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Restatement (Second) of the Conflict of Laws
CHAPTER 11
Status
Introductory Note
This Chapter deals with three
familial relationships: marriage (see §§ 283-286), legitimacy (see §§
287-288) and adoption (see §§ 289-290). Each of these relationships is a
status, and each is of high importance to the state.
In law, a status can be viewed
from two standpoints. It can be viewed as a relationship which continues
as the parties move from state to state, or it can be viewed from the
standpoint of the incidents that arise from it. So marriage can be
viewed as a relationship, namely solely from the point of view of
whether a given man and woman are husband and wife. On the other hand,
marriage can be viewed from the standpoint of its incidents, such as
whether the man and woman may lawfully cohabit as husband and wife, the
interests which the one has in the other's assets and the right of each
to inherit, or to take a forced share in, the other's estate. Similarly,
legitimacy can be viewed from the standpoint of whether there is a
relationship of legitimacy between a child and its parent, or it can be
viewed from the standpoint of its incidents, such as whether the child
is entitled to an intestate share in the parent's estate or whether, as
a matter of construction, the child qualifies as "issue" of that parent
under the provisions of a will.
On occasion, the courts are
faced with a question of pure status, namely whether, as a general
proposition, there is a marital, or a legitimate, or an adoptive
relationship between the parties. For example, in the case of marriage,
a question of pure status may arise in an action for an annulment, in an
action for a declaratory judgment that a marriage does or does not exist
or in a criminal prosecution for bigamy. It is clear, however, that
questions involving the incidents of a status arise more frequently than
do questions which purely involve the status as such. One problem is
whether a question involving the incidents of a status can properly be
decided without having made a preliminary determination of whether the
status does, or does not, exist. For example, can a court properly
determine that a woman may inherit from the deceased as a "surviving
spouse" within the meaning of its intestacy statute without having first
determined that she was validly married to him under the law governing
the marriage? Or can a court properly determine that a child born before
the marriage of his parents may inherit from his father under its
intestacy statute without having first determined that the child is
legitimate under the law governing legitimacy? By and large, the courts
have acted on the assumption that a decision of questions involving the
incidents of a marriage should be preceded by a determination of the
validity of the marriage. On the other hand, the courts have been more
inclined to decide questions of incidents involving legitimacy and
adoption without having first determined whether legitimacy or adoption
existed as a status.
A person's status remains the
same during his travels from state to state. So persons who have been
validly married will be regarded as husband and wife as they move from
state to state. On the other hand, the incidents that arise from a
status are likely to vary since they depend upon the law governing the
particular incident. Thus, whether two persons are validly married is
determined, wherever they may be, by the law governing the marriage (see
§ 283). Whether, on the other hand, they can lawfully cohabit as man and
wife in a certain state is determined by the local law of that state
(see § 284).
Recognition will not be denied
a foreign status merely because it is unknown to the local law of the
forum. Rather such effects will be accorded the status in the state of
the forum as are consonant with the local law of the state which created
the status and are not contrary to the strong public policy of the
forum. Thus, the offspring of a polygamous marriage celebrated in a
country recognizing polygamy and between parties domiciled there will be
held legitimate and accorded rights of succession in the state of the
forum (see § 288). Similarly, the English courts granted rights of
succession to children legitimated under a foreign law prior to the time
that legitimation became a part of English law.
Topic 1. Marriage
§ 283. Validity Of Marriage
(1) The validity of a marriage will be determined by the local law
of the state which, with respect to the particular issue, has the most
significant relationship to the spouses and the marriage under the
principles stated in § 6.
(2) A marriage which satisfies the requirements of the state where
the marriage was contracted will everywhere be recognized as valid
unless it violates the strong public policy of another state which had
the most significant relationship to the spouses and the marriage at the
time of the marriage.
Comment:
a. Scope of section. The rule of this Section
is concerned with what law governs the validity of a marriage as such,
namely with what law determines, without regard to any incident
involving the marriage, whether a man and a woman are husband and wife.
As stated in the Introductory Note to this Chapter, the validity of a
marriage as such may be exclusively involved in an action for an
annulment, in an action for a declaratory judgment that a marriage does
or does not exist and in a criminal prosecution for bigamy. As also
stated in the Introductory Note, the courts have usually acted on the
assumption that a decision of questions involving the incidents of a
marriage should be preceded by a determination of the validity of the
marriage.
Comment on Subsection (1):
b. Rationale. The principles stated in § 6
underlie all rules of choice of law and are used in evaluating the
significance of a relationship, with respect to the particular issue, of
the potentially interested states to the transaction and the parties.
The factors listed in Subsection (2) of the rule of § 6 can be divided
into five groups. One group is concerned with the fact that in
multistate cases it is essential that the rules of decision promote
harmonious and beneficial relationships in the interdependent community,
federal or international. The second group focuses upon the purposes,
policies, aims and objectives of each of the competing local law rules
urged to govern in having their rules applied. The factors in this
second group are at times referred to as "state interests" or as
appertaining to an "interested state." The third group involves the
needs of the parties, namely the protection of their justified
expectations and certainty and predictability of result. The fourth
group is directed to the implementation of the basic policy underlying
the particular field of law, such as torts or contracts, and the fifth
group is concerned with the needs of judicial administration, namely
with ease in the determination and application of the law to be applied.
The factors listed in Subsection (2) of § 6 vary
somewhat in importance from field to field and from issue to issue.
