ABSTRACT

Through this Project I would like to through

some light on PIL and Family Law. Private
International Law is emerging branch of
law in todays era of globalization, people
are crossing national boundaries for various
purposes and thus subjugate themselves to
foreign legal systems. PIL plays are vital

PRIVATE role in settling disputes where parties are

foreigners.

Submitted to: Dr.K. Parameswaran

INTERNATIONAL Submitted By: 08A043

LAW AND FAMILY

LAW
GUJARAT NATIONAL LAW UNIVERSITY
 PRIVATE INTERNATIONAL LAW AND FAMILY LAW

TBALE OF CONTENTS

Table of Latin Terms and Abbreviations 2

1. Introduction 3

2. The Concept of Domicile and Its Relevance 4

2.1 Meaning and definition of Domicile 5

3. PIL and Matrimonial Disputes 7

3.1Couts Role and Duty in Matrimonial Cases..7

3.2 Conflict of Law Rules in Unmarried Cases8

3.3The Status of Foreign Law.10

3.4Harmonization...11

4. Conclusion....................................................................................................11

5. Bibliography.12

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LATIN TERMS

1. Lex Domicilii:

The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws.

2.LexLoci Contractus:

The lex loci contractus is the Latin term for "law of the place where the contract is made" in
the Conflict of Laws

3. Lex Loci Solutionis:

The lex loci solutionis is the Latin term for "law of the place where relevant performance
occurs" in the Conflict of Laws.

4.Lex Loci Celebrationis:

The lex loci celebrationis is the Latin term for "law of the place where the marriage is
celebrated" in the Conflict of Laws.

5.Lex Situs:

The Lex Situs is the Latin term for law of the place or law of the place in which property is
situated for the purposes of the Conflict of laws.

6.Lex Fori:

In Conflict of Laws, the Latin term lex fori literally means the "law of the forum".

FEW ABBREVIATIONS

1. EU European
Union

2. PIL Private International Law

3. CEDAW Convention on the Elimination of Discrimination against

Women

4. EC European Council

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PRIVATE INTERNATIONAL LAW AND FAMILY LAW

INTRODUCTION

Private International law is emerging international law these days as due to drastic change in
world economies. Earlier people used to move within state for search of job etc. and mostly
used to settle there but due to globalization people are moving across state i.e. moving to other
country for various reasons. The role of Private International law comes into picture where
disputes arises as parties are of different states(here state means Nation).private international
law is mostly applicable to individual disputes unlike Public International Law which is based
on treaties and conventions recognized by various states.

As both the parties are of different states which means one of the party is an alien or both
parties are alien to the place where cause of action arises or parties wants to settle the matter
.PIL comes into picture because it is a set of procedural rules that determines which legal
system and which jurisdiction apply to a given dispute. Three basic and most essential
constituents of PIL are as follows:

Jurisdiction whether the forum court has the power to resolve the dispute at hand
Choice of law the law which is being applied to resolve the dispute
Foreign judgments the ability to recognize and enforce a judgment from an external
forum within the jurisdiction of the adjudicating forum.

Heres the example as how important PIL is and when it comes into pictures, for example, in
case of Divorce, an Egyptian man with two wives, both of whom he married in Cairo, who
moves to Paris. Both wives have children; the older wifes children are grown, while the
younger wifes son is quite young. Both wives want a divorce when it appears that their
husband is involved with another woman. One wants to return to Egypt, while the other wants
to remain in Paris. What complications arise around issues of terminating one or both
marriages?

Thus every court have to pass through following stages while hearing a matter where foreign
element is present.

1. The court must first decide whether it has jurisdiction and, if so, whether it is the
appropriate place/forum to adjudicate the matter?

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2. The next step is the classification of the cause of action into its component legal
categories like as if in case of divorce validity of marriage may arise, whether the lex
forum should recognize a marriage which is solemnized in other state etc. Aspects of
procedural and substantive laws are taken into account.
3. Each legal category is having choice of law and which law to be applicable. A key
element in this may be the rules of renvoi(send back)
4. Once the applicable law is decided, that law must be proved before the forum court and
applied to reach a judgment.
5. The successful party must then enforce the judgment which will first involve the task
of securing cross-border recognition of the judgment.

