Conflict of law rules in marriage : an approach based on the co-ordination of the relevant policy considerations
The present thesis is not a mere overview of the existing legal literature bearing on choice of law rules for marriage, nor is it a simple survey of the whole range of arguments endorsing one approach over another with regard to this issue: it rather puts forward a sustained argument towards a more appropriate way of looking at the conflict of law problems in marriage. Though choice of law rules for marriage has long preoccupied scholars and judges alike, the ever increasing antagonism between the preponderance of conflict values [predictability, certainty] and the growing concern to guarantee ajust result in individual atypical cases makes the continuous exploration of this particular topic both necessary and of significant legal interest. The study seeks essentially to establish that, contrary to what most scholars would have us believe, the intractable conflict problems in marriage are not inherent in the inefficiency of the traditional general choice of law rules, nor simply in the interrelation between different social, religious and legal cultures. Rather,they are attributable to the structure of a seemingly modem methodology that focuses more and more on the the attainment of ajust substantive result, the astonishing lack of consensus among legal systems, the disregard of coordination of policy considerations relevant in marriage, the parochial and nationalistic focus in choice of law, as well as in the application of the rule that lex fori is the only source of conflict norms. Further, the inappropriate application of the general choice of law rules, and the lasting antinomy between the international objectives [the attribution of an international relationship to the relevant system] and the national sources of conflict of laws are at the heart of the choice of law problems in marriage. The emerging academic movement to modernise choice of law rules for marriage, with a view to guaranteeing desirable results in hard cases, defeats the very essence of conflict of laws, and renders illusory what little certainty and predictability the normative criteria of the com1icts orthodoxies may provide. The underlying reason lies in the inherent disregard of the practical difficulties facing the officials who have, outside the courts, to apply the law and to reconcile the competing goals of predictability and flexibility. The present writer's objective is the development of a more appropriate approach which can establish an equilibrium between the much needed certainty in the present subject and judicial appreciation of the difficulties presented in the individual atypical cases, without scuttling the established conflicts orthodoxies, and at the same time to eliminate the social evil termed "limping marriage". Finally, the domestic and intemationallaw reform agencies should avoid the parochial and nationalistic focus in choice of law, and the rule that lex fori is the only source of conflicts norms if they wish to make a claim that their aim is the attainment of a universal uniform body of rules which will ensure the universal validity of a marriage, and the maximum harmony of decisions.