International matrimonial law

International matrimonial law is an area of private international law (or conflict of laws in the United States). The area specifically deals with relations between spouses and former spouses on issues of marriage, divorce and child custody. In the last 50 years, the States Members of the Hague Conference on Private International Law have attempted to harmonize domestic matrimonial laws and judicial rulings across international borders in these areas.

The Hague Convention that harmonizes different marriage laws, the Convention on the Celebration and Recognition of the Validity of Marriages, was concluded at The Hague on 14 March 1978 and entered into force on 1 May 1991. Article 9 of the Convention holds that, “A marriage validly entered into under the law of the State of celebration or which subsequently becomes valid under that law shall be considered as such in all Contracting States, subject to the provisions of this Chapter.” In short, one Contracting State must recognize a marriage legally performed in another contracting state. Currently only three states (Australia, Luxembourg, and the Netherlands) have ratified the Convention. Another three (Egypt, Finland, and Portugal) have signed it. One of the reasons that the Convention may have so few Contracting States is that states have long observed the principle of comity which has been defined in the United States as the “recognition that one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.”

The Hague Convention that compels Contracting States to recognize divorces and legal separations obtained legally in another contracting state is the Hague Convention on the Recognition of Divorces and Legal Separations concluded on 1 June 1970 and entered into force 24 August 1975. Article 1 of the Convention states, “ The present Convention shall apply to the recognition in one Contracting State of divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings officially recognized in that State and which are legally effective there.” The Convention makes clear that it does not apply to any determinations about property or child custody that may accompany a divorce. Only the state of being divorced or legally separated must be recognized. There are certain exceptions. According to the Convention a divorce need not be recognized if both parties were nationals of a state which did not provide for divorce at the time of the divorce (Article 7), if the respondent in a divorce proceeding was not given an adequate chance to present his or her case (Article 8), if to do so would be “incompatible” with a previous determination as to the status of the spouses in the State where they are seeking recognition (Article 9), or if to recognize such a divorce would be manifestly incompatible with the state’s public policy (Article 10). In addition, Article 20 of the Constitution allows a Contracting State to file a reservation stating that that state will not recognize a divorce if at the date of the divorce, “one of the spouses was a national of a state whose laws did not provide for divorce.”

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