The two common goal exceptions are 1 marriages in

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The two common goal exceptions are 1. Marriages in situations where compliance with the local law is impossible for example when you get married in a place where no laws apply or in an uninhabited region. 2. Where the marriage occurs in a country under hostile occupation and at least one of the parties to that marriage is a member of the occupying forces. In these two exception the law that will then apply is the common law as to formalities of marriage. That marriage will be valid so long as the formal requirements under common law are met. 1. they should take each other as man and wife in the presence of each other and that an ordained priest should perform the ceremony. Preston v. Preston Taczanowska v. Taczanowski Two Polish nationals, domiciled in Poland were married in Italy in 1946 by a Polish Army Chaplain, an episcopally ordained priest of the Roman Catholic Church, and therefore their marriage was valid 54
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according to the English Common Law. The husband was serving in the Polish army in occupation in Italy. The ceremony did not comply with the local forms and was therefore void by Italian domestic law, but it would have been recognised as valid by that country’s private international law if it was valid by the national law of the parties. It was however, not valid by Polish law. The parties moved to England and later the wife petitioned for a decree of nullity on the ground that the marriage was void for non- compliance with the local forms. The court of appeal felt that since the parties were presumed not to have submitted themselves to the Italian law of the place of celebration, that law did not have to be applied. It was considered that there will often be no submission by a member of the military forces in occupation of a country and as such it was held to be the case here. As Italian law was not applicable and the law of the parties’ domicil was considered irrelevant, English common law was applied and the validity of the marriage upheld. ESSENTIAL VALIDITY This is concerned with issues of capacity and the applicable law is the law of the parties domicile. The problem that arises to the application of this rule is what test is to be applied to determine the parties’ domicile. You may find parties domiciled in different countries at the time of contracting the marriage or they may even intend to acquire a different domicile after they get married. So which law applies. The traditional theory which has been used is the dual domicile test. Under this theory it is stated that capacity to marry will be governed by the law of the parties and ante-nuptial domicile i.e. each party must have capacity according to the law of his/her domicile at the time of the ceremony to marry. This has been applied in a number of cases Pugh v. Pugh A British officer, domiciled in England but stationed in Austria, married a Hungarian girl in Austria in 1946. The girl whose domicile of origin was Hungarian, had gone to Austria with her parents to escape from Russian advance.
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  • Spring '16
  • Law, customary law

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