Private International Law is of more importance in family matters like divorce, adoption,
inheritance of property, movable or immovable etc. IN Family disputes the most important
aspect which is taken into account is of domicile i.e. the parties are domicile .In Era of
globalization importance of Private International Law cannot be undermined specially in
family disputes which are increasing day by day

THE CONCEPT OF DOMICLE AND ITS RELEVANCE

Personal law may be defined as the law of the country to which a person primarily belongs,
especially for the purposes of various matters of family law and succession. In other words, the
personal law of an individual determines such matters as:
(a) The essential validity of a marriage;
(b) The effect of marriage on the proprietary rights of husband and wife;
(C) wills of movables and succession to movables;
(d) Jurisdiction in divorce and nullity of marriage, and to a certain extent, legitimacy of children
and adoption; and
(e) Certain matters of revenue law.

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Meaning and Definition of Domicile

The meaning and definition of domicile were elucidated by the Private
International Law Committee in its First Report in 1954 as follows:
A persons domicile may be defined as meaning the country (in the sense of a territorial unit
possessing its own system of law) in which he has his home and intends to live permanently.
The law regards every person as having a domicile, whether it be the domicile of origin which
the law confers on him at birth, or the domicile of choice which he may subsequently acquire.
The two requisites for the acquisition of a fresh domicile are: (1) residence; and (2) intention
to remain permanently, and both these elements must be present before a new domicile can be
acquired. If a person, having acquired domicile of choice, abandons it without acquiring a fresh
one, the law regards his domicile of origin as having revived until a fresh domicile of choice is
acquired, even though he may never in fact have returned to his domicile of origin.

Hence, according to this statement, domicile may be defined as the legal system within whose
jurisdiction an individual makes his or her home, intending to remain there permanently. It can
be seen that the cornerstone underlying the English concept of domicile is permanent home.

For Purpose of better understanding of domicile in respect of Private International Law, it can
be categorised as follows:

1. Domicile of origin

The domicile of origin is the domicile a person acquires at birth, and remains with that person
thereafter until it is replaced by a domicile of dependency or domicile of choice. A posthumous
child, that is, a child born after his or her fathers death, derives his or her domicile of origin
from that of the mother. As for the domicile of origin of a foundling, this is derived from the
country where he or she is found.

2. Domicile of dependency

It is a well settled rule that no dependent person can acquire a domicile of choice. The domicile
of such persons depends on, and changes with, the domicile of the person on whom they are
legally dependent. Two classes of persons must be examined, namely, children under the age
of 16 and married women. As for mentally disordered persons, it suffices to note that, in
general, the domicile of such a person depends on the person to whose care a mentally
disordered person has been entrusted.

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Example: children who are still minor and age of minority differs from state to state.

3. Domicile of choice

Every independent person is capable of acquiring a domicile of choice by residing in a country

other than the country of origin, with the intention of remaining there permanently. Both the
elements of residence and intention must be satisfied before English law can recognise a change
of domicile. Although these elements are considered distinct, they are, as the remainder of this
section will show, interrelated. A domicile of choice is acquired by an individual residing in a
country, other than the country of his or her origin, with the intention of remaining there
permanently.
The onus of proving the acquisition of such a domicile is on the party alleging it, and the burden
of proof is a heavy one. Residence is a question of fact. It has to exist, but need not be
prolonged. However, it must indicate a real link between the individual and his or her alleged
new homeland. Intention to reside in the new homeland must be permanent or indefinite. It
does not suffice to have the intention conditional upon the occurrence of an act. Older case law
seems to impose an almost irrefutable presumption against the acquisition of a domicile of
choice. More recent cases appear to make a distinction between a likely and unlikely
contingency. Where the contingency is not sufficiently clear, it will not prevent the acquisition
of a domicile of choice. On the other hand, where it is clear, the court looks at the likely
possibility of it happening. If so, this will prevent the acquisition of a domicile of choice.

4. Abandonment of domicile

A dependent person will, on independence, retain his or her domicile of dependency as a

domicile of choice until it is abandoned at any time thereafter. A domicile of choice will be
abandoned when a person departs from a country and the intention to return has withered away.
A domicile of origin endures until a domicile of choice is acquired. Once a domicile of choice
is abandoned, the domicile of origin revives until another domicile of choice is acquired.

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PIL AND MATRIMONIAL DISPUTES

Meaning and Definition of Marriage

A marriage, as understood in Christendom, may be defined as the voluntary union for life of
one man and one woman, to the exclusion of all others. Where one of the parties does not
voluntarily consent to the marriage, the marriage will be declared invalid. The union must be
of one biological man and one biological woman, otherwise it will be void. With the advent of
English Legal system in India Marriage is more or less has become a contract.

