A Study On Matrimonial Matters In Conflicts Law

The dissertation elaborates three main issues of the marriage conflicts law, that is choice of law in marriage, jurisdiction and choice of law in divorce, and choice of law in marital property respectively. The full text is divided into five chapters.The introductory chapter points out that we should attach importance to the research on the marriage conflicts law because great differences and discrepancies of concrete systems and rules in this area still exist though it is the most long-developed part in private international law. Moreover, recent decades of international society has unprecedentedly become a hotbed that breeds multinational marriages and the corresponding problems in marriage conflicts law. We noticed that in the 20th century developments have been subtly influenced and reforms have been strongly urged in marriage conflicts law by changes in the marriage substantive law, such as giving husband and wife equal rights in family affairs, regarding mutual consent of both parties as the basis of marriage, relaxing both the formal and essential requirements of marriage; affirming the freedom in divorce, adopting the irretrievable breakdown of marriage not the fault of one spouse as the divorce cause; giving wife equal rights in the control and administration of family properties, etc. Marriage is a typical kind of status, so the personal law is still the most common and important formula of attribution in marriage conflicts law. The standard of the personal law, however, is splitted into two opposing doctrines: one is the nationality doctrine upheld by the civil law countries and the other is the domicile doctrine upheld by the common law countries. Such conflict is pervasive in the marriage conflicts law.Chapter â…¡ deals with choice of law problems in the validity of marriage.Although several countries do the opposite, most countries in the world distinguish between formal requirements and essential requirements of a marriage and make each type of requirements subjected to different choice-of-law rules. In regard to formalities, the general rule is the lex loci celebrationis rule which is recognized everywhere, but the personal law also takes its role which is either double applied with or, more commonly, alternative applied to the law of the place of celebration; in regard to essential requirements, conflicts rules are more complicated, because eachconnecting factor such as domicile, nationality, place of celebration and place of forum seems to affect the choice of law process. In order to find a more appropriate applicable law, new approaches have been quested and tested among which the "proper law" approach is most famous. The English writers have suggested this approach, which means that both formal and essential requirements of a marriage should be governed by the law of the country which has the most real and substantial connection with the marriage. Due to its lack of certainty and clearness, the proper law approach in the validity of marriage has not obtained a widespread support though it is very successful in areas of contract and tort.It is strongly suggested that reforms should be taken to the present choice-of-law rules concerning marriage in China. The most important thing is to classify formal requirements and essential requirements and make them subjected to different choice-of-law rules, because a uniform application of the law of the place of celebration means that we have to apply a foreign law when the marriage is celebrated in a foreign country by two Chinese people. Judges will have to make use of the "public order" more frequently to avoid the application of foreign law which is found intolerable to them. This problem, however, should have been resolved by the application of personal law to essential requirements.Chapter III discusses choice of law problems in divorce.Here the divorce issue is limited to the dissolution of marriage and does not include distribution of the marital property and custody of the children. In the second half of the 20th century, more and more countries have accepted the "favor divorce" policy in the private international law, and this trend manifests itself both in jurisdiction and choice-of-law of divorce. In this chapter, jurisdiction is dealt with exceptionally in addition to choice-of-law, because these two issues are so intimately interrelated in divorce conflicts law that neglect of either one would be inappropriate.Bases for jurisdiction over divorce claims include three main connecting factors, that is, nationality, domicile and habitual residence. When establishing jurisdiction^ rules over divorce, we should try to make a balance between two kinds of contrary aims, one of which is to broaden personal rights to divorce in local courts, the other of which is to maintain a minimum international system. So far, there are four bases for jurisdiction over divorce have been widely adopted which include the habitualresidence of the respondent, the habitual residence of the plaintiff, the common nationality of both parties and the nationality of the plaintiff. As far as China is concerned, we should place more value on the connecting factors of domicile and habitual residence. Moreover, we should regard the nationality and the domicile of the plaintiff as two independent bases for jurisdiction over divorce.The applicable law for divorce is either lex fori in the common law countries or the national law in the civil law countries; besides, new choice-of-law rules such as party autonomy and alternative conflict rules have emerged recently. The lex fori rule can guarantee the personal right of action, further the substantive policy of favor divorce and bring convenience to the administration of justice. The lex fori rule, however, also has some defects, the most serious one of which is that with the much extensive bases of jurisdiction, the connection between the place of forum and the parties is not very strong or even very tenuous, therefore, the lex fori rule will encourage people to do forum-shopping and result in large quantities of "limping marriages". Another basic rule governing divorce is the rule of the national law, which creates many problems during the process of determining what is the national law when the parties don't have a common nationality or either party has more than one nationality or has no nationality at all.Chapter IV is concerned with choice of law problems in marital regime. Party autonomy has become the main rule in matrimonial property, but unlike in the area of contract, the limits on the exercise of autonomy in marital regime are still very strong. When lack of such autonomy, the marital regime will have to be governed by an objective connecting factor, that is, the personal law of the parties. In order to bring out equal rights between husband and wife, the rule of husband's personal law has been abandoned; nevertheless, it produces a difficult question that is how to determine the applicable law when the spouses do not have a common personal law. As far as the personal law is concerned, it means the law of the matrimonial domicile in the common law countries or means the law of the common nationality in the civil law countries. We should adopt the law of the domicile as a principle rule because the matrimonial property has a more substantial connection with the living center of both parties.As to the problem of whether we should make a distinction between movable andimmovable property, the general principle of choice of law in matrimonial property is the system of unity, which means that both movable and immovable property are governed by the same law, that is, the common personal law, especially the law of the common domicile of both parties, because with its nature of relating to status, the matrimonial property should be treated as an abstract unity. However, when a third party is involved, the matrimonial property should be treated as the general property and consequently be governed by the rule of lex situs.The last problem in matrimonial property is whether the applicable law should be changed incidentally when the connecting factor of personal law has changed. Two kinds of opposing resolutions are proposed, one of which is called the principle of mutability upheld by common law countries, and the other of which is called the principle of permanence upheld by civil law countries. In a moving and opening society as such, we should adopt the principle of mutability in order to satisfy the practical needs of social transitions and to unify the applicable law of matrimonial property and intestate succession.The final chapter points out that developments in marriage conflicts law are consistent with the general trend of private international law influenced by the "American conflicts revolution". Now the Choice-of-law rules in matrimonial affairs has become more and more subtle and refined, admitted certain flexibility, and exposed its characteristic of "content-orientation" and "result-orientation". Moreover, the particular approach of international coordination in marriage conflicts law has averted itself from reducing the gap of conflicts rules between various countries to establishing new rules independent from any country in order to satisfy the needs of the whole international society. At last, the final chapter also tentatively proposes the conflicts rules on matrimonial matters in order to be helpful to our ongoing legal reforms in private international law.