NATURE, MEANING AND SCOPE OF CONLIFT OF LAW

The conflict of laws is that part of the private law of a country which deals with cases having a
foreign element. By a foreign element is simply meant a contact with some system of law other
than the law of the forum, say Kenyan law. Such a contact may exist i.e. because the facts
occurred in a foreign country or because the parties are not local.
In the conflict of laws a foreign element and a foreign country mean a non-Kenyan element and a
country other than Kenya. Conflict of laws deals with the recognition and enforcement of foreign
created rights. If an action is brought in a Kenyan court for damages, for breach of a contract
made in Kenya there is no foreign element. The case is not a case in conflict of laws and the
Kenyan courts will naturally apply municipal law. But if the contract had been made in Tanzania
between two Tanzanians and was to be performed in Tanzania then the case could be for a
Kenyan court but not a Tanzanian court, a case in the conflict of laws and a Kenyan court could
apply Tanzanian law, to most of the matters in dispute before it just as a Tanzanian court could
apply Tanzanian law to all such matters.
If we assume that the contract was made in Tanzania between a Kenyan and a Tanzanian, but
was to be performed in Kenya, then the case is a case in the conflict of laws not only for a
Kenyan court but also for a Tanzanian court and indeed for any court in the world in which the
contract is mitigated.
The basis of the conflict of laws is that when a given right or other legal relation has been validly
created by the appropriate law, its validity cannot be called into question anywhere according to
BEALE rights, being created by law alone it is necessary in every case to determine the law by
which the right is created. A creation of personal obligations which has no SITUS and results
from some acts of the party bound is a matter for the law which has to do with those acts.
A personal obligation is created by the law of the land where the act was done, out of which the
obligation arises, thus a polygamous or incestuous marriage created in a country where it is
valid, must be recognized as a legal status of that kind, even in a country where it is illegal,
though it need not be treated as a so called Christian marriage could be. It is merely recognizing
a foreign act.
This doctrine has not been universally recognized. And there is a good authority for the doctrine
that if the marriage is against universal notions of decency because it is very near relatives, it will
not be recognized as possibly a legal marriage anywhere.
PUBLIC INTERNATIONAL LAW AND CONFLICT OF LAWS.
The conflict of laws or private international law as it is sometimes called has little to do with
public international law. The conflict of laws exist because different countries have different
legal rules while public international law exist because the world contains a number of different
sovereign states. Public international law in theory at any rate is the same everywhere but the
rules of the conflict of laws are different from country to country.
MEANING OF COUNTRY.

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Public international law deals mainly with relations between different states while the conflict of
laws is concerned with the difference between the legal systems of different countries. A state in
the sense of public international law may or may not conside with a country or law distinct in the
sense of conflict of laws.
Unitary states like Kenya, France, and Italy, where the law is the same throughout the state are
countries in this sense. Public international law knows nothing of England or Wales, Texas or
Minnesota for they are nearly component parts of UK and USA. Yet each of them is a country in
the sense of the conflict of laws because it has a separate system of law. Since the matter is of
fundamental purpose it is necessary to be clear exactly what constitutes a country for the
purposes of conflict of laws.
Jurisdiction and choice
The questions that will are of two types whenever a forum is confronted with a case having a
foreign element:
1. Does the kenya court for eg have jurisdiction
2. If so, what law will it apply.
3. There may sometime the thirdy question namely : will the Kenyan court recognize or
enforce a foregn judgement purporting to detrtmine the issue between the parties. This
only arises if there is a foreign element and that is not in every case. (if the parties have
litigated elsewhere?
JUSTIFICATION
What justification is there for the existence of Conflicts of Laws. Why should we depart from
the rules of our own law and apply those of another system. This is a fundamental matter
which must be clearly understood before proceeding any further. The justification for the
Conflicts of Laws can be easily be seen if it does not exist.
Theoretically it could be possible for Kenyan court to close all their doors to all except
Kenyan litigants but if they did so grave injustice could be inflicted not only on foreigners
but also on Kenyans.
A Kenyan who made a contract with a Ugandan in Kampala or with a Tanzanian in Arusha
could be unable to enforce in Kenya and if the courts of the other countries adopted the same
principle the contracts will not be enforced in any country in the world.
Theoretically it could be possible for Kenyan courts while opening their door to foreigners to
apply Kenya domestic law in all cases. But if they did so, grave injustice could be again be
inflicted not only on foreigners but also on Kenyans. For instance if two Kenyans got married
in France in accordance with the formalities prescribed by French law but not in accordance
with the formalities prescribed by Kenyan law the Kenyans courts if it applied Kenya
domestic law to the case, will have to treat the parties as married person and their children if
any as illegitimate.

