as if in case of divorce validity of marriage may arise, whether the lex forum should recognize a marriage which is solemnized in other state etc. Aspects of procedural and substantive laws are taken into account. 3. Each legal category is having choice of law and which law to be applicable. A key element in this may be the rules of “renvoi”(send back) 4. Once the applicable law is decided, that law must be proved before the forum court and applied to reach a judgment. 5. The successful party must then enforce the judgment which will first involve the task of securing cross-border recognition of the judgment. Private International Law is of more importance in family matters like divorce, adoption, inheritance of property, movable or immovable etc. IN Family disputes the most important aspect which is taken into account is of “domicile” i.e. the parties are domicile .In Era of globalization importance of Private International Law cannot be undermined specially in family disputes which are increasing day by day

THE CONCEPT OF DOMICLE AND ITS RELEVANCE Personal law may be defined as the law of the country to which a person primarily belongs, especially for the purposes of various matters of family law and succession. In other words, the personal law of an individual determines such matters as: (a) The essential validity of a marriage; (b) The effect of marriage on the proprietary rights of husband and wife; (C) wills of movables and succession to movables; (d) Jurisdiction in divorce and nullity of marriage, and to a certain ext ent, legitimacy of children and adoption; and (e) Certain matters of revenue law.

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PRIVATE INTERNATIONAL LAW AND FAMILY LAW Meaning and Definition of Domicile

The meaning and definition of domicile were elucidated by the Private International Law Committee in its First Report in 1954 as follows: A person’s domicile may be defined as meaning the country (in the sense of a territorial unit possessing its own system of law) in which he has his home and intends to live permanently. The law regards every person as having a domicile, whether it be the domicile of origin which the law confers on him at birth, or the domicile of choice which he may subsequently acquire. The two requisites for the acquisition of a fresh domicile are: (1) residence; and (2) intention to remain permanently, and both these elements must be present before a new domicile can be acquired. If a person, having acquired domicile of choice, abandons it without acquiring a fresh one, the law regards his domicile of origin as having revived until a fresh domicile of choice is acquired, even though he may never in fact have returned to his domicile of origin. Hence, according to this statement, domicile may be defined as the legal system within whose jurisdiction an individual makes his or her home, intending to remain there permanently. It can be seen that the cornerstone underlying the English concept of domicile is permanent home.

For Purpose of better understanding of domicile in respect of Private International Law, it can be categorised as follows: 1.

Domicile of origin

The domicile of origin is the domicile a person acquires at birth, and remains with that

person

thereafter until it is replaced by a domicile of dependency or domicile of choice. A posthumous child, that is, a child born after his or her father’s death, derives his or her domicile of origin from that of the mother. As for the domicile of origin of a foundling, this is derived from the country where he or she is found. 2.

Domicile of dependency

It is a well settled rule that no dependent person can acquire a domicile of choice. The domicile of such persons depends on, and changes with, the domicile of the person on whom they are legally dependent. Two classes of persons must be examined, namely, children under the age of 16 and married women. As for mentally disordered persons, it suffices to note that, in general, the domicile of such a person depends on the person to whose care a mentally disordered person has been entrusted. 5|Page


Example: children who are still minor and age of minority differs from state to state.

3.

Domicile of choice

Every independent person is capable of acquiring a domicile of choice by residing in a country other than the country of origin, with the intention of remaining there permanently. Both the elements of residence and intention must be satisf ied before English law can recognise a change of domicile. Although these elements are considered dist inct, they are, as the remainder of this section will show, interrelated. A domicile of choice is acquired by an individual residing in a country, other than the country of his or her origin, with the intention of remaining there permanently. The onus of proving the acquisition of such a domicile is on the party alleging it, and the burden of proof is a heavy one. Residence is a question of fact. It has to exist, but need not be prolonged. However, it must indicate a real link between the individual and his or her alleged new homeland. Intention to reside in the new homeland must be permanent or indefinite. It does not suffice to have the intention conditional upon the occurrence of an act. Older case law seems to impose an almost irrefutable presumption against the acquisition of a domicile of choice. More recent cases appear to make a distinction between a likely and unlikely contingency. Where the contingency is not sufficiently cle ar, it will not prevent the acquisition of a domicile of choice. On the other hand, where it is clear, the court looks at the likely possibility of it happening. If so, this will prevent the acquisition of a domicile of choice.

