Law applicable to the formal validity of marriages and consular marriages

Abstract

The number of marriages possessing foreign elements is increasing rapidly in today's globalized world where international movement of people across nation states’ boundaries has gained significant momentum. In order to conclude a legally valid marriage, many of the modern legal systems stipulate that certain substantive and formal conditions shall be satisfied by the parties to the marriage. However, the scope and meaning of these conditions vary considerably from one legal system to the other. Accordingly, the dichotomy between the conditions of form and substance related to marriages result in the adoption of different connecting factors for the formal validity and the essential validity of marriages with foreign elements. It is agreed, by the private international law regulations of almost all legal systems that formal validity of marriages should be governed by lex loci celebrationis (LLC), the law of the place where the marriage is solemnized. LLC, which is regarded as one of the oldest and firmly established choice of law rule of all times, has also been incorporated into the international agreements on the subject in hand. However, it is hard to say that there is an international uniformity with regard to the application and interpretation of the said rule. This study aims to shed light on the private international law regulations and case law of certain countries belonging to Anglo-saxon and Continental Europe legal systems regarding the law applicable to formal validity of marriage and consular marriages as well as the international agreements on one hand, and the Turkish private international law regulations, court practices and doctrinal opinions on the other hand. By examining in a broad legal perspective of the LLC rule and consular marriages, it is intended to bring forward concrete solutions for achievement of a uniform approach on resolution of conflict of laws problems with respect to the formal validity of international marriages and prevention of limping marriages, where a marriage is regarded as formally valid according to one domestic legal system while invalid according to the other.