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Theoretically it could be possible for Kenyan courts while opening their doors to foreigners
and while ready to apply law in appropriate cases to refuse to recognize or enforce a foreign
judgement determining the issue between the parties but this could mean that if a divorce was
granted in a foreign country and afterwards one party remarried in Kenya, he or she might be
send to prison for the bigamy.
It was at one supposed that doctrine of Cummity was a sufficient for the Conflicts of law but
it’s clear that Kenyan courts apply for example French law in order to do justice between the
parties and not from any desire to show courtesy to the French republic nor even in the hope
that if Kenyan courts apply French law in appropriate cases French courts will be encouraged
in appropriate to apply Kenyan law. Moreover the doctrine of Cummity is quite
irreconcilable with the application of the law of an enemy which is common place when
justice requires.
DOMICILE, NATIONALITY AND HABITUAL RESIDENCE
The object of jusdictional rules is to determine any appropriate forum and choice of law rules
are disginated to lead the application of the most appropriate law that is the generally that the
parties expect might reasonably be applied. The test for recognition of foreign judgements is
not dissimilar. A judgement granted ….appropriate forum shold not=rmally be recogniesd,
the problem is one of ascertaining the connecting factors(s) which would best satisfy the
criterion……..
The test of appropriateness …the required link with the country varies in different areas of
law. For e.g. in the fields of status marriage and succession, the tradition view is that a much
closer between the person and the person is required than in the commercial sphere. Laws on
marriage and family are intimately connected with the culture and the moral and religious
standards of the community. It’s appropriate that in the conflict of laws a person’s legal
position in this field should wholly or partly but the courts of their own country in
accordance with the law of that country. It is for this reason that domicile nationality and
habitual residence are the key connecting factors between the person and the system of law.

DOMICILE
Is easier to illustrate than to define. The root idea underlying the concept is ….the permanent
home. Lord Cre……..in Wheecker v Hume 1958 said:
“by domicile we mean home, the permanent home, and if you do not understand your
permanent home no illustration drawn from foreign writers will very much help you to it”
However, domicile can not be equated with home because a man maybe domicile in a
country which is not and never been his home. A person may have two homes but can only
have one domicile. He maybe homeless but he must have a domicile. Indeed there is often
wide gap between the popular conception of home and the legal concept of domicile. This led
Lord Wesburry in Bell V Kenedy to state that domicile is an idea of law.

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 Domicile exerts the …..influence on matters such as status, capacity to marriage divorce and
……..the mutual rights and duties of husband and wife, parents and child and guardian and
…….., legitimacy, legitimation and adoption. The effect of marriage on proprietary rights of
husband and wife and succession to movables.
There are 3 kind of Domicile namely;
 The domicile of origin, which is the domicile assigned to a child when it is born
 Domicile of choice which is the domicile any independent person can acquire for
himself by accommodation and intention of the person.
 Domicile of dependents which is the domicile of dependents persons. And is
dependent on and usually changes on the domicile of someone else, for example the
parent of an infant, the guardian of a person of an unsound mind.
The object of determining a person’s domicile is to connect him with some legal system for
certain legal purposes. To establish this connection it is sufficient to fix his domicile in some
country in the sense the conflict of laws for e.g. Kenya or Uganda, England or wales, Texas or
Michigan. It is not necessary to show in which f theat country is domicile but it usually
insufficient to show that he domicile in some composite state such as the US, UK or Australia
each of which compricses several countries in the conflict of law sense. A person who
immigrates eg to the UK eith the intention of settling either in England or wales or to the USA
with the intention in seltling either in California and Michigan does not change his domicile until
he decides in which country he intends to settle and actually settles there.

