FAMILY LAW IN CHOICE OF LAW

A Concept To Private International Law

ABSTRACT

This article shows that the traditional institutional mandatory approach to succession and family law, in recent years there have been developments towards the admission of choice of law in these fields of private international law and that the choice of law performed by parties has a very important role to play. It analyzes the admission of choice of law in conflict-of-law rules in the respective Czech legislation and EU regulations, concluding that the scope for choosing applicable law in the EU instruments is rather limited, however that it grants parties an option to designate the law that they feel most connected to and comfortable with and balances the lack of uniform approach to conflict-of-law rules across the EU regulations in the field of international family law. When talking about the right of succession, the first image to crystallize in front of us is that of something very old and, above all, something very conservative. In addition, something always reminds us of death and of its consequences... It is certainly not only the most conservative part of the civil law, but also one of the parts that most profoundly reflects and integrates the traditions and customs of the country whose legal system it serves, even the character and the “way of being” of the nation to which it belongs ... Maybe because it is the one that most profoundly reflects the family. It tells us how the family should be... Even if the deceased (the author of the inheritance) appears in the foreground, those to whom the law of succession actually addresses are, as a rule, his/her descendants, his/her family. The law of succession is not limited, therefore, only to an amount of technical, ”accounting” rules intended for the distribution of one patrimony at risk of being ownerless, but its principles, intended for establishing the rules of the inheritance devolution, transmission and division, come to legitimize the departed one`s posterity. It is concerned with maintaining and strengthening this posterity harmony, fixing what must represent reasonableness and family ethics. It is, therefore, closely linked to the idea of fairness and morality. Furthermore, both the equity and the morality of an attitude are concepts that evolve over time and cannot be dissociated from the spirit of the age in which the succession is opened[1].

INTRODUCTION

Party autonomy, like equality of parties, represents one of the fundamental pillars of private law. In private international law, which deals with legal relationships beyond national borders, the principle of party autonomy is given effect by choice of law rules, empowering parties to designate the applicable law that is to govern their legal relationships; and by choice of international forum rules, empowering parties to designate which country or even which court is to solve disputes that might arise. Apart from these two basic manifestations of party autonomy in private international law, there is a third, sometimes referred to as to ‘evasive mobility’. If no choice of law is permitted by legislation, enabling parties to escape the applicable law designated by default conflict-of-law rules, or if only a limited choice of law is permitted, there is still the possibility to escape the legal framework of one state - the domestic law - by travelling or moving to another jurisdiction whose legal system seems more suitable or less restrictive.

By means of choice of law rules the additional legal risks that international relations impose on parties can be considerably reduced. It makes it possible to opt out of the default rules set down by the legislator, and hence escape the legal system that would otherwise apply, if it does not offer satisfactory legal solutions to the life situations in question. The parties can influence which law is to govern their various activities, they look for and choose the law that suits them best. Choice of law reduces legal uncertainty and unpredictability, as parties choose the legal systems with which they are familiar and where they are aware of their rights and obligations. By performing a choice of law the forum shopping phenomenon can be effectively fought[2].

Private International law is emerging international law these days as due to drastic change in world economies. Earlier people used to move within state for search of job etc. and mostly used to settle there but due to globalization people are moving across state i.e. moving to other country for various reasons. The role of Private International law comes into picture where disputes arises as parties are of different state’s (here state means Nation).private international law is mostly applicable to individual disputes unlike Public International Law which is based on treaties and conventions recognized by various states. As both the parties are of different states which means one of the party is an alien or both parties are alien to the place where cause of action arises or parties wants to settle the matter .PIL comes into picture because it is a set of procedural rules that determines which legal system and which jurisdiction apply to a given dispute. Three basic and most essential constituents of PIL are as follows:

· Jurisdiction :-whether the forum court has the power to resolve the dispute at hand

· Choice of law:- the law which is being applied to resolve the dispute

· Foreign judgments:-the ability to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum.

