Capacity to Marry in the Conflict of Laws: Some Variations on a Theme

Problems of matrimonial capacity in the conflict of laws have traditionally been said to be resolved through a distributive application of the two personal laws in presence - to each his or her own law.\u27 Yet the proponents of this dual domicile doctrine have met strong opposition from those who would recognize a paramount interest on the part of the State wherein the marriage is to be fixed, rather than that from which the parties may have come, in determining its validity. Savigny in Germany, 2 Bartin in France, 3 Cook in the U.S.A., 4 and Cheshire5 in England have most vigorously advanced the case for application of the law of the intended matrimonal home, but they have been far from alone in advancing such arguments. 6 Two recent decisions moreover - one from England 7 and one from Ontario 8 - have provided further support for their theories. The purpose of this note is not to restate well known arguments in favour of either position but rather to explore briefly a possible via media between the two. The thesis to be defended is that what have been seen generally as competing and contradictory theories may in fact be able to work together in some harmony, permitting effective recognition of the interests involved without creating intolerable conditions of uncertainty