GENERAL PRINCIPLES.
1. No person can be without a domicile as was stated by Dicey and Morris rule 4 and cited
in the case v Kennedy. This rules sprints from the practical necessity of connect evry
person with some system by which a number of his legal relationship maybe regulated. In
Ubny v Ubny 1869, Lord Wesburry said
“It is a settled principle that no man shall be without a domicile and to secure this results the
law attributes to every individual as soon as he is born the domicile of his father if the child
is legitimate and the domicile of his mother if illegitimate. This has been calle the domicile
origin and is involuntary.”
Since the domicile of the child’s father maybe the father’s domicile of origin which itself
may have been derived from the father’s father it follows that the domicile of origin may be
transmitted from generated no member have lived in his domicile of origin. A domicile of
origin cannot be lost by mere abandonment, it can only be lost by the acquisition of dom of
choice.
In Bell v Kennedy
Mr. bell was born in Jamaica of Scottish parents domicile in Jamaica.in 1828 he married in
Jamaica, in 1837 age 35 he left Jamaica for good went to Scotland and lived with his mother
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 in law while he looked around for an estate on which to settle down. He found in 1839 and
from then on he was admittedly domiciled in Scotland. But until then he was undecided
whether to settle in Scotland or in England or elsewhere. He was unhappy with Scotland
mainly due to the bad weather so different to what he was used to in Jamaica. The question
was where he was domicile in September 1838 when he wife died. The house of lord held he
had not lost his Jamaican domicile of origin.
On the other hand, a domicile can be lost by abandonment and if it is, and a new domicile of
choice is not simultaneously acquired the domicile of origin revives to fill the gap. The
ameriacan rule that the domicile of choice continues until a new is acquired sometimes
produces strabge outcomes. In RE JONES Estates 192 AYOWA 781A2 1921) Evan Jones
was born in wales in 1850 with an English domicile of origin, in 1883 he puts a welsh girl in
the f……and she treated him with…….. ……………………where he acquired a domicile of
chice in Ayowa became a naturalized citizen and married an American wife. And acquired a
considerable amount of properties. In 199 after the death of his wife he decided to
……………… and was drowned when she was torpedoed by a German sub marine of the
south coast of Ireland. He died intestate. By English law, his brothers and sisters were
entitled to his property. By the law of Ayowa it …………………..and with whom he had
ever had anything to do with. The supreme of Ayowa held that he died domicile in Ayowa
and the daughter was entitled.

2. Secondly, no person can at the same have more than one domicile at any ….for the same
purpose. This is according to Dicey and Morris rule 5 cited in Ubny v Ubny. This rule
also sprints ……………connecting every person with some legal system……….been
acquired.
In Bell v Kennedy it was stated that the burden of proving a change of domicile lies on those
who assert it.
3. For the purposes of Kenyan choices of law, domicile means domicile in the Kenya sense.

LOSS OF DOMICILE OF CHOICE.

EVERY independent person that is one who is not an infant or lunatic can acquired a domicile
by the combination of residence and the intention of permanent or indefinite
Residence however in a country will not result in domicile of choice …………………….
Intention however strong to change a domicile will not have result if the necessary residence in
the new country is lacking.
RESIDENCE
The first step. This is basically a question of fact and may mean little more than physical
presence. However a person passing through a country thru travelling is clearly not resident

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there. In order to be resident in a country a person need not own or rent a house there. It is
sufficient if he leaves in a hotel or in a house of a friend or even in a military camp. The
residence must be voluntary.
INTENTION.

Conflict of marriage laws is the conflict of laws regarding marriage in diff jurisdictions. When
marriage related issues arise btwn couples with diverse backgrounds questions as to which legal
systems and …..should be applied the relationship naturally follow the various potentially
applicable systems frequently conflicting with one other. The standard choice of law rules for
adjudicating on issues relating to marriage represent a balance betwn the various public policies
of the laws involved.
Despite the changes in society in recent times there remains much truth. In dictum in Show v
GOUAD 1668, “marriage is the very foundation of civil society and no part of the law and
institutions of a country can be of more vital importance to its subjects than those that regulates
the manner and conditions of forming and if necessary resolcing the marriage contract.”
Marriage then is a contract in the sense that there can be no valid marriage unless the parties
consents to marry each other. But Lord Penzance in Modern v Moderns it is a contract of a very
special kind.it can only be concluded ( at least as a general rule) by a formal public act and not
for example by an exchange of email or over the telephone. No action for damages will lie for
the fundamental obligation to love, honor and obey. The contract cannot be rescinded by the