Thus, the protection of the justified expectations of the parties is of
considerable importance in the case of marriage, whereas it is of little
importance in torts (see § 145, Comment b). Parties enter into marriage
with forethought. To the extent that they think about the matter, they
would usually expect that the validity of their marriage would be
determined by the local law of the state where it was contracted. In
situations where the parties did not give advance thought to the
question of which should be the state of the applicable law, or where
their intentions in this regard cannot be ascertained, it may at least
be said that they expected the marriage to be valid.
The need for protecting the expectations of the
parties gives importance in turn to the values of certainty,
predictability and uniformity of result. For unless these values are
attained, the expectations of the parties are likely to be disappointed.
Protection of the justified expectations of the
parties by choice-of-law rules in the field of marriage is supported
both by those factors in Subsection (2) of § 6 which are directed to the
furtherance of the needs of the parties and by those factors which are
directed to implementation of the basic policy underlying the particular
field of law. Protection of the justified expectations of the parties is
a basic policy underlying the field of marriage.
Another factor listed in Subsection (2) of § 6 which
is of great importance in the area of choice of law with respect to
marriage is implementation of the relevant policies of the state with
the dominant interest in the determination of the particular issue.
Marriage is a matter of intense public concern, and all states have
rules stating how marriages may be contracted and prohibiting certain
marriages. The extent of the interest of a state in having its rule
applied should be determined in the light of the purpose sought to be
achieved by the rule (see Comment c) and of the issue involved (see
Comment d) and by the relation of the marriage and the parties to the
state.
c. Purpose of rule. The interest of a state in
having one of its marriage rules applied will depend upon the purpose
sought to be achieved by that rule and upon the relation of the state to
the marriage and to the parties. So the state where the spouses were
domiciled before the marriage and where they make their home immediately
thereafter has an obvious interest in the application of a rule
forbidding the marriage of persons within certain degrees of
relationship. On the other hand, such a state may have little interest
in the application to an out-of- state marriage of a rule regulating the
form in which a marriage should be celebrated. By way of contrast, the
state where the marriage was celebrated may have a real interest in the
application to non-residents of a rule regulating the form that a
marriage ceremony should take and little interest in the application of
a rule directed to incestuous marriages.
d. The issue involved. The courts have long
recognized that they are not bound to decide all issues under the local
law of a single state. Thus, in an action involving the validity of a
marriage contracted in one state by persons domiciled in another state,
a court under traditional and prevailing practice applies its own
state's rules to issues involving process, pleadings, joinder of
parties, and the administration of the trial (see Chapter 6), while
deciding other issues, such as the capacity of the parties to marry, by
reference to the law selected by application of the rule of this
Section. The rule of this Section makes explicit that selective approach
to the choice of the law governing particular issues.
Each issue is to receive separate consideration if it
is one which would be resolved differently under the local law rule of
two or more of the potentially interested states.
Comment on Subsection (2):
e. By "state where the marriage was contracted"
is meant the state where the marriage was celebrated or where some other
act was done that is claimed to have resulted in the creation of a
marriage status. In some states, the status can be created by an act
other than a formal ceremony, such as in the case of a common law
marriage (see Comment g).
f. Formalities. The state where the marriage
was celebrated, or, in the case of a common law marriage, the state
where the parties cohabited while holding themselves out to be man and
wife, is the state which will usually be primarily concerned with the
question of formalities. These include such matters as:
1. the necessity of a license;
2. the necessity of a formal ceremony;
3. the person to perform the ceremony;
4. the manner of the performance of the ceremony.
If the requirements of this state have been complied
with, the marriage will not be held invalid in other states for lack of
the necessary formalities except in the unusual situation where such a
result is required by the strong policy of another state which had the
most significant relationship to the spouses and the marriage at the
time of the marriage.
g. "Common law" marriage. Whether a marriage
can be created without formal ceremony is a question relating to
formalities. If the acts relied upon to create the marriage meet the
requirements of the state where the acts took place, the marriage will
not be held invalid for lack of the necessary formalities except in the
unusual circumstances stated in Comment f. A marriage without ceremony
is commonly called a common law marriage.
h. Validity in respects other than formalities.
The interest of the state where the marriage was contracted relates
primarily to the question whether there has been compliance with the
formalities prescribed by its local law. Other considerations lead to
the upholding of the validity of a marriage which meets the requirements
of this state in other respects. The validity of a marriage is of utmost
concern to the parties and their children; so the choice of the
applicable law should be simple and easy in application and should point
to the law most likely to have been consulted by the parties.
Furthermore, there is a strong inclination to uphold a marriage because
of the hardship that might otherwise be visited upon the parties and
their children. Finally, differences among the marriage laws of various
states usually involve only minor matters of debatable policy rather
than fundamentals. All of these factors together support the general
rule that a marriage which meets the requirements of the state where the
marriage was contracted will be held valid everywhere. So, for example,
a marriage will usually be valid everywhere if it complies with the
requirements of the state where it was contracted as to such matters as:
1. the capacity of either party to marry;
2. whether the consent of a parent or guardian is necessary;
3. whether the parties are within one of the forbidden degrees of
relationship;
4. physical examination before marriage.
i. Marriage which does not meet the
requirements of the state where it was contracted. Upholding the
validity of a marriage is, as stated in Comment b, a basic policy in all
states. The fact that a marriage does not comply with the requirements
of the state where it was contracted should not therefore inevitably
lead to the conclusion that the marriage is invalid. To begin with, the
requirement that was not satisfied may not be mandatory, at least in the
case of a marriage between nonresidents, in the state where the marriage
was contracted with the result that the marriage would be valid even
under the local conceptions of that state. But even if the requirement
is a mandatory one, the marriage should not be necessarily be held
invalid in other states provided that it would be valid under the local
law of some other state having a substantial relation to the parties and
the marriage. The marriage should not be held invalid in such a case
unless the intensity of the interest of the state where the marriage was
contracted in having its invalidating rule applied outweighs the policy
of protecting the expectations of the parties by upholding the marriage
and the interest of the other state with the validating rule in having
this rule applied.
