Rules governing choice of law in matrimonial disputes.

Provide an answer to the following conflict of laws question:  'considering the below facts, pursuant to the conflict laws of Tanzania, which national law is designated to govern the marital property regime of spouses and its consequences?

The relevant facts to take into account are as follows:

- The woman and her husband married in Belgium on october 16, 1991

- No marital contract

Tthe woman has American nationality by birth and French nationality since 2000. Her husband has French nationality by birth(so no common nationality at the time of marriage)

At the moment of marriage, woman lived in Belgium. Her husband lived full time in congo for proffessional purposes and 

- First marital residence :Tanzania (1992)

 

PRELIMINARY

Private international law is a set of procedural rules that determines which legal system and which jurisdiction applies to a given dispute. These laws are commonly used where there is a dispute between parties who originate from two different regions and such disputes may be in contracts, matrimonial issues, adoption of children and divorce, there is many areas where the disputes between people of different origin may arise and when happen disputes a matter of choice of law arise. A problem in these disputes which involve people of different countries is the choice of law, selection of legal regime which should apply to settle the dispute.  There is many international regulations and conventions which established a number of principles and rules which is to be followed when one choose a law to be used in his or her disputes. Take an example of a Council Regulation , is among the acceptable international regulations which used to settle matters concerning matrimonial disputes, divorce, adoption and other family related disputes.

RULES GOVERNING CHOICE OF LAW IN MATRIMONIAL DISPUTES

The Council Regulation  has a lot of proposed rules and principles which guide a person in selecting a law which is to be used in settling his or her dispute. The following are the proposed rules and principles provided by Council Regulation to be used when one is in need to choose a law to be applied in solving his or her dispute.

Based on the principle of autonomy of will, the law applicable to the matrimonial property regime is designated by the spouses or future spouses through a convention subject to the fulfillment of some formal conditions. In this principle, a spouse is allowed under the regulation willingly to point or choose a law which is to be used in solving a matrimonial dispute. An autonomy by a spouse to choose a law is not left as it is but there is a number of rules that are to be followed when one choosing a law. This choice is limited to the following rules expressly provided by article 16 of the regulation;

Law of the State where the spouses (future spouses) or one of them has his common habitual residence at the time of concluding the agreement. This rule direct the spouses to choose a law of the state where a marriage was entered, it is not a matter of nationality but a person can choose a law of a state where he or she resided at a time when a marriage was concluded. In this rule a law can be chosen to be used in solving disputes from either common habitual residence of a husband or a wife at a time where a marriage between them was concluded. 

Law of the state whose national is one of the spouses at the time of concluding the agreement. In choosing a law to be applicable in deciding matrimonial disputes, a spouse is required under this rules to choose a law which is connected to them or one of the spouse’s nationality at the time where marriage agreement was entered by the couple. A spouse is not allowed to choose a law out of that limit, a spouse must choose either a law of his nationality or law of the forum of his partner (wife). Under this rule no one can choose a law which is not connected to nationality of one or both spouses for the purpose of deciding matrimonial problems if there was an autonomy by spouses to choose a law to be applicable in their dispute.  

If the spouses have not concluded an agreement on choice of applicable law for the matrimonial regime, the law is determined by the habitual residence or nationality of one or both spouses. This is provided under Article 17, and there is a number of rules which go together with this principle. If the spouses due to any reason fails or failed to conclude applicable law of solving matrimonial disputes a common system will be used to choose a law regarding nationality of  both or one spouses at time of marriage or a place of residence where a marriage was celebrated. 

The law of the state where is the common habitual residence of the spouses at the time of their marriage, respectively where the spouses choose their common habitual residence after the marriage. If spouses fail to choose a law to be applied, a court or tribunal may use a common system of looking the habitual residence of spouses at the time where marriage was concluded. After marriage if the spouses choose a place to establish their life then a court or a tribunal may use laws from that residential area where the spouses resided at the first time after their marriage .

In Warrender v.  Warrender,  Sir  George  Warrender  born  and  domiciled  in  Scotland  married  an  Englishwoman  in  England according  to  the  rites  and  ceremonies  of  the  Church  of  England;  but  instead  of  changing  his domicile  he  meant  that  his  matrimonial  residence  should  be  in  Scotland  where  he  had  large landed estates.   Having  lived  a  short  time  in  Scotland  they  separated.  Sir  George  continuing  domiciled  in Scotland  commenced  a  suit  against  her  in  the  Court  of  Session  for  dissolution  of  the  marriage on  the  ground  of  adultery  alleged  to  have been  committed  by  her  on  the  continent of  Europe.   It  was  objected  that  this  being  a  marriage  celebrated  in  England  a  country  in  which  by  the then  existing  law  marriage was indissoluble the Scotch court had  no  jurisdiction  to  dissolve. 