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mutual consent of the parties: it may be disowned if at all only by the formal public act usually
an order or degree of the divorce court. Marriage is a contract in the limited sense indicated
above but it is in reality far more than that; it create the status, something affecting the
community as well as the parties.
The validoity of a marriage may arise in almost every context and not merely in judicial
proseddings which lays the issue ……on the matter of such importance, there is need for
certainty on the choice of law rule. As J. Lincoln observed in Lawrence V Lawrence 1985,
“ideally the conflict rules relating to the status of marriage and divorced persons should be
simple and easily understood.”
However it must now be submitted that the law is still developing and it is better for the time and
the very least to leave the matter in the hands of the judges. This is the Hague Convention on
Celebration and recognition of the validity of marriage 1978.
The original rule was that the validity of a marriage was governed by the law of the place of
Celebration (lexis loci celebrationes). In 1861 in the case of Brook v Brook, the HL drew the
distinction between the formalities of the marriage governed by that law and the capacity to
marry governed by the law of each parties ………….domicile. In 1866 Sir JB Wr (later Lord
,….) said that
“Marriage is the voluntary union for life of one man and one woman to the exclusion of all
others.” Hyde v Hyde. He thus traced that marriage was a consensual transaction. There are 4
main areas for the determination for the validity of a marriage which are as follows:
Formalities of marriage-
Consent of the parties
Consummation
Capacity of the parties to marry
Polygamous marriages.

FORMALIES OF MARRIAGES.
Formalities include such matters as whether the civil ceremony or religious or any ceremony at
all is required. The number of witnesses necessary, the permitted hours during which marriages
can be celebrated. Whether publication of bans is necessary. The official qualified to celebrate
the union etc.
It has long been settled that the formalities of marriage are governed by the law of the place of
celebration. It is sufficient to comply with the formalities prescribed by that law and as a general
rule it is also necessary to do so.

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The leading case is Berthiaume v Bastous 1930 App Cases 79 where two Roman Catholics
domiciled in …..Were married in France in a Roman Catholic Church. Owing to the carelessness
of the Priest who married then there was no civil ceremony as required by French law. The Privy
Council held that the marriage was void. And Lord Bu speaking for the court said
“if there is one question better settled than any other in international law it is that as regards
marriage, put aside the question of capacity; Locus regit actum. If the marriage is the good by the
laws of the country where it was effected it is good all the world over nonmatter whether the
proceedings or ceremony which constitute that marriage according to law of the place would or
would not constitute marriage in the country of the domicile of one or other of the spouses. If the
so called is no marriage in the place where it is celebrated there is no marriage anywhere
although the ceremony or proceedings if contacted in the place of the parties domicile could be
considered a good marriage.”
So well established is the principle that compliant with the local form is sufficient that it applies
even though the marriage originally invalid by the local law has been subsequently validated by
retrospective legislation in the country of the place of celebration.
In Stakowski v AG 1954 App 155, 2 Roman Catholics domiciled in Poland were married without
any single ceremony in a roman catholic church in Austria in May 1945. At that time Austrian
law did not recognized marriages without a civil ceremony but a few years later a law was
passed in Austria retrospectively validating such marriages if they were duly registered. By some
oversight the marriage in question was not registered until 1949 by which time the parties had
acquired an English domicile of choice and separated. In 1950, the woman married another man
in England. The House of Lords said that the Austrian marriage was valid and therefore the
English marriage was bigamous and void.
SCOPE OF THE RULE;
Marriages by proxies
Thus far it has been assumed that the place of celebration of a marriage is easily ascertained in
ordinary circumstances it is not very problematic but not always: in some systems of law a
marriage may be celebrated by proxy, one or both parties being represented at the ceremony by
other persons whom they have duly authorized to make the necessary declarations.
In Apt v Apt 1948 the English court of app upheld the marriage celebrated by proxy in Argentina
between a man domiciled and resident there and the woman domiciled and resident in England.
Since it appeared that proxy marriages were valid by argentine law. Here the Court distinguished
between the facts that consent and the method of giving the consent and that the acceptability of
proxies went to the latter and was an aspect of formalities.
A more extreme set of facts presented themselves McCabe vs McCabe 1994 1FLR 410 where a
man domiciled in the Republic of Island and a woman domiciled in Ghana were living together,
they agreed to marry according to the tribal custom of the Akan a people living in Ghana. The
man provided a bottle of gin and some money (as aseda - dowry) which were taken to Ghana
were the ceremony was held. Neither the man nor the woman was present at the ceremony nor

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was either of them represented by proxies. The English court of app held, that the parties were
validly married finding on the basis of expert evidence that the ceremony constituted a valid
ceremony under the Akan Customary Law.