The state where the marriage was contracted has a
substantial interest in having persons who marry within its territory
comply with its local requirements as to formalities at least to the
extent that these requirements are mandatory. As to such mandatory
requirements, the state where the marriage was contracted may well be
the state of dominant interest and, if so, there is good reason for its
invalidating rule to be applied.
The state where the marriage was contracted will
probably have no similar interest in the application to a marriage
between non-residents of such of its marriage rules as do not relate to
formalities. So, for example, there would seem to be little reason to
invalidate a marriage between first cousins by application of a rule of
the state where the marriage was contracted if such a marriage would be
valid under the local law of the state where the parties were domiciled
both before and immediately following their marriage. Upholding the
validity of the marriage in such a case by application of the validating
rule of the state of domicil would seem required by the fact that the
latter state has the dominant interest in the issue to be decided and by
the choice-of-law policy which favors protection of the justified
expectations of the parties by upholding the marriage.
j. Marriage which does not satisfy requirements of
state of most significant relationship. The interplay of the two
factors mentioned in Comment b-- protection of the justified
expectations of the parties and implementation of the relevant policies
of the state with the dominant interest in the determination of the
particular issue--leads to the rule that a marriage which meets the
requirements of the state where the marriage was contracted will
everywhere be recognized as valid except when to do so would violate the
strong policy of another state which had the most significant
relationship to the spouses and the marriage at the time of the
marriage. To date, a marriage has been held invalid in such
circumstances only when it violated a strong policy of a state where at
least one of the spouses was domiciled at the time of the marriage and
where both made their home immediately thereafter. Such a state may have
an interest sufficiently great to justify the invalidation of a marriage
which meets the requirements of the state where it was contracted. Only
a strong policy of this state, however, would justify application of its
rule to invalidate a marriage. Upholding the validity of marriages is a
basic policy in all states, and the courts of the state of most
significant relationship would not themselves invalidate an out-of-state
marriage between local domiciliaries which met the requirements of the
state where it was contracted except when required to do so by a strong
policy. As to the criteria for determining whether a policy is a strong
one, see Comment k.
k. Marriage contrary to strong policy of state of
most significant relationship. For reasons stated in Comment j, a
marriage which satisfies the requirements of the state where it was
contracted will be held valid everywhere except when its invalidation is
required by the strong policy of another state which had the most
significant relationship to the spouses and the marriage at the time of
the marriage. To date, as stated in Comment j, a marriage has only been
invalidated when it violated a strong policy of a state where at least
one of the spouses was domiciled at the time of the marriage and where
both made their home immediately thereafter. The forum will apply its
own legal principles in determining whether a given policy is a strong
one within the meaning of the present rule.
The problem arises in a situation where the marriage
does not satisfy the requirements of the state of most significant
relationship and where as a result the marriage would have been invalid
if it had been contracted in that state. The task of the forum is to
determine whether the requirement or requirements that were not
satisfied represent a sufficiently strong policy of the state of most
significant relationship to warrant invalidation of the marriage. The
prime question for the forum to determine in that connection is whether
the courts of the state of most significant relationship would
themselves have invalidated the marriage if the question had come before
them. For if these courts would not have invalidated the marriage, it is
apparent that in the eyes of these courts themselves the policy
represented by the local rule or rules that were not satisfied is not
sufficiently strong to warrant invalidation of the marriage. The forum
should not give greater weight to this policy than would the courts of
the state of most significant relationship.
In determining whether the courts of the state of most
significant relationship would have invalidated the marriage the forum
will first consult the statutes of that state. Some states have statutes
which invalidate in specified circumstances the out-of-state marriage of
local domiciliaries. If the marriage comes within the provisions of such
a statute, it is clear that it would be held invalid in the state of
most significant relationship and the forum will hold it invalid
likewise, subject to the considerations stated below. If the state of
most significant relationship has no such statute, the forum will next
inquire whether the marriage would be held invalid by the courts of that
state by application of their choice-of-law rules. If it can be
determined from the prior decisions of these courts that they would have
held the marriage invalid, the forum will do likewise, subject again to
the considerations stated below. If, however, no clear answer can be
obtained from the statute or from the decisions of the courts of the
state of most significant relationship, the forum must use its own
judgment in determining whether the rule that was not satisfied
represents a sufficiently strong policy of the state of most significant
relationship to warrant invalidation of the marriage. Rarely, if ever,
would the forum find such a policy in a rule relating to formalities
(see Comments f-g). Indeed in the absence of explicit statute or
judicial precedent in the state of most significant relationship, the
only rules that the forum would be likely to find embody a sufficiently
strong policy of that state to warrant invalidation of an out-of- state
marriage are rules which prohibit polygamous marriages, certain
incestuous marriages, or the marriage of minors below a certain age. The
fact that the marriage was incestuous under the local law of the state
of most significant relationship would not of itself be enough to cause
the forum to invalidate the marriage. In the absence of explicit statute
or judicial precedent to the contrary in the state of most significant
relationship, the forum would be unlikely to find that a rule against
incest represented a sufficiently strong policy to warrant invalidation
of the marriage except where the persons involved were in so close a
relationship as brother and sister and perhaps uncle and niece.