4.

Abandonment of domicile

A dependent person will, on independence, retain his or her domicile of dependency as a domicile of choice until it is abandoned at any time thereafter. A domicile of choice will be abandoned when a person departs from a country and the intention to return has withered away. A domicile of origin endures until a domicile of choice is acquired. Once a domicile of choice is abandoned, the domicile of origin revives until another domicile of choice is acquired.

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PIL AND MATRIMONIAL DISPUTES Meaning and Definition of Marriage

A marriage, as understood in Christendom, may be defined ‘as the voluntary union for life of one man and one woman, to the exclusion of all others’. Where one of the parties does not voluntarily consent to the marriage, the marriage will be declared invalid. The union must be of one biological man and one biological woman, otherwise it will be void. With the advent of English Legal system in India Marriage is more or less has become a ‘contract’. Court’s Role and Duty in Matrimonial Cases

In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. For example, Saskatchewan Canada stands alone as a province in Canada that allows more than one spouse at a time per person. Each province has similar marital property laws, but what happens when one or more provinces ignore the federal polygamy law? In this case some of the spouses receive/give marital property from two or more simultaneous spouses, while others may only receive/give from one spouse only, depending on whether their home province allows polygamy. The case becomes even more complicated if foreign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties' nationalities and residences do not match; when there is property in a foreign jurisdiction; or when the parties have changed residence several times during the marriage. Each time a spouse invokes the application of foreign law, the process of divorce slows down, as the parties are directed to brief the issue of conflict of laws and provide translations of the foreign laws. Different jurisdictions follow different sets of rules. Before embarking on a conflict of law analysis, the court must determine whether a property agreement governs the relationship between the parties. The property agreement must satisfy all formalities required in the country where enforcement is sought. Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when couples enter a property agreement, stringent requirements

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are imposed, including notarization, witnesses, and special acknowledgment forms. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be “so ordered” by a judge. This is done in order to ensure that no coercion or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, , lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context. Choice of law

The applicable law in nullity suits depends on the classification of the relevant issue, that is, whether it is an issue of formal validity or an issue of essential vali dity. Lack of parental consent has been classified as an issue of form. In relation to defects affecting consent, such as fraud, duress, mental illness, and so forth, the weight of judicial opinion seems to favour reference of the issue of consent as one of essential validity and, therefore, subject to the law of domicile. IN relation to physical defects or incapacity, the position is unclear. Such defects have been classified as issues of form in some instances, and as issues of capacity in others

Recognition of foreign divorces, legal separations and Annulments

Where a decree is granted elsewhere ,then conflict arises and court may or may not recognize it .Recognition depends upon various grounds as like is there any bilateral treaty of any such convention where both parties and state of filing suit is party to it or not.eg private law agreements like Convention on the Rights of the Child (CRC), the Convention on the Elimination of Discrimination Against Women (CEDAW), Draft Declaration on the Rights of Indigenous Peoples, the Hague Convention on the Recognition of Divorces and Legal Separations, as well as provisions from CEDAW and the International Covenant on Civil and Political Rights and the regional convention reflected in the European Council regulations on divorce. In the absence of a valid and enforceable agreement, here’s how the conflict of law rules work:

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Movable v. Immovable - In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has been no subsequent change in the spouses’ domicile.

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Full Mutability Doctrine - property relations between spouses are governed by their latest domicile, whether acquired before or after the marriage. This is also the norm in England, except for a few cases where severe injustice results from a harsh application. In those cases, the court also examines whether newly acquired property can be traced back to property owned before the change.

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Immutability Doctrine - the original personal law of the parties at the time of marriage continues to govern all property including subsequently acquired property, regardless of a later change in domicile or nationality. E.g. in Israel: “property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement “Note that the Israeli application of the Immutability Doctrine does not distinguish between personal and real property. Both are subject to the law of domicile at marriage.

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Partial Mutability or Mutability of New Acquisition - this is the American approach to conflicts of law in matrimonial property division cases. All movable property acquired during the marriage is subject to the parties’ domicile law at the tim e of acquisition, and not that of the original or intermediate domicile. What was acquired before the marriage is governed by the law of the parties' domicile at the time of marriage. Thus, if rights vested in a property when and where it was purchased, it would not be adversely affected by a later change of domicile.

