Ogden v. Ogden

It shows characterisation producing a limping marriage — a person married in one country and unmarried in another. It is the sharpest demonstration in the paper that the forum's control over the categories can defeat the very purpose of the choice-of-law rule.

Sarah, a domiciled Englishwoman, married Philip, a domiciled Frenchman aged 19, in England in 1898. In 1901 a French court annulled the marriage because the consent of Philip's surviving parent had not been obtained as French law required. Philip remarried in France. Sarah's English suit for dissolution was dismissed for want of jurisdiction, Philip being domiciled in France. In 1904 Sarah, describing herself as a widow, married Ogden in England; in 1906 Ogden obtained an annulment on the ground that she was still married to Philip.

The court classified the rule of parental consent as one relating to formality. Since the marriage took place in England, formal validity was governed by English law, which required no such consent, so the French rule was inapplicable. The first marriage stood and the second was void. The classification has been subject to severe criticism.

Step one — the two possible boxes. Parental consent can plausibly be characterised as a matter of form — a requirement of the ceremony, governed by the lex loci celebrationis — or of capacity, a limit on the person, governed by the lex domicilii.

Step two — the forum chooses. England chose form; France treated the same requirement as capacity.

Step three — the result of the disagreement. Sarah was married to Philip in England and unmarried in France: a limping marriage, and a second English marriage annulled as a consequence.

It opens: What is characterisation, and by which law is it done? — and it is the case that shows what is at stake in the answer.

Pair it with Simonin v. Mallac, which reaches the same classification on cleaner facts: a French domiciled couple married in England without the consent French law required, and the petition was dismissed because consent is a matter of formal validity whose absence does not affect a marriage celebrated in England. Add that evasion is irrelevant to formal validity, even though the parties crossed the Channel precisely to escape the French rule.

Then draw the contrast with essential validity, where evasion is exactly what the dual domicile theory exists to prevent. The examiner's favourite trap is a problem in which the parties evade a rule and you must first decide whether the rule evaded was one of form or of capacity.

It does not decide that parental consent must always be treated as formal; it decides that England so treats it, and the criticism is directed at that choice.