The time of the bringing of the action which questions
the validity of the marriage may have an important bearing upon whether
a strong policy of the state of most significant relationship is
involved. If the action is brought at a time when both spouses are still
domiciled in that state, the interest of that state in the spouses is
apparent and its strong policy may be involved in the circumstances
discussed above. The situation may well be different, however, if the
action involving the validity of the marriage is brought at a time when
both of the spouses have moved from the state. Here the interest of this
state in the application of its invalidating rule would, usually at
least be less than it was at the time when the spouses were still in the
state. It is unlikely that, unless required to do so by statute, the
courts of this state would invalidate the marriage by application of
their local rule. And even if these courts would do so, whether by
reason of statute or otherwise, it is probable that the forum would find
that by reason of the removal of the spouses the state no longer had a
sufficient interest in the application of its rule to warrant
invalidation of the marriage.
Illustrations:
1. H and W, uncle and niece by the half blood, are
domiciled in state X under whose local law their marriage would be
incestuous and void. They are married in state Y, where marriages
between uncles and nieces are not invalid, and then return immediately
to X. Some years later, while H and W are still domiciled in X, the
validity of their marriage is brought into question in a court of state
Z. The question for the Z court to determine is whether the policy
embodied in the X prohibition against marriages between uncles and
nieces embodies a sufficiently strong policy to warrant invalidation of
the marriage. The Z court will hold the marriage valid if it concludes,
by reason of judicial precedent or otherwise, that the X court would do
the same. On the other hand, the Z court will hold the marriage invalid
if it concludes that the X courts would do so.
2. H and W, who are domiciled in state X at the time,
desire to marry. They cannot lawfully do so in X since W had only
recently been divorced from her first husband and under X local law a
remarriage by a divorced person within one year after the divorce is
"null and void." Accordingly, H and W go to state Y, which has no
similar prohibition, and there are married. They return immediately to X
and live there as husband and wife for a period of years. Eventually, H
and W move to Y where H dies and W seeks to be appointed administratrix
of his estate. Under Y local law, W is entitled to this appointment if
she is H's lawful wife but not otherwise. The question for the Y court
to decide is whether invalidation of the marriage is required by a
strong policy of X. If the X courts would not have invalidated the
marriage, the Y court will not do so. But even if the X courts would
have invalidated the marriage, perhaps on the ground that this result
was required by statute, the Y court must still determine for itself
whether a sufficiently strong policy of X is involved to warrant this
result. The fact that H and W have moved away from X and that X
accordingly has little interest in them would strongly support the view
that no sufficiently strong policy of X is presently involved.
Comment:
l. Remarriage after one or both parties forbidden
to remarry. A statute of the divorce state, or the divorce decree
itself, may forbid one or both of the parties to marry again for a
certain time or during the life of the other party. It is possible that,
as a result, the marriage tie is not actually severed at the time of the
divorce decree. This is so in the case of a decree nisi, or
interlocutory decree, which does not become absolute until after further
proceedings or the lapse of a certain time. This is also so of a divorce
decree rendered in a state where such a decree does not become final
until the time to appeal therefrom has expired. In such situations,
neither party ceases to be married until the occurrence of further
proceedings or the lapse of the given time. Until then, neither party
can marry again in any state, since the marriage would be bigamous.
More frequently, the prohibition against remarriage
contained in the statute of the divorce state, or in the divorce decree
itself, does not affect the finality of the divorce decree, but is
intended only to prohibit one or both of the parties from remarrying for
a given period of time. Such a prohibition will not affect the validity
of a remarriage contracted in another state except when the divorce is
rendered in the state where the party against whom the prohibition was
directed was domiciled at the time of and immediately following the
remarriage. In such a case, the remarriage will be invalid, even though
it satisfies the requirements of the state where it was contracted, if,
but only if, this result is required by the strong policy of the state
where the divorce was rendered. Except when required to do so by
statute, the courts of the divorce state would rarely apply a local
prohibition of this sort to invalidate an out-of- state marriage. If the
prohibition was directed against one party alone, such as when the
guilty party is forbidden to marry his paramour, the courts of the
divorce state would be motivated in part by the notion that such a
prohibition should be strictly construed since it is in the nature of a
penalty. But even when the prohibition cannot properly be considered a
penalty, such as when it prohibits both parties from remarrying and is
intended to protect the institution of marriage by deterring quick
remarriages, the courts of the divorce state would rarely apply their
local rule to invalidate an out- of-state remarriage by one of the
parties that was contracted within the forbidden time. These courts
would rarely apply their rule, because they usually would find that the
policy embodied in the rule is not sufficiently strong to outweigh the
general policy which favors upholding the validity of marriages. But
even if the courts of the divorce state would have applied their rule to
invalidate the marriage, the forum would still be free to refuse to do
so on the ground that in its view the policy underlying the rule was not
sufficiently strong to justify such action.
m. Choice-of-law rules of state of most significant
relationship. As stated above (see Comment k), the forum will look
to the choice-of-law rules of the state of most significant relationship
for whatever light these rules may shed on whether invalidation of the
marriage is required by a strong policy of that state. The fact that
these courts would not have applied their rule to invalidate the
marriage provides conclusive evidence that no sufficiently strong policy
of this state is involved. On the other hand, the fact that these courts
would have invalidated the marriage by application of their rule
provides persuasive evidence that the rule does embody a policy of the
required sort (compare § 8, Comment k).
