This refers to the rules that relate to formalities of contracting a marriage. This will normally be rules relating to the preliminaries to marriage e.g. requirements as to notice and so forth. Also rules relating to the actual ceremony act itself such as time, place, nature of the ceremony, requirements as to witnesses and in Apt v. Apt a rule which permitted marriage by way of proxy was classified as a formality and such a marriage in a country where marriages by proxy are permitted was held to be valid and recognised by the English Courts. The marriage took place in a country where they permitted marriages by proxy.
Ogden v. Ogden – problem was whether parental consent was one of formality or capacity. Parental consent in this case was classified as an issue of formality and since the marriage had been celebrated in England, English law was applied as opposed to French law which was the law of the parties country of domicile. Had it been an issue of capacity, under French law the parties would have required parental consent which had not been given that marriage would have been declared null and void.
EXCEPTIONS THAT APPLY TO THE RULE THAT FORMAL VALIDITY IS GOVERNED BY THE LAW OF THE PLACE WHERE THE MARRIAGE TOOK PLACE
Under statute the marriage Act under S. 5(2) and S.38A(which is an amendment) under these two sections, marriages can be contracted under Kenyan law before a Kenyan consular or other public officer in any foreign country where at least one party to that wedding is a Kenyan citizen. Essentially they are saying that where Kenyans marry in Kenyan embassy the applicable rule will be the Kenyan law. Such marriages must be solemnised at the official residence of the marriage officer between the hours of 8 am and 6pm and in the presence of two or more witnesses. Once it has been contracted that marriage will be formally valid in Kenya even though it may not be formally valid in the country where it was celebrated.
The two common goal exceptions are
1. Marriages in situations where compliance with the local law is impossible for example when you get married in a place where no laws apply or in an uninhabited region.
2. Where the marriage occurs in a country under hostile occupation and at least one of the parties to that marriage is a member of the occupying forces.
In these two exception the law that will then apply is the common law as to formalities of marriage. That marriage will be valid so long as the formal requirements under common law are met.
1. they should take each other as man and wife in the presence of each other and that an ordained priest should perform the ceremony.
Preston v. Preston
Taczanowska v. Taczanowski
Two Polish nationals, domiciled in Poland were married in Italy in 1946 by a Polish Army Chaplain, an episcopally ordained priest of the Roman Catholic Church, and therefore their marriage was valid according to the English Common Law. The husband was serving in the Polish army in occupation in Italy. The ceremony did not comply with the local forms and was therefore void by Italian domestic law, but it would have been recognised as valid by that country’s private international law if it was valid by the national law of the parties. It was however, not valid by Polish law.
The parties moved to England and later the wife petitioned for a decree of nullity on the ground that the marriage was void for non-compliance with the local forms. The court of appeal felt that since the parties were presumed not to have submitted themselves to the Italian law of the place of celebration, that law did not have to be applied. It was considered that there will often be no submission by a member of the military forces in occupation of a country and as such it was held to be the case here. As Italian law was not applicable and the law of the parties’ domicil was considered irrelevant, English common law was applied and the validity of he marriage upheld.