PARENTIAL CONSENT.
The most controversial is whether the lack of parental relates to the formalities of marriage or
capacity to marry. The answer seems to be that it relates to formalities. Kenyan law following
English law, requires consent of parents for persons bellow the age of 18. The marriage
celebrated with parental consent is not invalid under Kenyan law. Of Corse it does not follow
from this that the following requirement of parental consent will also be treated as formalities.
In simon v Mallac 1860 2 SW& TR the English court was faced with the most stringent rules of
French law which (like customary law expressly applied to married of Frenchman and French
woman nonmatter were celebrated; non-compliance rendered the marriage voidable at the instant
of the party who needed parental consent of his/her parents). Yet these have been treated as
applicable between the marriages between French persons celebrated in England, the marriage
was valid by English domestic law but voidable by French law because neither party had
obtained the consents of their parents by what was then article 151 of the French civil code.
Although the marriage was annulled in France the country of the parties domicile, it was held
valid in England. The ground of the decision was that the validity of a marriage is generally
governed by the law of the place of celebration but it was subsequently explained as have turned
on formalities.
MARRIAGE ON BOARD
It appears that the validity of marriages celebrated on board, a merchant ship could be
determined by the law of the ship flag if the ship is then on the high seas. This could be the
Kenyan law if the ship’s port of registry was in Kenya, provided it was in impracticable to wait
until the sheep reached port. The sheep captain will normally officiate such marriages.
2. LEGAL CAPACITY TO MARRY.
Although the partis have gone through a ceremony which is formally valid by lex celebretones
and so valid in kenya, the marriage may never be valid.

Eg one or both maybe underage or one is already marriage to a third person or they may be
within the prohibited degrees of relationship ( consanguinity ) or may otherwise be precluded
from marrying each other (man to man marriage).
What law governs capacity to marry has been the subject of considerable academic arguments
and defference of judicial opion. To rival ch
a) Namely the dual or Natural domicile test according to which if both parties have capacity
to marry each other by the law of their domiciles by the time of the ceremony the

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 marriage is valid but generally speaking invalid if by either or both of these laws they
have no such capacity
b) The law of the intended matrimonial home, that is the country were at the time of the
ceremony the parties intend to and after the ceremony so set up home. This was
advocated by the late Proffesor ……..
The Dual Doctrine Test.
Before about 1860 the lex loci celebrationes was regarded as governing all questions affecting
the validity of the marriage but in two cases decided at that time the courts clearly distinguished
between formal validity governed by the Lex loci and essential validity governed the parties’
personal law.
In Mette v Mette 1851 1 SW- which concerned the revocation of a will by marriage. A German
who was domiciled in England married his deceased wife sister that was domiciled in German in
a ceremony there. Though the marriage was valid by Germany law it was invalid under English
law, under which the man had no capacity to marry his deceased wife’s sister. The marriage was
held void for the basis of consanguinity. In brook v brook which concerned legitimacy and
succession. The man married his deceased wife sister in Denmark under whose law the marriage
was valid. Both were domiciled in England. And accordingly the HL held the marriage to be
void.
In Padonecchia v Padonecchia 1968- H domiciled in Italy married there in 1943 and later
obtained a divorce in Mexico. This was recognised in England. He went to live in Denmark and
in one day visit in England succeeded in marrying W domiciled in Denmark and they then both
returned to Denmark. H petitioned for a degree of nullity in respect of his marriage alleging that
at that time he was still married to his 1st wife. Danish law was unclear as to whether he had
capacity. Court held since by the law of his Italian domicile the husband lack capacity, the
English ceremony was bigamous and void. The dual domicile test was expressly applied.
In Puge v Puge 1951- which concern lack of age, it was held that an English domiciled adult
military officer lack capacity a Hungarian domiciled in Austria( she was only 15 but by
hangarian law she could marry since by the law of his domicile he could neither:
a) Have married a pupil under 16 nor;
b) Though himself over 15 marry someone who had not achieved that age
Of course if both parties are domiciled abroad and marry abroad and have capacity to marry each
other by their personal rules their marriage will within certain possible limits be regarded as
valid by our courts.