On the other hand, this is not a situation where the
forum applies the choice- of-law rules of the state of most significant
relationship. The fact that the courts of that state would have applied
their rule to invalidate the marriage does not mean that the forum
should necessarily do so. The forum should only apply this rule to
invalidate the marriage if it is its own judgment that the rule embodies
a sufficiently strong policy to warrant doing so (see Comment k).
n. When rule of two or more states is the same.
When certain contacts are located in two or more states with identical
local law rules on the issue in question, the case will be treated for
choice-of-law purposes as if these contacts were grouped in a single
state.
REPORTER'S NOTE
Comments e-i: A marriage which satisfies the
requirements of the state where it was contracted will usually be held
valid everywhere. See 2 Beale, Conflict of Laws 665-674 (1935);
Ehrenzweig, Conflict of Laws 377 (1962); Goodrich, Conflict of Laws
228-229 (Scoles, 4th ed. 1964); Stumberg, Conflict of Laws 279-280 (3d
ed. 1963); Annotation, 71 A.L.R.2d 687 (1960).
Statutes in a number of States provide that a
marriage, valid where contracted, is valid within the State. See
Cal.Civ.Code Ann., 63 (1954); Idaho Code Ann. § 32-209 (1948);
Kan.Gen.Stat. Ann. § 23-115 (1964); Ky.Rev.Stat. § 402.040 (1959);
Neb.Rev.Stat. § 42-117 (1968); N.M.Stat. Ann. § 57-1-4 (1953); S.D.Code
§ 14.0103 (1939); Utah Code Ann. § 30-1-4 (1953).
Marriage by proxy: Whether a marriage can be
celebrated by proxy is a question which relates to formalities. Such
marriages have been upheld when valid in the state where celebrated. See
In re Valente's Will, 18 Misc.2d 701, 188 N.Y.S.2d 732 (Surr. 1959);
Goodrich, Conflict of Laws 230 (Scoles, 4th ed. 1964); Lorenzen,
Marriage by Proxy and the Conflict of Laws, 32 Harv.L.Rev. 473 (1919); 1
Rabel, Conflict of Laws 242-243 (2d ed. 1958); Stumberg, Conflict of
Laws 282 (3d ed. 1963); Annotation, 170 A.L.R. 947 (1949).
Marriage by correspondence: To date, two cases have
held a marriage by correspondence valid as to form which complied with
the requirements of the state from which the acceptance of the offer of
marriage was dispatched. Great Northern Ry. Co. v. Johnson, 254 F. 683
(8th Cir. 1918); Commonwealth v. Amann, 58 Pa.D. & C. 669 (1947). In Ray
v. Ray, 193 Misc. 131, 83 N.Y.S.2d 126 (S.Ct.1948), a marriage by
correspondence was held invalid because it did not comply with the
requirements as to form of the state from which it was presumed the
acceptance of the offer of marriage had been dispatched; the marriage
did comply, however, with the requirements of the state in which the
acceptance of the offer had presumably been received. This last decision
would appear unfortunate in view of the policy favoring the validity of
marriages.
Marriage on board a vessel: The general rule is that
the law governing the validity of a marriage on board a vessel on the
high seas is the local law of the vessel's flag. When the flag is that
of the United States, this rule will not determine the applicable law,
since in this country there is no national law of marriage. To date, the
validity of a marriage celebrated at sea on a vessel flying the flag of
the United States has been determined by application of the local law of
some State or federal territory. On this score, three possibilities have
been suggested by the few cases in point: the applicable law may be the
local law of the state of (a) the shipowner's domicil or (b) the ship's
registry or (c) the parties' domicil. The majority of the opinions are
inconclusive because the courts found it possible to sustain the
marriage without expressly deciding whether the marriage must comply
with the requirements of a particular one of these three States (see, e.
g., Bolmer v. Edsall, 90 N.J.Eq. 229, 106 A. 646 (1919); Hynes v.
McDermott, 7 Abb.N.Cas. 98, aff'd on other grounds 91 N.Y. 451 (1883);
Johnson v. Baker, 142 Or. 404, 20 P.2d 407 (1933). In Fisher v. Fisher,
250 N.Y. 313, 165 N.E. 460 (1929), however, the marriage was sustained
by reference to the local law of the shipowner's domicil; a contrary
result would have been reached had the local law of the ship's registry
been applied. The local law of the state which was both the state of the
parties' domicil and the place where they intended to live was applied
to invalidate a marriage performed on the high seas for the express
purpose of evading the prohibitions of this law. Norman v. Norman, 121
Cal. 620, 54 P. 143 (1898).
A similar problem may arise in the United Kingdom
where there is but one flag for three territorial subdivisions (England,
Northern Ireland and Scotland) with different systems of law.
Marriage before a consul: The practice of United
States consuls is to be present officially only at such marriages as
comply with the requirements of the country where celebrated. See Parry,
A Conflicts Myth: The American "Consular" Marriage, 67 Harv.L.Rev. 1187
(1954).
A federal statute provides: "Marriages in the presence
of any consular officer of the United States in a foreign country,
between persons who would be authorized to marry if residing in the
District of Columbia shall be valid for all intents and purposes . . ."
12 Stat. 79, 22 U.S.C. 1172 (1947). This statute has not been applied
literally. See Parry, supra.
Comment g: See Gallegos v. Wilkerson, 79 N.M.
549, 445 P.2d 970 (1968).
Comment i: Authority involving the problem
posed by this Comment is sparse. Court opinions frequently state by way
of dictum that a marriage which does not comply with a mandatory
requirement of the state where it was contracted is invalid everywhere.
A number of cases, however, have arisen in a state where at least one
spouse was domiciled at the time of marriage and where both made their
home thereafter and where the marriage in question complied with the
substantive requirements of that state but did not comply with the
substantive requirements of the state where it was contracted. In the
majority of these cases, the marriage was held valid. Anonymous v.