Here’s the example as how important PIL is and when it comes into pictures, for example, in case of Divorce, an Egyptian man with two wives, both of whom he married in Cairo, who moves to Paris.

Both wives have children; the older wife’s children are grown, while the younger wife’s son is quite young. Both wives want a divorce when it appears that their husband is involved with another woman. One wants to return to Egypt, while the other wants to remain in Paris. What complications arise around issues of terminating one or both marriages?

Thus every court have to pass through following stages while hearing a matter where ‘foreign element’ is present.

1. The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate place/forum to adjudicate the matter?

2. The next step is the classification of the cause of action into its component legal categories like as if in case of divorce validity of marriage may arise, whether the lex forum should recognize a marriage which is solemnized in other state etc. Aspects of procedural and substantive laws are taken into account.

3. Each legal category is having choice of law and which law to be applicable. A key element in this may be the rules of “renvoi”(send back)

4. Once the applicable law is decided, that law must be proved before the forum court and applied to reach a judgment.

5. The successful party must then enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.

Private International Law is of more importance in family matters like divorce, adoption, inheritance of property, movable or immovable etc. IN Family disputes the most important aspect which is taken into account is of “domicile” i.e. the parties are domicile .In Era of globalization importance of Private International Law cannot be undermined specially in family disputes which are increasing day by day[3].

THE CONCEPT OF DOMICLE AND ITS RELEVANCE

Personal law may be defined as the law of the country to which a person primarily belongs, especially for the purposes of various matters of family law and succession. In other words, the personal law of an individual determines such matters as:

· The essential validity of a marriage;

· The effect of marriage on the proprietary rights of husband and wife;

· wills of movables and succession to movables;

· Jurisdiction in divorce and nullity of marriage, and to a certain extent, legitimacy of children and adoption; and

· Certain matters of revenue law.

Meaning and Definition of Domicile

The meaning and definition of domicile were elucidated by the Private International Law Committee in its First Report in 1954 as follows:

A person’s domicile may be defined as meaning the country (in the sense of a territorial unit possessing its own system of law) in which he has his home and intends to live permanently. The law regards every person as having a domicile, whether it be the domicile of origin which the law confers on him at birth, or the domicile of choice which he may subsequently acquire. The two requisites for the acquisition of a fresh domicile are: (1) residence; and (2) intention to remain permanently, and both these elements must be present before a new domicile can be acquired. If a person, having acquired domicile of choice, abandons it without acquiring a fresh one, the law regards his domicile of origin as having revived until a fresh domicile of choice is acquired, even though he may never in fact have returned to his domicile of origin. Hence, according to this statement, domicile may be defined as the legal system within whose jurisdiction an individual makes his or her home, intending to remain there permanently. It can be seen that the cornerstone underlying the English concept of domicile is permanent home[4]. For Purpose of better understanding of domicile in respect of Private International Law, it can be categorized as follows:

Domicile of origin:-

The domicile of origin is the domicile a person acquires at birth, and remains with that person there after until it is replaced by a domicile of dependency or domicile of choice. A posthumous child, that is, a child born after his or her father’s death, derives his or her domicile of origin from that of the mother. As for the domicile of origin of a foundling, this is derived from the country where he or she is found.

Domicile of dependency:-

It is a well settled rule that no dependent person can acquire a domicile of choice. The domicile of such persons depends on, and changes with, the domicile of the person on whom they are legally dependent. Two classes of persons must be examined, namely, children under the age of 16 and married women. As for mentally disordered persons, it suffices to note that, in general, the domicile of such a person depends on the person to whose care a mentally disordered person has been entrusted.