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Lex Fori - In many cases, courts simply avoid this complicated and expensive analysis by applying their local law to the parties' entire property, even if there is a foreign element. This is based on the assumption that laws around the world are basically similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum’s law applies to all its aspects.

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PRIVATE INTERNATIONAL LAW AND FAMILY LAW Conflict of law rules in unmarried cases

Unlike marriage which has an international recognised legal status, there are no international treaties on recognition of unmarried couple's legal status. If an unmarried couple change residence to different countries, then the local law on where the couple is last domiciled is applied to them. This covers, legal; status of the relationship, rights, obligations and all worldwide movable and immovable property. To otherwise interpret the l aw would mean if the unmarried couple had assets in several different countries, they would then need separate legal cases in each country to resolve all their movable and immovable property. In the absence of a valid and enforceable agreement for an unmarried couple, here’s how the conflict of law rules work: 

Full Mutability Doctrine - property relations between the unmarried couples are governed by their latest domicile, whether acquired before, during or after the relationship.

The status of foreign law

Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than an evidence rather than law because of the issue of sovereignty. If the local court is actuall y giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional. The theoretical responses to this issue are: 

That each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome; or

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That the local court creates a right in its own laws to match that available under the foreign law. This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely local cases.

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That the national court, when applying a foreign law, does not give an extraterritorial effect but recognizes, through its own "conflict of laws rule", that the situation at hand

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falls under the scope of application of the foreign rule. In order to understand this argument one must first define the notion of extraterritorial application of a rule. This notion is susceptible to two distinct meanings: On the one hand, this notion is used to describe the situation where a local court applies a rule other than the Lex fori (local law) Harmonization

As Private International Law is also known as Conflict of Law so there’s need of harmonization while adjudicating disputes where foreign element is present. It’s the moral duty of courts to harmonize various legal systems to provide justice to the parties. The very object of law i.e. justice should not be defeated, thus there’s a need of harmonization To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. The Hague Convention on Private International Law is a treaty organization that oversees conventions designed to develop a uniform system.

CONCLUSION Law in the field of Conflict of law or Private International law is continuously developing and changing with the change in society. Law can never be static i t is always dynamic as law is for the society not society of the law, so with the change in society law too changes. People are moving to other states for various reasons like trade and commerce, job, tourism etc. and thus if any dispute arises and parties cannot settle dispute amicably then rules of PIL is applied. Family Law is that type of law which is not uniform in nature, even within India, there are different Family Law for different sections of society. Family Law derives its origin from Religion and customs, so it’s very difficult to bring uniformity in it unlike criminal law. As unlike principles of criminal law which are somewhat similar in nature through globe, family law on the other hand is much more complex as religion, place/domicile, customs play vital role in it.

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In matrimonial case, court find difficulty in in resolving such disputes as in some country grounds for divorce may not in other, similarly validity of marriage, minor’s marriage, succession rights etc. recognition of foreign judgements, decree etc. are of much relevance in PIL and courts are under moral duty to provide best relief in favour of parties, so that the ultimate of law is not defeated. Family law is such a law which can never be uniformed nor can any convention be made applicable while adjudicating disputes as its law which has its origin mostly from religion and customs. For example even in India Dr. Ambedkar proposed for a Uniform Code governing family matters but was widely criticised as still people are very religious and can ’t go against it even though it may be wrong.

BIBLIOGRAPHY 1.Abla J Mayss, LLM, PhD, Licence en Droît ,” Principles of Conflict of Laws , Cavendish ”

Publishing Limited, London, Sydney,3 Rd ed,1999. 2. J. G AUTOR COLLIER, John Greenwood Collier,” Conflict of Laws”, Cambridge University Press, 2001 3. http://abookmedhin.files.wordpress.com/2010/12/principles-of-conflict-of-laws.pdf 4.http://books.google.co.in/books?id=gOYveQFbMakC&printsec=frontcover&source=gbs_g e_summary_r&cad=0#v=onepage&q&f=false 5. http://en.wikipedia.org/wiki/Conflict_of_laws 6. http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/stark0207.htm 7. http://www.legalserviceindia.com/articles/frpca.htm 8. Lectures of Dr.K. Parameswaran.

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PRIVATE INTERNATIONAL LAW AND FAMILY LAW.pdf

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