A marriage will have a connection with a foreign law in a number of ways

1.                  It may have been celebrated abroad but the issue of validity arises in a Kenyan court or
2.                  One or both parties to the marriage may be domiciled or resident in a foreign country;

The question which arises on the validity of these marriages is which law will determine whether a valid marriage has been contracted?  Is it Kenyan law or is it some foreign law?

The applicable law for purposes of determining the validity of such a foreign marriage (marriage with links with foreign Law) is dependant on two aspects

(i)                 Formal validity of that marriage;
(j)                 Essential validity of the marriage.

Generally the law governing the formal validity of that marriage will be the law of the country where the marriage was celebrated.  This is known as the Lex Loci Celebrationis.

When it comes to essential validity as in issues related to capacity, the law that governs is the law of the parties domicile – lex domicili

So for a foreign marriage to be valid in Kenya it must comply with the formal requirements under the laws of the country where it was celebrated and must fulfil the issues as to capacity and the law of the parties domicile and if it is formally and essentially valid under the applicable laws then it will be applicable in Kenya.

Here so long as the parties comply with the formal requirements of the law of the place of celebration then that marriage will be recognised as formally valid in Kenya.  This is so even if that marriage does not comply with the formal requirements of the parties personal law which is the parties’ domicile.  In some cases parties will go to a certain place to evade conditions laid down by their personal laws.
Simonin v. Mallac

In this case the parties came to England to get married so that they could escape the condition as to parental consent which prevailed in France which was their domicile.  It was held that marriage was valid in England.  The converse also applies if it is formally invalid in the place where it was celebrated and formally valid under their domicile that marriage will be formally denied.  This was the case in
Berthiaume v. Dastous [1930]

In this case the spouses were domiciled in Canada and they were married in a Roman Catholic Church in France.  However under French law a church marriage had to be preceded by a civil ceremony which the parties did not do and therefore under French law this marriage was void.

The court held that that marriage was void even though under the law of Quebec a religious ceremony alone would have been sufficient.


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