Domicile of choice:-

Every independent person is capable of acquiring a domicile of choice by residing in a country other than the country of origin, with the intention of remaining there permanently. Both the elements of residence and intention must be satisfied before English law can recognize a change of domicile. Although these elements are considered distinct, they are, as the remainder of this section will show, interrelated. A domicile of choice is acquired by an individual residing in a country, other than the country of his or her origin, with the intention of remaining there permanently. The onus of proving the acquisition of such a domicile is on the party alleging it, and the burden of proof is a heavy one. Residence is a question of fact. It has to exist, but need not be prolonged. However, it must indicate a real link between the individual and his or her alleged new homeland. Intention to reside in the new homeland must be permanent or indefinite. It does not suffice to have the intention conditional upon the occurrence of an act. Older case law seems to impose an almost irrefutable presumption against the acquisition of a domicile of choice. More recent cases appear to make a distinction between a likely and unlikely contingency. Where the contingency is not sufficiently clear, it will not prevent the acquisition of a domicile of choice. On the other hand, where it is clear, the court looks at the likely possibility of it happening. If so, this will prevent the acquisition of a domicile of choice.

Abandonment of domicile:-

A dependent person will, on independence, retain his or her domicile of dependency as a domicile of choice until it is abandoned at any time thereafter. A domicile of choice will be abandoned when a person departs from a country and the intention to return has withered away. A domicile of origin endures until a domicile of choice is acquired. Once a domicile of choice is abandoned, the domicile of origin revives until another domicile of choice is acquired[5].

MATRIMONIAL DISPUTES

A marriage, as understood in Christendom, may be defined ‘as the voluntary union for life of one man and one woman, to the exclusion of all others’. Where one of the parties does not voluntarily consent to the marriage, the marriage will be declared invalid. The union must be of one biological man and one biological woman, otherwise it will be void. With the advent of English Legal system in India Marriage is more or less has become a ‘contract’.

Court’s Role and Duty in Matrimonial Cases

In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. For example, Saskatchewan Canada stands alone as a province in Canada that allows more than one spouse at a time per person. Each province has similar marital property laws, but what happens when one or more provinces ignore the federal polygamy law? In this case some of the spouses receive/give marital property from two or more simultaneous spouses, while others may only receive/give from one spouse only, depending on whether their home province allows polygamy. The case becomes even more complicated if foreign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties' nationalities and residences do not match; when there is property in a foreign jurisdiction; or when the parties have changed residence several times during the marriage[6].Each time a spouse invokes the application of foreign law, the process of divorce slows down, as the parties are directed to brief the issue of conflict of laws and provide translations of the foreign laws. Different jurisdictions follow different sets of rules. Before embarking on a conflict of law analysis, the court must determine whether a property agreement governs the relationship between the parties. The property agreement must satisfy all formalities required in the country where enforcement is sought. Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when couples enter a property agreement, stringent requirements are imposed, including notarization, witnesses, and special acknowledgment forms. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be “so ordered” by a judge. This is done in order to ensure that no coercion or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, , lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context[7].

Choice of law

The applicable law in nullity suits depends on the classification of the relevant issue, that is, whether it is an issue of formal validity or an issue of essential validity. Lack of parental consent has been classified as an issue of form. In relation to defects affecting consent, such as fraud, duress, mental illness, and so forth, the weight of judicial opinion seems to favor reference of the issue of consent as one of essential validity and, therefore, subject to the law of domicile.IN relation to physical defects or incapacity, the position is unclear. Such defects have been classified as issues of form in some instances, and as issues of capacity in others[8].

Recognition of foreign divorces, legal separations and Annulments

Where a decree is granted elsewhere ,then conflict arises and court may or may not recognize it .Recognition depends upon various grounds as like is there any bilateral treaty of any such convention where both parties and state of filing suit is party to it or not.eg private law agreements like Convention on the Rights of the Child (CRC), the Convention on the Elimination of Discrimination Against Women (CEDAW), Draft Declaration on the Rights of Indigenous Peoples, the Hague Convention on the Recognition of Divorces and Legal Separations, as well as provisions from CEDAW and the International Covenant on Civil and Political Rights and the regional convention reflected in the European Council regulations on divorce. In the absence of a valid and enforceable agreement, here’s how the conflict of law rules work:

