Essential Validity Of Marriage

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Meaning of Marriage
Marriage is a contract by which a man and a woman express their consent to create the relationship of husband and wife. This contract, however, differs fundamentally from a commercial contract in the following ways:
 As a general rule, it can only be concluded by a formal public act.
 It can only be dissolved by a formal public act.
 More importantly, it creates a status which is taken into account in relation to, for example, succession, tax, legitimacy of children, and to some extent in relation to immigration laws .
According to Tomlin’s Dictionary, “Marriage is a civil and religious contract, whereby a man is joined and united to a woman, for the purpose of civilized society” .
Each legal system determines
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That the marriage conforms in its essentials with the law of each party’s domicile at the time of marriage; and
2. That it has been performed in accordance with the formal requirements of the law of the place where the ceremony takes place, generally called Lex loci celebrationis.
Essential validity of marriage / capacity to marry:
Essential validity is the first aspect of validity of marriage under Private International Law. The three elements involved in Essential validity of marriage are:
1. An agreement, which may be affected by factors like mistake, duress, undue influence or fraud;
2. Capacity to marry i.e., legal ability to marry at all; and
3. Freedom from legal prohibitions of the intermarriage .
Capacity to Marry
Essential validity includes all questions of validity other than those covered by formal validity. Capacity to marry falls within essential validity. Capacity to marry must strictly to be confined to rules which say that a particular class of person lacks a power to marry which other people possess (for instance, rule that a person below a certain age may not marry). Practically, however, capacity to marry also includes cases where the reason for the invalidity, is that such a marriage relationship is objectionable in the eyes of law (for instance, rules prohibited marriages between relatives of certain degrees). Capacity to marry is not concerned with the whole field of essential validity, as in it does not include the consent of the parties, or non-consummation
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There is no specific authority in England on the matter though observation by the Court of Appeal, in a case where the issue was whether a marriage by proxy was valid, observed that the mode of giving consent, as opposed to the fact of consent would be regulated by the lex loci celebrationis. It was also held that the consent is regulated by the law of the domicile of the parties. The question that comes up is as to which lex domicilii has to be considered, of both parties, or of the party whose consent is in question. The consensus seems to be that, though there is no decision on the subject, should be domiciled of the man/woman who is alleged to have not given consent. In Davison v. Sweeney, it was enunciated that alleged absence of consent was a matter for a domicile of the party

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