Courts Role and Duty in Matrimonial Cases

In divorce cases, when a court is attempting to distribute marital property, if the divorcing
couple is local and the property is local, then the court applies its domestic law lex fori. This
becomes much more complicated when local laws allow polygamy. For example,
Saskatchewan Canada stands alone as a province in Canada that allows more than one spouse
at a time per person. Each province has similar marital property laws, but what happens when
one or more provinces ignore the federal polygamy law? In this case some of the spouses
receive/give marital property from two or more simultaneous spouses, while others may only
receive/give from one spouse only, depending on whether their home province allows
polygamy. The case becomes even more complicated if foreign elements are thrown into the
mix, such as when the place of marriage is different from the territory where divorce was filed;
when the parties' nationalities and residences do not match; when there is property in a foreign
jurisdiction; or when the parties have changed residence several times during the marriage.
Each time a spouse invokes the application of foreign law, the process of divorce slows down,
as the parties are directed to brief the issue of conflict of laws and provide translations of the
foreign laws.

Different jurisdictions follow different sets of rules. Before embarking on a conflict of law
analysis, the court must determine whether a property agreement governs the relationship
between the parties. The property agreement must satisfy all formalities required in the country
where enforcement is sought.

Whereas commercial agreements or prenuptial agreements generally do not require legal

formalities to be observed, when couples enter a property agreement, stringent requirements

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are imposed, including notarization, witnesses, and special acknowledgment forms. In some
countries, these must be filed (or docketed) with a domestic court, and the terms must be so
ordered by a judge. This is done in order to ensure that no coercion or oppression has been
exerted by one spouse against the other. Upon presenting a property agreement between
spouses to a court of divorce, that court will generally assure itself of the following factors:
signatures, legal formalities, intent, later intent, , lack of oppression, reasonableness and
fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and
whichever other concepts of contractual bargaining apply in the context.

Choice of law

The applicable law in nullity suits depends on the classification of the relevant issue, that is,
whether it is an issue of formal validity or an issue of essential validity. Lack of parental consent
has been classified as an issue of form. In relation to defects affecting consent, such as fraud,
duress, mental illness, and so forth, the weight of judicial opinion seems to favour reference of
the issue of consent as one of essential validity and, therefore, subject to the law of domicile.
IN relation to physical defects or incapacity, the position is unclear. Such defects have been
classified as issues of form in some instances, and as issues of capacity in others

Recognition of foreign divorces, legal separations and Annulments

Where a decree is granted elsewhere ,then conflict arises and court may or may not recognize
it .Recognition depends upon various grounds as like is there any bilateral treaty of any such
convention where both parties and state of filing suit is party to it or not.eg private law
agreements like Convention on the Rights of the Child (CRC), the Convention on the
Elimination of Discrimination Against Women (CEDAW), Draft Declaration on the Rights of
Indigenous Peoples, the Hague Convention on the Recognition of Divorces and Legal
Separations, as well as provisions from CEDAW and the International Covenant on Civil and
Political Rights and the regional convention reflected in the European Council regulations on
divorce.

In the absence of a valid and enforceable agreement, heres how the conflict of law rules work:

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Movable v. Immovable - In general, applicable matrimonial law depends on the nature

of the property. Lex situs is applied to immovable property (i.e., real estate), and the
law of matrimonial domicile applies to movable property, provided there has been no
subsequent change in the spouses domicile.

Full Mutability Doctrine - property relations between spouses are governed by their
latest domicile, whether acquired before or after the marriage. This is also the norm in
England, except for a few cases where severe injustice results from a harsh application.
In those cases, the court also examines whether newly acquired property can be traced
back to property owned before the change.

Immutability Doctrine - the original personal law of the parties at the time of marriage
continues to govern all property including subsequently acquired property, regardless
of a later change in domicile or nationality. E.g. in Israel: property relations between
spouses shall be governed by the law of their domicile at the time of the solemnization
of the marriage, provided that they may by agreement determine and vary such relations
in accordance with the law of their domicile at the time of making the agreement Note
that the Israeli application of the Immutability Doctrine does not distinguish between
personal and real property. Both are subject to the law of domicile at marriage.
Partial Mutability or Mutability of New Acquisition - this is the American approach to
conflicts of law in matrimonial property division cases. All movable property acquired
during the marriage is subject to the parties domicile law at the time of acquisition,
and not that of the original or intermediate domicile. What was acquired before the
marriage is governed by the law of the parties' domicile at the time of marriage. Thus,
if rights vested in a property when and where it was purchased, it would not be
adversely affected by a later change of domicile.
Lex Fori - In many cases, courts simply avoid this complicated and expensive analysis
by applying their local law to the parties' entire property, even if there is a foreign
element. This is based on the assumption that laws around the world are basically
similar in their treatment of marriage as a co-partnership. Since the partnership can be
placed in the forum, the forums law applies to all its aspects.

