Conflict of Laws - Conflict of Law Rules in Matrimonial Cases

Conflict of Law Rules in Matrimonial Cases

In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. For example, Saskatchewan Canada stands alone as a province in Canada that allows more than one spouse at a time per person. Each province has similar marital property laws, but what happens when one or more provinces ignore the federal polygamy law? In this case some of the spouses receive/give marital property from two or more simultaneous spouses, while others may only receive/give from one spouse only, depending on whether their home province allows polygamy. The case becomes even more complicated if foreign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties' nationalities and residences do not match; when there is property in a foreign jurisdiction; or when the parties have changed residence several times during the marriage. Each time a spouse invokes the application of foreign law, the process of divorce slows down, as the parties are directed to brief the issue of conflict of laws and provide translations of the foreign laws.

Different jurisdictions follow different sets of rules. Before embarking on a conflict of law analysis, the court must determine whether a property agreement governs the relationship between the parties. The property agreement must satisfy all formalities required in the country where enforcement is sought.

Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when married couples enter a property agreement, stringent requirements are imposed, including notarization, witnesses, special acknowledgment forms. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be “so ordered” by a judge. This is done in order to ensure that no undue influence or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, free will, lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context.

In the absence of a valid and enforceable agreement, here’s how the conflict of law rules work:

• Movable v. Real Estate - In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has been no subsequent change in the spouses’ domicile.

• Full Mutability Doctrine - property relations between spouses are governed by their latest domicile, whether acquired before or after the marriage. This is also the norm in England, except for a few cases where severe injustice results from a harsh application. In those cases, the court also examines whether newly acquired property can be traced back to property owned before the change.

• Immutability Doctrine - the original personal law of the parties at the time of marriage continues to govern all property including subsequently acquired property, regardless of a later change in domicile or nationality. This is the Continental approach in France, Germany and Belgium. Also, with certain reservations, see Art. 7 of the 1976 Hague Convention on Marriage and Matrimonial Property Regimes. Also in Israel: “property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement”. Note that the Israeli application of the Immutability Doctrine does not distinguish between personal and real property. Both are subject to the law of domicile at marriage.
• Partial Mutability or Mutability of New Acquisition - this is the American approach to conflicts of law in matrimonial property division cases. All movable property acquired during the marriage is subject to the parties’ domicile law at the time of acquisition, and not that of the original or intermediate domicile. What was acquired before the marriage is governed by the law of the parties' domicile at the time of marriage. Thus, if rights vested in a property when and where it was purchased, it would not be adversely affected by a later change of domicile.
• Lex Fori - In many cases, courts simply avoid this complicated and expensive analysis by applying their local law to the parties' entire property, even if there is a foreign element. This is based on the assumption that laws around the world are basically similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum’s law applies to all its aspects.

Note that Lex Fori also applies to all procedural relief (as opposed to substantive relief). Thus, issues such as the ability to grant pre-trial relief, procedure and form, as well as statutes of limitations are classified as “procedure” and are always subject to domestic law where the divorce case is pending.