THE INTENDED MATRIMONIAL HOME TEST

This test has been preferred in fairly recent cases. In Perrini v Penin, an American lady from
New Jersey went to Italy and married a domiciled Italian. The marriage was not consummated
and she returned to New Jersey were she obtained a degree of nullity, this was not recognised in

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Italy. The husband went to England and married an English woman. The later petitioned for a
degree on the ground that the man was still married to the American lady. His marriage to herself
was bigamous. It was held that;
The court must recognise the NJ decree, this meant that the man had capacity to marry
under English law since the English law regarded him as single even though Italian law
regarded him as still married and therefore regarded as having no capacity to marry. The
court refused to follow Padonecchia where it pointed that the judge in that has had not
considered the intended matrimonial home test. Perrini v Perrini was followed in effect
by J. Anton Lincoln in Lawrence v Lawrence where a woman domiciled in Brazil had
married in Nevada a man who was seemingly domiciled at the time somewhere in
America. They had immediately acquired a domicile in England and had a domicile
there. The learned Judge disregarded the wife’s lack of capacity by Brazilian law and
applied English law as the law of the intended matrimonial home because England was
the law the marriage had closest and most real connection.
The argument for and against the two rival theories have been frequently rehearsed. The
question does not always arise after the marriage, it can arise when parties wasn’t to marry. If
the registrar or clergyman discovers that the parties are domiciled abroad and cannot by
domicile of either or both marry each other though they have capacity under Kenyan law,
what is he to do? And how does he discover whether they have a home in Kenya, is he
simply take their word if they say they intend to do so, and if he refuse is the court to which
mandamus is applied for to compel him to do so.

Until the first is disowned. If this is correct, the house of the lords will be cited for the
proposition that capacity to marry is governed by each party’s …………..or that of the
intended matrimonial home. In Show v Gold 1868 Lr 3 the man and a woman both domiciled
in England married there and separated shortly afterwards. The marriage was dissolved but
the court……the woman then married a domiled sportmanand live with him in scortland. The
divorce was not recognised in England because the 1st husband never loast his English
domicile of origin. The HL held the second marriage was void although it was valid by the
second husband’s domicile and by the law of the intended matrimonial home. Lord C…
“If the marriage was not dissolved there could not be a second marriage. Till the 2nd marriage
was dissolved there was no capacity to contract the second. It is submitted that this type of
case demonstrate the possibility of accepting any other view than that capacity to marry is
governed by the law of each party’s international domicile. “

A purported marriage between persons of the same sex is void under Kenyan law as same sex
persons lack capacity to marry each other. H/ever same sex partners are able to marry in
….number of countries including Argentina, Belgium Canada island Netherlands Portugal

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 SA Norway Sweden Australia and in any state in USA. In many other legal system parties of
the same sex may enter into registered partnerships with legal consequences similar to those
of a marriage. The formalities to enter into same sex registered partnerships or marriages are
generally governed by loci lex celebrationes law. H/ever qualified were appropriate by the
relevant domestic law.
Same sex marriage has been legal in SA since the civil union act came into force in 30th
November 2006. The decision of the Concourt in the case of Minister of Home Affairs vs
FOURIER on 1st December 2005 extended the common law definition of marriage to include
same sex spouses. As the constitution of South Africa guarantees equal protection b4 the law
to all citizen regardless of sexual orientation and gave parliament one year to rectify the
anomaly in the marriage statutes. On 14th November 2006, the SA Parliament passed a law
allowing same sex couples to legally marry by 230 by 41 votes. Which was subsequently
approved by the national council of provinces on November 28 in a 36:11 votes and the law
came to be in force 2 days later. SA became the 5th country, the 1st and only as of date in
Africa, the 1st republic and 2nd outside Europe to legalise same sex marriages.

Incidentally SA was the 1st country in the world to safe guard sexual orientation in their
constitution in both the interim constitution which came into force on ….. and the final con
which replaced it on 4th ……forbids discrimination on the basis of sex gender or sexual
orientation. These equality rights form the basis for a series of judicial decisions granting
specific rights to couple in long term sexual relationships. Key among this is the FORIER
case (Minister of Home Affairs v Fourier).
Fourier Case
In 2002 a lesbian couple Marian Fourier and Cicilia….with the support of the lesbian and gay
launched an application in Pretoria High Court to have their union recognised and recorded by
the department of HA as a valid marriage. The court of 1st instance dismissed the application on
the 18th October 2002 on the technical basis that they have not properly attacked the
constitutionality of the marriage itself or the marriage act 1961. On appeal the supreme court of
appeal the judgement was delivered 30th November 2004 and the 5 judge bench unanimously
hold that the common law definition was invalid because it unconstitutionally discriminated on
the basis on the basis of sexual orientation and that it should be extended to read
“Marriage is the union of two persons to the exclusion of all others for life”
In a well quoted passage from the majority ruling J. Albie Sachs wrote
“The exclusion of same sex couples from the benefits and responsibilities of marriage
accordingly is not a small and to convenience resulting from a few surviving relics of societal
prejudice, they still to evaporate like the morning due. It can presence a harsh if oblique stamen
by the law that same sex couples are outsiders and their intimate relations as human beings is
somehow less than that of heterosexual couples. It reinforces the wounding notion that they are
to be treated as biological auditees as faint or lapsed human being who do not fit into normal