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Conflict of law rules in unmarried cases

Unlike marriage which has an international recognised legal status, there are no international
treaties on recognition of unmarried couple's legal status. If an unmarried couple change
residence to different countries, then the local law on where the couple is last domiciled is
applied to them. This covers, legal; status of the relationship, rights, obligations and all
worldwide movable and immovable property. To otherwise interpret the law would mean if the
unmarried couple had assets in several different countries, they would then need separate legal
cases in each country to resolve all their movable and immovable property.

In the absence of a valid and enforceable agreement for an unmarried couple, heres how the
conflict of law rules work:

Full Mutability Doctrine - property relations between the unmarried couples are
governed by their latest domicile, whether acquired before, during or after the
relationship.

The status of foreign law

Generally, when the court is to apply a foreign law, it must be proved by foreign law experts.
It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor
in how they might be applied in a foreign court. Such foreign law may be considered no more
than an evidence rather than law because of the issue of sovereignty. If the local court is actually
giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way
that is potentially unconstitutional. The theoretical responses to this issue are:

That each court has an inherent jurisdiction to apply the laws of another country where
it is necessary to achieving a just outcome; or
That the local court creates a right in its own laws to match that available under the
foreign law. This explanation is sustainable because, even in states which apply a
system of binding legal precedents, any precedent emerging from a conflicts case can
only apply to future conflicts cases. There will be no ratio decidendi that binds future
litigants in entirely local cases.
That the national court, when applying a foreign law, does not give an extraterritorial
effect but recognizes, through its own "conflict of laws rule", that the situation at hand

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falls under the scope of application of the foreign rule. In order to understand this
argument one must first define the notion of extraterritorial application of a rule. This
notion is susceptible to two distinct meanings:

On the one hand, this notion is used to describe the situation where a local court applies a rule
other than the Lex fori (local law)

Harmonization

As Private International Law is also known as Conflict of Law so theres need of harmonization
while adjudicating disputes where foreign element is present. Its the moral duty of courts to
harmonize various legal systems to provide justice to the parties. The very object of law i.e.
justice should not be defeated, thus theres a need of harmonization

To apply one national legal system as against another may never be an entirely satisfactory
approach. The parties' interests may always be better protected by applying a law conceived
with international realities in mind. The Hague Convention on Private International Law is a
treaty organization that oversees conventions designed to develop a uniform system.

CONCLUSION

Law in the field of Conflict of law or Private International law is continuously developing and
changing with the change in society. Law can never be static it is always dynamic as law is for
the society not society of the law, so with the change in society law too changes. People are
moving to other states for various reasons like trade and commerce, job, tourism etc. and thus
if any dispute arises and parties cannot settle dispute amicably then rules of PIL is applied.

Family Law is that type of law which is not uniform in nature, even within India, there are
different Family Law for different sections of society. Family Law derives its origin from
Religion and customs, so its very difficult to bring uniformity in it unlike criminal law. As
unlike principles of criminal law which are somewhat similar in nature through globe, family
law on the other hand is much more complex as religion, place/domicile, customs play vital
role in it.

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In matrimonial case, court find difficulty in in resolving such disputes as in some country
grounds for divorce may not in other, similarly validity of marriage, minors marriage,
succession rights etc. recognition of foreign judgements, decree etc. are of much relevance in
PIL and courts are under moral duty to provide best relief in favour of parties, so that the
ultimate of law is not defeated.

Family law is such a law which can never be uniformed nor can any convention be made
applicable while adjudicating disputes as its law which has its origin mostly from religion and
customs. For example even in India Dr. Ambedkar proposed for a Uniform Code governing
family matters but was widely criticised as still people are very religious and cant go against
it even though it may be wrong.

BIBLIOGRAPHY

1.Abla J Mayss, LLM, PhD, Licence en Drot ,Principles of Conflict of Laws, Cavendish
Publishing Limited, London, Sydney,3Rd ed,1999.
2. J. G AUTOR COLLIER, John Greenwood Collier, Conflict of Laws, Cambridge
University Press, 2001
3. http://abookmedhin.files.wordpress.com/2010/12/principles-of-conflict-of-laws.pdf
4.http://books.google.co.in/books?id=gOYveQFbMakC&printsec=frontcover&source=gbs_g
e_summary_r&cad=0#v=onepage&q&f=false

5. http://en.wikipedia.org/wiki/Conflict_of_laws
6. http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/stark0207.htm
7. http://www.legalserviceindia.com/articles/frpca.htm
8. Lectures of Dr.K. Parameswaran.

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