This is concerned with issues of capacity and the applicable law is the law of the parties domicile.  The problem that arises to the application of this rule is what test is to be applied to determine the parties’ domicile.  You may find parties domiciled in different countries at the time of contracting the marriage or they may even intend to acquire a different domicile after they get married.  So which law applies.

The traditional theory which has been used is the dual domicile test.  Under this theory it is stated that capacity to marry will be governed by the law of the parties and ante-nuptial domicile i.e. each party must have capacity according to the law of his/her domicile at the time of the ceremony to marry.  This has been applied in a number of cases

Pugh v. Pugh

A British officer, domiciled in England but stationed in Austria, married a Hungarian girl in Austria in 1946.  The girl whose domicile of origin was Hungarian, had gone to Austria with her parents to escape from Russian advance.  She was only fifteen years of age and therefore, if her capacity had been governed by English domestic law, the marriage would undoubtedly have been rendered void by the Age of Marriage Act 1929 which prohibited a marriage “between persons either of whom is under the age of sixteen. 

By Austrian law the marriage was valid, and by Hungarian law it had become valid in that it had not been avoided before she had attained the age of seventeen.
The wife submitted that the marriage was void for want of capacity, first because the husband was a British subject with an English domicil and therefore bound by the 1929 Act.  Secondly and alternatively because the essential validity of the marriage was determinable by English law as being either the law of he husband’s domicil or the law of the country of the proposed matrimonial home.  Pearce J granted a decree of nullity, holding that the wife was entitled to succeed on both submissions.

Republic v. Brentwood Registrar of Marriages

Intended Matrimonial Home Test

Under this test parties should have capacity to marry as determined by the law of their intended matrimonial domicile.   This test has been criticised mainly because it tends to invalidate marriages such that if parties don’t have capacity, still the marriage will be declared null and void.

While it has been supported by social grounds

Cases which apply to the test include

De Reneville v. De Reneville

Kenward v. Kenward

Radwani v. Radwani

Cheni v. Cheni – prohibited degrees of relationships.

Mohamed v. Knott (1969) 1 Q.B   - it can apply to us in Kenya and the issue was the age of the parties.  A Nigerian man married a 13 year old and then left to live in England with the bride and the marriage was recognised in England because under their domicile law they could get married

The Sinha Peerage Case
Mohammed v. Knott.

Three exceptions to this rule on essential validity

1.                  The rule in Sottomayor v. De Barros – this case decided which was an exception that the validity of a marriage celebrated in England between persons of whom 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 English law.(Kenyan Law).  This exception was a way of going round the test of dual domicile test.  In Sottomayer the wife and husband were first cousins the husband in England and wife in Portugal.  Under Portuguese law marriages between cousins were prohibited in Portugal but allowed in the UK.  The marriage was held to be valid in the UK.

2.                  Where the law of the place of celebration is also the law where that issue as to validity is being heard.  It is the law of forum deciding the issue of validity.  In that case one applies the law of the place of celebration to determine issues of essential validity.   That is because if you apply another law you will be asking a forum to apply law which is inconsistent with its own laws.  Remember if the Lex fori is the same as Lex loci celebrationiis.

3.                  If the foreign domicile law that governs the issue of capacity is repugnant to public policy, it will not be recognised.  Therefore courts will not recognise a foreign incapacity which is of a penal or discriminatory nature.  For example incapacity which is based on grounds of race, religion or any other classification which discriminates or penalises a particular section of the population.

Chetti v. Chett (1909) P 67


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