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Conflict of Laws · Unit 3

Applicable Law — Family Matters

Unit 3 of Conflict of Laws (syllabus: Module III — domicile and its kinds; marriage, its formal and essential validity, and polygamy; matrimonial causes and the recognition of foreign divorces; legitimacy and legitimation; adoption and guardianship; and the work of the Hague Conference). Below: what the unit covers, the provisions it turns on, and the cases an examiner expects you to name.

What this unit covers

  • Why do family matters need domicile, and what are the rules and the three kinds of domicile?
  • What must be proved to establish a domicile of choice?
  • What is distinctive about the Indian approach to domicile?
  • Do the Indian family statutes contain choice of law rules, and what do they contain instead?
  • What law governs the formal validity of a marriage, and what are the exceptions?
  • What law governs capacity to marry, and why did the Indian courts not adopt the dual domicile theory?
  • When will an Indian court refuse to recognise a foreign matrimonial decree?
  • How does a court take jurisdiction over a child, and how much weight does a foreign custody order carry?

Treat that list as a self-test: recite each topic's rule from memory before you open its cases.

Provisions

  • Indian Succession Act 1925, s. Sections 15 and 16
  • Hindu Marriage Act 1955, Special Marriage Act 1954, Foreign Marriage Act 1969 and Guardians and Wards Act 1890, s. Sections 1(2) and 19 of the Hindu Marriage Act, section 1(2) of the Special Marriage Act, section 4 of the Foreign Marriage Act and section 9(1) of the Guardians and Wards Act
  • Recognition of foreign matrimonial decrees; Code of Civil Procedure 1908, s. Section 13
  • Guardians and Wards Act 1890, s. Section 9(1)

Leading cases

Full case summaries

Exam questions on this unit

In this paper