Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.
The choice of law
The standard choice of law rules for adjudicating on issues relating to marriage represent a balance between the various public policies of the laws involved:
Status and capacity
Status and capacity are defined by the personal laws of the parties, namely:
the lex domicilii or law of the domicile in common law states, and
either the lex patriae or law of nationality, or law of habitual residence in civil law states).
The personal laws will usually define status in rem so that it is recognised wherever the individual may travel subject only to significant public policy limits. Hence, for example, as an aspect of parens patriae, a state will define the age at which a person may marry. If such a limitation could simply be evaded by the young person traveling abroad on a holiday to a country with a lower age limit, this would clearly breach the policy of the "parental" state. The same principle would apply to an adult who wished to create a polygamous marriage or to evade a restriction on consanguinity. In Family Law as opposed to the Law of Contract, there is also a strong case for legal capacity to be universally enforced to limit to ability of individuals to evade normally mandatory rules. The claims of the lex loci celebrationis to apply are weak given that the significance of the location may be no more than the convenience of their laws to those wishing to marry.
Validity of the marriage
The form of the marriage is governed by the lex loci celebrationis or the law of the place where the marriage was celebrated or occurred, and is usually considered definitive on whether the ceremony or legal recognition has been effective to create the relationship of marriage and marital rights (see nullity). The validity of the marriage is governed by the capacity of the parties to marry each other. Capacity to become a spouse is usually governed by the domicile of the parties. Thus for example, a 13-year-old does not have the capacity to marry in England, but does have that capacity in Nigeria (Northern Muslim Community). Likewise, in Canada no person can be "sanctioned" to have multiple spouses.
Lex fori
The lex fori, or proper jurisdiction to adjudicate legal disputes, will usually be the state where the spouses have sought to make their matrimonial home. This state will usually have a clear and direct interest in the applications of its policies to regulate the nature of relationships permitted to confer the status of husband and wife within their territorial boundaries. It may also attempt to regulate the behavior of those who wish to cohabit within their territory although this may contravene privacy rights.
Custom
In many states, culturally separate communities have retained their own traditions. A developing modern state had to determine whether it should recognize such traditions as it was establishing a centralized system of law. In South Africa, for example, the Recognition of Customary Marriages Act, 1998 retrospectively recognizes as valid all customary marriages so long as they are registered. Further, s2(3) of the Act provides that, if a person has entered into more than one customary law marriage, all valid marriages entered into before the commencement of the Act, are recognized. The Act similarly recognizes all customary marriages entered into after the commencement of the Act where the High Court approves a written contract regulating the future matrimonial property systems for marriages (both present and prospective spouses must be joined in the application). Such measure represented a major shift, because custom marriages were often potentially or actually polygamous as against public policy, and were not recognized under the new law.
Where a state has produced a formal body of law to control recognition, this will establish a general framework under which international recognition can be managed. Where there is no formal rule within the lex loci celebrationis, a forum court could hear expert evidence on whether the marriage would be accepted as effective (see the public policy of favor matrimonii which creates a rebuttable presumption in favor of the validity of any marriage) but it will be difficult for the parties to justify their failure to comply with the local laws that unambiguously would have created a valid marriage.