Anonymous, 46 Del. 458, 85 A.2d 706 (1951); Succession of Hernandez, 46
La.Ann. 962 (1894); Capossa v. Colonna, 95 N.J.Eq. 35, 122 A. 378
(1923), aff'd 96 N.J.Eq. 385, 124 A. 760 (1924); Wilcox v. Wilcox, 46
Hun. 32 (N.Y.1887); Bays v. Bays, 105 Misc. 492, 174 N.Y.S. 212
(S.Ct.1918); In re Palmer's Estate, 192 Misc. 385, 79 N.Y.S.2d 404
(Surr.1948), adhered to on rearg. 193 Misc. 241, 82 N.Y.S.2d 818
(Surr.1948), aff'd 275 App.Div. 772, 90 N.Y.S.2d 179 (4th Dep't 1949);
Portwood v. Portwood, 109 S.W.2d 515 (Tex.Civ.App.1937); cf. Sullivan v.
American Bridge Co., 115 Pa. Super. 536, 176 A. 24 (1935); Phillips v.
Gregg, 10 Watts (Pa.) 158, 36 Am.Dec. 158 (1840); De Fur v. De Fur, 156
Tenn. 634, 4 S.W.2d 341 (1928); see Goodrich, Conflict of Laws 229 (Scoles,
4th ed. 1964); Note, 49 Colum.L. Rev. 693 (1949). In a few instances,
however, the courts of the state of common domicil have held invalid a
marriage, good under their own local law, on the ground that it did not
meet the substantive requirements of the state where the marriage was
contracted. Cruickshank v. Cruickshank, 193 Misc. 366, 82 N.Y.S.2d 522
(S.Ct.1948); Kitzman v. Kitzman, 167 Wis. 308, 166 N.W. 789 (1918).
For a recent case holding invalid a marriage which did
not meet the requirements of either the state of celebration or the
state of common domicil, see Walker v. Hildenbrand, 243 Or. 117, 410
P.2d 244 (1966).
No case has been found where the courts of a third
state have been required to determine the validity of a marriage which
did not comply with some mandatory requirement of the state where it was
contracted but which would nevertheless be held valid by the courts of
the state of most significant relationship. Support for the position
adopted in this Section that such a marriage would be held valid in a
third state can be found in Taczanowska v. Taczanowski, [[1957] P. 301,
2 All E.R. 563 (formalities, dictum).
Compare Hooper v. Hooper, [1959] 1 W.L.R. 1021, which
granted annulment of a marriage contracted in Iraq between British
nationals domiciled in England because of a failure to publish the
marriage banns as required by English local law. The court found that
under Iraqi law the validity of a marriage celebrated in that country
between British nationals depended upon English local law.
Comments j-k: Whether a marriage that would be
held invalid by the courts of the state of most significant relationship
will also be held invalid by the courts of other states is a question
that to date has arisen but rarely. Cases holding the marriage invalid
in such circumstances include People v. Steere, 184 Mich. 556, 151 N.W.
617 (1915); Meisenhelder v. Chicago & N. W. Ry. Co., 170 Minn. 317, 213
N.W. 32 (1927); Hall v. Industrial Commission, 165 Wis. 364, 162 N.W.
312 (1917). Cases where the marriage was held valid in such
circumstances can be explained on the ground that no sufficiently strong
policy of the state of most significant relationship was involved. See,
e. g., Boehm v. Rohlfs, 224 Iowa 226, 276 N.W. 105 (1937); In re Estate
of Ommang, 183 Minn. 92, 235 N.W. 529 (1931) (involving essentially the
same facts as those stated in Illustration 2).
So far as is known, no American court has invalidated
a marriage which complied with the requirements of the state where it
was contracted, except by application of the local law of the state
where at least one spouse was domiciled at the time of marriage and
where both made their home thereafter. To date, the courts of the state
of one party's domicil at the time of marriage, but where the parties
did not make their home thereafter, have refrained from applying their
local law to invalidate the marriage. See, e. g., People ex rel. Schutt
v. Siems, 198 Ill.App. 342 (1916); State v. Ross, 76 N.C. 242 (1877);
cf. Garrett v. Chapman, -- Or. --, 449 P.2d 856 (1969) (quoting § 131 of
Tent. Draft No. 4, 1957); Owen v. Owen, 178 Wis. 609, 190 N.W. 363
(1922); Taintor, Marriage to a Paramour After Divorce, 43 Minn.L.Rev.
889 (1959).
Cases where an out-of-state marriage was invalidated
by the courts of the state of common domicil include Metropolitan Life
Insurance Co. v. Chase, 294 F.2d 500 (3d Cir. 1961) (formalities
--common law marriage); Catalano v. Catalano, 148 Conn. 288, 170 A.2d
726 (1961) (incest); Davis v. Seller, 329 Mass. 385, 108 N.E.2d 656
(1952) (insanity); Wilkins v. Zelichowski, 26 N.J. 370, 140 A.2d 65
(1958) (nonage); Annotation, 71 A.L.R.2d 687 (1960). On the other hand,
the courts of the common domicil have held valid a marriage, which was
incestuous under their local law, on the ground that it satisfied the
requirements of the state of celebration. In re May's Estate, 305 N.Y.
486, 114 N.E.2d 4 (1953); cf. Petition of Lieberman, 50 F.Supp. 121 (E.D.N.Y.
1943).