In  holding  so  the  House  of  Lords  cases  were  relied  upon  in  which  an  Englishman  domiciled  in England  being  married  in  England  and  while  still  domiciled  in  England  having  been  divorced by  decree  of  the  Court  of  Session  in  Scotland  and  having  afterwards  married  a  second  wife  in England  his  first  wife  being  still  alive  he  was  convicted  of  bigamy  in  England  and  held  by  all the  judges  to  have  been  rightly  convicted  because  the  sentence  of  the  Scotch  court  dissolving his first  marriage was a  nullity.   

But  your  Lordships  unanimously  held  that  as  Sir  George  Warrender  at  the  time  of  his  marriage was  a  domiciled  Scotchman  and  Scotland  was  to  be  the  conjugal  residence  of  the  married couple  although  the  law  of  England  where  the  marriage  was  celebrated  regulated  the ceremonials  of  entering  into  the  contract  the  essentials  of  the  contract  were  to  be  regulated  by the  law  of  Scotland  in  which  the  husband  was  domiciled  and  that  although  by  the  law  of England  marriage  was  indissoluble  yet  as  by  the  law  of  Scotland  the  tie  of  marriage  might  be judicially  dissolved  'or  the  adultery  of  the  wife  the  suit  was  properly  constituted  and  the  Court of  Session  had  authority  to dissolve the  marriage.

The choice of law in the case law above based on place where marriage was contracted and the conjugal residence opted by spouses as a first marriage residence.

Nationality of the spouses or spouse, nationality of the spouses or one of the spouse may be used to determine a law to be used in solving matrimonial disputes. Laws from a state of nationality of a man or woman may be used in solving the dispute between wife and husband of two different origins. 

The law of the State with which the spouses jointly have the closest connections, taking into account all the circumstances, in particular the place where the marriage was celebrated. In some circumstances, spouses conclude marriage at different places apart from the home nations and residential areas. In some situations you may finds that a marriage concluded abroad to a state which is not home nations or residence of spouses and in these circumstances may led a court or tribunal which decide matrimonial issues to use laws of where a marriage was concluded.

RECOGNITION OF MARRIAGES WITH FOREIGN ELEMENTS IN TANZANIA

The Law of Marriage Act  of Tanzania recognizes marriage contracted outside Tanzania by Tanzanians or between Tanzanians and foreigners or by foreigners who used to reside in Tanzania. Section 36  of LMA recognizes all marriages contracted abroad if, (a) it was contracted in a form required or permitted by the law of the country where it was contracted; (b) each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile; and (c) both parties freely and voluntarily consented to the marriage or, where either party did not freely and voluntarily consent to the marriage, the parties have freely and voluntarily consummated the marriage; (d) where either of the parties is a citizen of the United Republic or is domiciled in Mainland Tanzania, both parties had capacity to marry according to LMA.

The recognition of these marriages empowers spouses to petition for divorce or any right through the courts of Tanzania. Section 77(1)(a),(b) and (c) of LMA allows individuals to petition the court for a declaratory decree— (a) if he or she is domiciled in  Tanzania; (b) if he or she is resident in  Tanzania; (c) where the decree sought is as to the validity of a ceremony which took place in  Tanzania and purported to be a marriage. In regarding the above provision, the laws of Tanzania welcomes foreigners to petition any right concerning their marriage if their case fall within prescription provided in the above section.

In the case of Thanda Domzalski v. Henry Michael Domzalski , the petitioner petitioned successful for separation and maintenance of their one issue. Respondent Aggrieved by the decision of Kisutu RMs hence lodged an appeal on several grounds including jurisdiction. The appellant believed that, the trial court had no jurisdiction to entertain the matter to which parties contracted their marriage abroad with a very different legal regime. The High Court dismissed the appeal for want of prosecution, there was no grounds which hold water by applicant. An applicant applied for extension of time to file application to set aside order which dismissed his appeal, his application was granted on other grounds not jurisdiction.

CONCLUSION

Regarding the facts adduced in scenario of this question, the laws which were to be applicable in handling marital properties of the spouses are the laws of either Tanzania or Belgium basing on the following grounds. The laws of Tanzania can be used as a legal regime to settle marriage disputes between parties of the scenario because they chose Tanzania as their first conjugal residence. LMA allows individuals to petition for their rights if they fall within provision of section 77 and 36. Also, the laws of Belgium can be used to deal with marital properties of the parties because it is where the marriage contracted by parties. Generally, choice of law depends on domicile of parties, residence of parties, nationality and other connected factors between parties.

REFERENCE

CONVENTIONS

Council Regulation EU No 1259/2010 of 20 December 2010

Romanian  Civil Code of September 2003

Council Regulation (EC) no. 2201/2003 of 27 November 2003

CASE LAWS

Warrender v. Warrender (1835),  2 Cl.  & Fin.  488

ONLINE SOURCES

www.europeanregulation.com

https://www.merriam-webster.com/legal/renvoi