Simonin v. Mallac

It is the leading case on formal validity of marriage, and it decides two things at once: that parental consent is a formality, and that evasion is irrelevant to formal validity. Both propositions are examined constantly.

A French domiciled couple crossed to England and married without the parental consent that French law required. They had gone to England precisely to escape that rule.

The petition was dismissed. Consent is a requirement of formal validity only, and its absence does not affect a marriage celebrated in England, English law requiring none.

Step one — state the rule of form. It has been settled since 1725 that the formalities of marriage are governed by the lex loci celebrationis, the law of the place of celebration. The maxim is locus regit actum — the place governs the act — and there is said to be no rule more firmly established in private international law.

Step two — state the consequence at its widest. If a marriage is good by the law of the country where it is effected, it is good all the world over, even though the ceremony would not be recognised in the country where the parties are domiciled.

Step three — withdraw the width at once. That proposition is correct only as to formal validity. Essential validity is governed by entirely different principles. Hence the sentence to memorise: the question whether a particular requirement relates to formal or to essential validity is supremely important.

Step four — the characterisation made. Parental consent was classified as form, so the lex loci celebrationis governed.

Step five — and evasion makes no difference. The predominance of the lex loci celebrationis as to form is not affected even if the sole object of the parties in marrying in another country was to avoid an inconvenient rule of their lex domicilii.

It opens: Discuss the formal validity of marriage — and it is the first case.

Pair it with Ogden v. Ogden on the same classification and its cost: there the English classification of parental consent as form, against the French treatment of it as capacity, produced a limping marriage and an annulled second marriage, and has been severely criticised.

Then set up the contrast that the examiner is really testing. For form, evasion is irrelevant. For essential validity, evasion is precisely what the dual domicile theory exists to prevent. The trap is a problem in which the parties evade a rule, and the first step is to decide whether the rule evaded was one of form or of capacity.

Add the timing rule. A marriage valid when celebrated stays valid; a marriage invalid when celebrated may be validated retrospectively by later changes in the lex loci — Starkowski v. Attorney General.

It does not decide anything about capacity; on that, English law leans to the dual domicile theory and India, in Parwatawwa v. Channawwa, prefers a single governing law.