See generally 2 Beale, Conflict of Laws 678-683
(1935); Goodrich, Conflict of Laws 228-237 (Scoles, 4th ed. 1964);
Johnson, The Validity of a Marriage under the Conflict of Laws, 38
N.Dak.L.Rev. 442 (1962); Stumberg, Conflict of Laws 279- 283 (3d ed.
1963); Taintor, What Law Governs the Ceremony, Incidents and Status of
Marriage, 19 B.U.L. Rev. 353 (1939); Taintor, Effect of Extra-State
Marriage Ceremonies, 10 Miss.L.J. 105 (1938); Taintor, Marriage in the
Conflict of Laws, 9 Vand.L.Rev. 607 (1956); Annotation, 71 A.L.R.2d 687
(1960).
Comment l: As to the situation where a party
marries before his divorce becomes final, see 2 Beale, Conflict of Laws
683-685 (1935); Ehrenzweig, Conflict of Laws 384-385 (1962); Goodrich,
Conflict of Laws 234-235 (Scoles, 4th ed. 1964); Stumberg, Conflict of
Laws 284-285 (3d ed. 1963). Recent cases in point include Olsen v.
Olsen, 27 Misc.2d 555, 209 N.Y.S.2d 503 (S.Ct. 1960); Popp v. Roth, 9
Utah 2d 96, 338 P.2d 123 (1959); In re Ferguson's Estate, 25 Wis.2d 75,
130 N.W.2d 300 (1964).
Some states provide means for validating a marriage
celebrated after the handing down of a divorce decree but prior to the
time that the decree became final. So the California courts are
authorized by statute to enter a final decree nunc pro tunc "as of the
date when the same could have been given or made by the court if applied
for" (Cal.Civ.Code § 133). Such a nunc pro tunc decree has been held to
validate a marriage previously celebrated in California (Bannister v.
Bannister, 181 Md. 177, 29 A.2d 287 (1942)) or in another state. Cahoon
v. Pelton, 9 Utah 2d 224, 342 P.2d 94 (1959). Contra: Graves v. Carter,
207 Ga. 308, 61 S.E.2d 282 (1950). By way of further example, a
Massachusetts statute (Mass.Gen.Laws, c. 207, § 6) provides for the
validation of a marriage contracted by one party in good faith in the
belief that the other party has been validly divorced once the
impediment to the marriage has been removed, if the parties continue
thereafter to live together as man and wife. This statute has been
applied to validate an out-of- state marriage celebrated after a
Massachusetts divorce. Arcand v. Flemming, 185 F.Supp. 22 (D.Conn.1960),
Russo v. Art Steel Co., 21 A.D.2d 942, 251 N.Y.S.2d 238 (3d Dep't 1964).
A prohibition against remarriage directed to one party
alone will usually not be applied in the divorce state or elsewhere to
invalidate a marriage celebrated in another state. See 2 Beale, Conflict
of Laws 692 (1935); Ehrenzweig, Conflict of Laws 387 (1962); Goodrich,
Conflict of Laws 234-235 (Scoles, 4th ed. 1964); Stumberg, Conflict of
Laws 284-285 (3d ed. 1963). For a case where a court of the divorce
state invalidated a marriage by reason of a prohibition directed to both
parties to the divorce, see Lanham v. Lanham, 136 Wis. 360, 117 N.W. 787
(1908).
In a number of cases, the divorce state has
invalidated an out-of-state marriage by application of a local statutory
provision which prohibited the guilty party to a divorce from marrying
his paramour. In these cases, the guilty party was domiciled in the
divorce state at the time of the divorce and of the remarriage and
remained domiciled there with his new spouse thereafter. See, e. g.,
Succession of Gabisso, 119 La. 704, 44 So. 438 (1907); In re Stull's
Estate, 183 Pa. 625, 39 A. 16 (1898); Maurer v. Maurer, 163 Pa.Super.
264, 60 A.2d 440 (1948); Pennegar v. State, 87 Tenn. 244, 10 S.W. 305
(1889); Bennett v. Anderson, 20 Tenn.App. 523, 101 S.W.2d 148 (1937);
see Taintor, Marriage to a Paramour After Divorce, 43 Minn.L.Rev. 889
(1959).
§ 284. Incidents Of Foreign Marriage
A state usually gives the same incidents to a foreign marriage,
which is valid under the principles stated in § 283, that it gives to a
marriage contracted within its territory.
Comment:
a. Scope of section. A marriage, like any other
status, is important primarily on account of the incidents which arise
therefrom. Among the normal incidents of a marriage are that the spouses
may lawfully cohabit as man and wife and that the issue of their
marriage will be legitimate. Other important incidents are the marital
property interests which each spouse may have in the other's assets (see
§ § 233-234, 257-259) and the forced share or intestate share which the
surviving spouse has in the estate of the deceased spouse (see § § 236,
241, 242, 260, 265). Still another incident is that a party to the
marriage is the "spouse" of the other, or as the case may be, the
"husband," "wife" or "widow " of the other within the meaning of these
terms when used in a will, trust or other instrument.
b. A state will give the same incidents to a
marriage, which is valid under the principles stated in § 283, that it
gives to a marriage validly contracted within its own territory, except
as stated in Comment c. This is true even though the marriage would have
been invalid in the state if it had been contracted there. So a state
will usually permit the parties to a valid foreign marriage to cohabit
within its territory even though the marriage would have been invalid,
perhaps by reason of the parties' relationship to one another, if it had
been contracted in the state. Similarly, the courts of the state will
usually give one of the spouses to a valid foreign marriage the same
marital property interests or the same forced share, or intestate share,
in the local assets of the other spouse that it would have given the
spouse if the marriage had been contracted in the state. Such action by
a state is called for by the factors listed in Subsection (2) of § 6.
c. When giving of incident would be contrary to
strong policy of state. A state will not give a particular incident to a
foreign marriage when to do so would be contrary to its strong local
policy. The state will not do so even though the marriage is valid in
the state where it was contracted and even though the incident in
question would be granted in that state. A denial of a particular
incident on the grounds stated in this Comment does not deny the
validity of the marriage.
