Brook v. Brook

It is the leading English authority for the dual domicile theory of capacity to marry, and it is the cleanest demonstration that a marriage good in form where celebrated can still be void in essence.

Two English-domiciled parties married in Denmark, where the marriage was lawful, in circumstances that English law then forbade — the man having married his deceased wife's sister.

The marriage was invalid. Capacity was governed by the law of the domicile, and by English law the parties could not marry.

Step one — separate the two questions. Formal validity is for the lex loci celebrationis; essential validity is governed by entirely different principles. Capacity covers lack of age, the prohibited degrees of consanguinity and affinity, a previous marriage, physical incapacity — in fact all impediments other than purely formal ones.

Step two — state the dual domicile theory. A marriage is invalid unless, by the law of the domicile of both parties at the time of the marriage, they have capacity to marry. The illustration the course gives is a marriage between a Jewish uncle domiciled in Russia and his niece domiciled in England: invalid, because the niece lacks capacity by English law, even though Russian law permits it.

Step three — apply it. Both parties were domiciled in England, English law forbade the marriage, and the Danish ceremony could not supply what English law withheld.

Step four — note the policy. For essential validity, evasion is exactly what the theory is designed to prevent — the opposite of the position for form, where evasion is irrelevant.

It opens: Which law governs capacity to marry? — and it is the first English case for the dual domicile theory.

Add Mette v. Mette, which is the more useful case precisely because the two theories coincide: an English-domiciled man married his deceased wife's German-domiciled sister in Germany, valid by German law and invalid by English, and the marriage was held invalid on both theories, the intended matrimonial home being English too. That shows the choice of theory matters only when the antenuptial domiciles differ and differ from the home the parties intend.

Then state the rival theory. Under the intended matrimonial home theory, capacity is governed by the law of the country where the parties at the time of the marriage intended to establish, and actually established, their matrimonial home. Note the two limbs — intention and implementation — since a theory resting on intention alone would let the parties choose their own capacity.

And give the Indian answer, which is different. Parwatawwa v. Channawwa rejected dual domicile as unworkable and held that only one law should govern capacity — the law of the husband's domicile, if not the law of the intended matrimonial home.

It does not decide anything about form; the Danish ceremony was not impeached.