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society and therefore do not qualify for the full moral concern and respect that our constitution
seeks to secure for everyone. It simplifies that their capacity for love commitment and accepting
responsibility is by definition less worth of regard than that of heterosexual couples”
Trans-actual MARRIAGES.
Traditionally the tri sexual has always lacked capacity to marry the partner of his or her original
sex since the person’s sex was declared a …… and could not change by artificial intervention
and the marriage can only be entered into by one man and one woman. h/ver in England in 2002,
the Court of HR declared that the UK was in breach of articles 8&12 of the European
convention for failing to recognise transactual new gender. In Beringer v Beringer 2003 UK HL
22 (2003) 2 FNR the HL declared that section 11C of the Matrimonial Causes Act 1975 was
incompatible with the convention. The British has sought to address this situation with a gender
recognition act 2004 under which transactual over the age of 18 who fulfil the medical criteria
and are living on the other gender or have changed gender under the law an approved country
would be able to apply for a gender recognition certificate which in turn will provide the legal
status necessary in the acquired gender in order to marry a partner of the transactual’s former
sex. H/ever were the respondent was a person was a person of acquired gender prior to the
marriage such a marriage is still voidable.
CONSENT OF THE PARTIES.
Marriage is a contractual relationship and parties to it must consent. Marriage is a voluntary
union and there can be no valid marriage unless each party thereto consents to marry the other.
The marriage can be generally be voidable if either party did not consent whether in consequent
of duress mistake unsoundness of mind or otherwise. In addition to this common law instances of
lack of consents. There are three situations whereby statutes the marriage is voidable on this
ground.
1. Where at the time of the marriage either party though capable of giving valid consent was
at the time suffering from mental disorder of such kind or to such extend as to be unfitted
for marriage.
2. Where the respondent at the time of the marriage was suffering from a venereal diseases
in a communicable form.
3. Where the respondent was at the time of the marriage pregnant by some person other than
the respondent.
H/ever in most matters relating to consents it is the personal law of the parties that regulates. In
Szechter v Sze 1971 a police professional married his secretary to get her out of prison so that
she might escape to the west were she could obtain urgently needed medical treatment. Him and
his wife a domiciled in Poland. He divorced her and married his secretary in prison but the real
did not mean ant of this and the whole thing was a sham and they only did it or because they
believed the secretary could die if she stayed in jail. Regarding this as duress the court held the
marriage to be void and granted a degree. This was because it was void under polish law and

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polish law as the parties’ personal law applied to the issue, the court expressly approve Dicey
and Morris Conflict of laws, rule 71 were they state:
“No marriage is valid if by the law of either parties’ domicile one party does not consent to
marry the other”
PHYSICAL INCAPACITY
Marriage could be voidable under our law If it is not consummated either because one party
cannot consummate it by reason of impotence or because he or she will not do so (wilful refusal).
Impotence is fairly common ground for nullity in legal systems generally. Wilful refusal to
consummate is not. Sometimes its ground for divorce and sometimes gives no right to
matrimonial reliefs.

In a conflict of law context discuss the various remedies available to a couple who have an
acrimonious Relationship.
Explain the various grounds for the various matrimonial reliefs. Define a child within the context
of the conflict of laws.
Explain the various status of children and how the same are acquired.
In the conflict of law situation explain the concept of adoption.
14 days.
According Geshire page 198, “the problem off ascertaining the lex cose is more perplexing in the case of
contracts than in almost any other topic”

2 reason may be suggested

1. Contracts are almost infinitely various. It unlikely that a choice of law rule which is appropriate
for a contract to sale land will be equally appropriate for e.g. a contract of service or a contract
for the carriage of good by sea.
2. The problem that may arise are as numerous as may easily be seen by looking at the table of
contents of any book on the domestic law of contracts. It is unlikely that a choice of law rule
which is appropriate for essential validity will be equally appropriate for questions of offer and
acceptance, capacity of parties or formalities.

The conflict of law most of these matters are governed the proper law of the contract. This means the
law with which the contract has the closest and most real connection.

FORMULATION OF THE PROPER LAW DOCTINE.