The mere fact that the marriage itself would have been
invalid if contracted in the state is not a sufficient ground for the
denial of a particular incident. An incident should not be denied except
when such denial is required by a strong policy of the state.
A state may deny one incident to a foreign marriage
and at the same time allow the marriage other incidents. So a state may
prohibit the parties to a polygamous marriage from cohabiting within its
territory. Yet it may recognize the legitimacy of the children of such a
marriage and the economic interests of the spouses, such as a right to
support on the part of one spouse against the other and the marital
property interests or forced share, or intestate share, of one spouse in
the local assets of the other. Again, a state may not permit a wife to
acquire her husband's nationality, and yet may permit the spouses to
cohabit within its territory and enjoy normal economic interests in each
other's property.
d. Invalid foreign marriage. On occasion, a
state will give the same incident to an invalid foreign marriage that it
would give to a marriage that has been validly contracted within its
territory. This may be done when the foreign marriage complies with the
local requirements.
A situation in point is where a man, A, dies intestate
while domiciled in state X after having gone through a marriage ceremony
with a woman, B, in state Y. B now seeks an intestate share in A's
movables on the ground that she is A's widow. Under the rule of § 260,
the X rules of intestacy determine the person, or persons, who shall
share in A's movables. Assuming that under the X rules a widow is
entitled to an intestate share in her deceased husband's movables, the
question then becomes whether B is A's "widow" within the meaning of
these rules. Usually these rules, as interpreted by the X courts, will
make the answer to this question depend upon whether A and B were
validly married under the law selected by application of the rule of §
283. On the other hand, it must be remembered that the X rules of
intestacy control, and it is possible that the word "widow" in these
rules refers to one whose marriage complied with the requirements of the
X marriage law, or to one whose marriage in the alternative either
complied with the X requirements or else is valid under the law selected
by application of the rule of § 283. Similarly, the question may arise
whether a woman, who was married in state Y, is a "widow" within the
meaning of the workmen's compensation act of state X. Again the X
statute, as interpreted by the X courts, will usually make the answer to
this question depend upon whether the marriage is valid under the law
selected by application of the rule of § 283. But it is the X workmen's
compensation act which controls and it is possible that the word "widow"
in this act refers to one whose marriage complied with the X marriage
requirements or to one whose marriage in the alternative either complied
with the X marriage requirements or else is valid under the law selected
by application of the rules stated in this Topic. A similar question may
arise in a case involving the construction of a will or other legal
instrument. So B, who had previously gone through a marriage ceremony
with A in state Y, may later claim that she is A's widow within the
meaning of the will of C, A's brother, who died domiciled in state X.
Under the rule of § 264, X law governs the construction of C's will
insofar as it concerns movables, and it may be that the X courts would
hold that, in the absence of evidence of a contrary intention, the word
"widow" in C's will referred to a person whose marriage to B complied
with the requirements of X marriage law or to one whose marriage in the
alternative either complied with the X marriage requirements or is valid
under the law selected by application of the rule of § 283.
REPORTER'S NOTE
Comment b: See generally 2 Beale, Conflict of
Laws 698-702 (1935); Ehrenzweig, Conflict of Laws 387-389 (1962);
Goodrich, Conflict of Laws 239- 243 (Scoles, 4th ed. 1964); Stumberg,
Conflict of Laws 290 (3d ed. 1963); Taintor, Marriage in the Conflict of
Laws, 9 Vand.L.Rev. 607, 614-616 (1956).
Comment c: Cases permitting a party
to a polygamous marriage to inherit the local assets of a deceased
spouse include In re Dalip Singh Bir's Estate, 83 Cal.App.2d 256, 188
P.2d 499 (1948); Yew v. Attorney General, [1924] 1 D.L.R. 1166.
In Baindail v. Baindail, [1946] P. 122, a polygamous
marriage between Hindus living in India was recognized in England to the
extent of invalidating a subsequent monogamous marriage in England
between the Hindu husband and an English girl. In Royal v. Cudahy
Packing Co., 195 Iowa 759, 190 N.W. 427 (1922), the wife of a Mohammedan
marriage was allowed to recover as a widow under a workmen's
compensation act.
For cases refusing to permit enjoyment of a particular
incident, see In re Takahashi's Estate, 113 Mont. 490, 129 P.2d 217
(1942) (inheritance); State v. Bell, 7 Baxt. (Tenn.) 9 (1872)
(cohabitation).
See generally the secondary authorities cited in the
note to Comment b, supra.
Comment d: See Albina Engine and Machine Works
v. O'Leary, 328 F.2d 877 (9th Cir. 1964) (Longshoremen's and Harbor
Workers Act); Guevara v. Inland Steel Co., 120 Ind.App. 47, 88 N.E.2d
398 (1949), pet. to transfer den. 228 Ind. 135, 90 N.E.2d 347 (1950)
(workmen's compensation); Toler v. Oakwood Smokeless Coal Corp., 173 Va.
425, 4 S.E.2d 364 (1939) (workmen's compensation); Goodrich, Conflict of
Laws 238 (Scoles, 4th ed. 1964).
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