Conflict of Nullity Laws

Conflict Of Nullity Laws

In conflict of laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. As in English Law, some classify marriages as either void or voidable; others have no concept of a voidable marriage; still others have a third category of “non-existent” marriage (e.g., Nichtehe in Germany). The decree of nullity may therefore be no more than a declaration that no marriage had ever come into being, i.e. it is void ab initio, or it may be equivalent to a decree of divorce, i.e., the marriage requires a decree to dissolve it.

There is also wide disagreement internationally as to which choice of law rules should apply. In some states, the lex loci celebrationis deals with most issues of validity; in others, there is agreement that the lex loci celebrationis should determine whether a marriage is formally valid, but disagreement as to which connecting factor: nationality (the lex patriae), domicile (the lex domicilii) or habitual residence, should define essential validity. The Hague Convention on Celebration and Recognition of the Validity of Marriages (1978) makes only limited progress towards a harmonised position. In the EU, the "Brussels II" Regulation 1347/2000 of 29 May 2000 (effective from 1 March 2001) sets out the rules on jurisdiction, and the recognition and enforcement of nullity judgments and of parental responsibility orders for the children of both spouses (the "new Brussels II" Regulation 2201/2003 applies to cases arising on or after 1 March 2005, but the substance of the rules is unchanged).