Marriage by the State or Married to the State: Choice of Law in Marriage and Divorce

Abstract

This paper discusses the evolution of choice of law in matters of marriage and divorce in relation to that of substantive marriage law, focusing primarily on heterosexual marriages. It suggests that while in earlier times (and until World War II) there was a close correlation between the substantive regulation of marriage and divorce and the choice-of-law rules in this field (through the common concept of marriage as a matter of status), this correlation no longer exists. The paper demonstrates the current structure and purpose of marriage and divorce in their various legal manifestations which are quite different to the concept of status, and compares it to the current choice-of-law rules on the matter in which the person-state relation is still embedded, concluding that though substantive family law has changed immensely, choice-of-law rules have remained substantially the same. It is argued that the early view of marriage and divorce as matters of state concern was reflected in the choice-of-law rules, but that these rules have not internalised changes that have occurred in the way state law treats marriage today, according to which marriage is now regarded far more as a private matter. In order to re-establish the close relationship between substantive law and the choice-of-law rules, the paper identifies leading theoretical features of modern-day marriage law, including the principle of party autonomy. The paper concludes by suggesting ways of incorporating the modern view of marriage and divorce in choice of law.