Movable v. Immovable - In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has been no subsequent change in the spouses’ domicile.Full Mutability Doctrine - property relations between spouses are governed by their latest domicile, whether acquired before or after the marriage. This is also the norm in England, except for a few cases where severe injustice results from a harsh application. In those cases, the court also examines whether newly acquired property can be traced back to property owned before the change[9]. Immutability Doctrine - the original personal law of the parties at the time of marriage continues to govern all property including subsequently acquired property, regardless of a later change in domicile or nationality. E.g.in Israel: “property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement “Note that the Israeli application of the Immutability Doctrine does not distinguish between personal and real property. Both are subject to the law of domicile at marriage.Partial Mutability or Mutability of New Acquisition - this is the American approach to conflicts of law in matrimonial property division cases. All movable property acquired during the marriage is subject to the parties’ domicile law at the time of acquisition, and not that of the original or intermediate domicile. What was acquired before the marriage is governed by the law of the parties' domicile at the time of marriage. Thus, if rights vested in a property when and where it was purchased, it would not be adversely affected by a later change of domicile.Lex Fori - In many cases, courts simply avoid this complicated and expensive analysis by applying their local law to the parties' entire property, even if there is a foreignelement. This is based on the assumption that laws around the world are basically similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum’s law applies to all its aspects.

Harmonization:-

As Private International Law is also known as Conflict of Law so there’s need of harmonization while adjudicating disputes where foreign element is present. It’s the moral duty of courts to harmonize various legal systems to provide justice to the parties. The very object of law i.e. justice should not be defeated, thus there’s a need of harmonization .To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. The Hague Convention on Private International Law is a treaty organization that oversees conventions designed to develop a uniform system[10].

CONCLUSION

Law in the field of Conflict of law or Private International law is continuously developing and changing with the change in society. Law can never be static it is always dynamic as law is for the society not society of the law, so with the change in society law too changes. People are moving to other states for various reasons like trade and commerce, job, tourism etc. and thus if any dispute arises and parties cannot settle dispute amicably then rules of PIL is applied[11]. Family Law is that type of law which is not uniform in nature, even within India, there are different Family Law for different sections of society. Family Law derives its origin from Religion and customs, so it’s very difficult to bring uniformity in it unlike criminal law. A sun like principles of criminal law which are somewhat similar in nature through globe, family law on the other hand is much more complex as religion, place/domicile, and customs play vital role in it.



[1]“ CHOICE OF LAW IN INTERNATIONAL FAMILY AND SUCCESSION LAW” by MAGDALENA PFEIFFER (www.ilaw.cas.cz/tlq assessed on 04/02/2018)


[2] Abla J Mayss,LLM,PhD, Licence en Droit,” Principle of Conflict of law”, Cavendish publishing limited, London, Sydne,3rd ed,1999.


[3] https://abookmedhin.files.wordpress.com/2010/12/principles-of-conflict-of-laws.pdf access on 04/02/2018.


[4] http://conflictoflaws.net/2006/articles-on-family-law-and-private-international-law/ access on 04/02/2018


[5] “Guide on international private law in successions matters” by DAN ANDREI POPESCU Ph.D Associate Professor.


[6] https://www.lawctopus.com/academike/private-international-law-inter-parental-custody-disputes-india/ assessed on 04/02/2018


[7] https://www.justia.com/family/international-family/ assessed on 04/02/2018


[8] http://www.legalserviceindia.com/articles/frpca.htm accessed on 04/02/2018


[9] http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/stark0207.htm accessed on 04/02/2018


[10] https://studiegids.leidenuniv.nl/en/courses/show/59943/Child-and-Family-Law-in-Private-International-Law assessed on 04/02/2018.


[11] https://www.scribd.com/document/134497921/PRIVATE-INTERNATIONAL-LAW-AND-FAMILY-LAW-pdf assessed on 04/02/2018.

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