The doctrine of the proper law emphasizing as it does the freedom of the parties to choose the law
should govern their contract was congenial to 19th century English Judges because it was in tune with
Benthamite Doctrines of freedom of contract. The following are some well-known formulation of the
doctrine derived from leading cases:

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 a) In Lloyd v Gilbert 1865 LR 1QD 115 120-121 Justice Willes said
“It is necessary to consider by what general law the parties intended that the transaction shold
be governed or rather to what general law, it just to presume that they have submitted
themselves”
b) In Jacobs v Credits Lyoness (1884)12 QDB 1899 Lord Justice Bowen
“It is open in all cases for parties to make such agreement as they please as to incorporating the
provision of any foreign law into their contracts”
c) In Vita Food Products Incoporated v Unus Shipping Co. 1839 App Cases Lord Artikin said:
“Their intention will be ascertain by the intention expressed in the contract if any which will be
conclusive.”
d) In Assunzione 1954 Lord Wright said:
“It is now well settled that the proper law of the contract id the law which the parties intended
to apply”
It could be seen on the face of these quotation….there is a fatal ambiguity lacking in Justice
Willes formulation: did he mean that the proper law is the law intended by these parties or the
law which reasonable men in the position of the parties will presumably have intended should
be the doctrine be formulated subjectively or objectively. Dicey preferred the subjective
formulation and largely because of his influence, the subjective formulation was the fashionable
one at least until 1939. But the difficult is that To try to ascertain what would have been the
indication of parties if they had considered the matter is often a fruitless task since in cases
where there is no express choice, neither party has given it any thoughts and neither has formed
an ……………………still less can it be said that they have any common intention.

Westleigh and Geshire preferred an objective formulation, according to them the proper law is
the law with which the contract has the closest and most real connection. There has indeed been
a judicial preference for this later formulation.
For e.g. in Bosven v Weil 1KB 482, Lord Justice Denning said:
“The proper law of the contracts depend not so much on the place where it is made nor even on
the intention of the parties or on the place where it is to be performed, but based on the place
which has the most substantial connection.
Lord Simmons, in Bonython v Commonwealth of Australia 1951 App Cases 201 219in support
of the objective formulation stated thus:
“The proper law of the contracts is the system of law by reference to which the contract was
made or that with which the transaction is closest and most real connection.
COMM CONFL
Typical comm contracts will often have international elemennts: the parties may come from diff
countries: good might be shipped from one country to another and the insurer or guarantor
involved in the transaction might be situated in a diff country. The transnational nature of
commeical transctions is reflected in the international nature of litigation in domestic
commercial courts. If the dispute arises in relation to such a contract, the court will need to apply
conflict of law rules also reffered to as Rules of Private international law to deal with the

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international aspects of the transaction. Conflict of law rules applied to determine 3 separate
issues namely:
1. Jurisdiction
2. Choice of law
3. Enforcement.
For eg
a) A a Kenyan co. agrees to sell B limited a Ugandan company with the branch in Nairobi a
prining press. When the press is delivered B limited says it does not print with the quality
or at the speed agreed in the contract and refuses to pay. A limited is considering
commencing proceedings for payment of the price: it say that the press is perfectly
suitable for the purpose B limited stated that it was required for.
If A limited decides that legal proceedings are its on option it will first need to decide
where to commence the proceedings. Commercial considerations such as how much the
proceedings will cost; where is assets situated will clearly be important.
The legal question of which court(s) will be entitled to hear the case is answered by the
conflict of law rules on jurisdiction. Very commonly in commercial transations the prties
might have agreed in advance that all claims relating to the contract must be ienforced in
the courts of a particular country. The effect of such an agreement will also be
determined by the rules relating to jurisdiction.
The merits of the disputes itself may well depend on what law is applied in the contract.
For eg. Under the Kenyan sell of goods law, the contract might include an implied term
as to fitness for particular purposes. Under Ugandan sell of goods law, there might be
know such term. The question of which law the court hearing the dispute should apply is
determined by the conflict of laws rules relating to choice of law.

Enforcement.
Before A. Limited starts expensive legal proceedings it will also want to be sure that it
can enforce any judgements if obtained against B’s assets. This question would be
determined by the conflict of law rules relating to enforcement. It is important to consider
the rules that the domestic court will apply in typical commercial disputes in relation to
jurisdiction, choice of law, and enforcement.

Jurisdiction.
With respect to jurisdiction the most important factor is the domicile or nationality of the
individual or company or other legal person or association. The company or other legal
person is domicile where it has
a. Its statutory seat.
b. Central administration.
c. Principal place of business.

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