Marriage and Capacity: Private International Law

When the parties to be married are from different states and desire to register their marriage either within their country or a third country, the issue of private international arises. The Muluki Civil Code, 2074, includes provision dealing to the parties' capacity for marriage.

Capacity of the parties for marriage:

When the question about the capacity of spouses to get married arises, it shall be dealt as per their national laws. If their nationality is not determined than their capacity shall be governed by the laws of where they were residing (habitual resident). As per the international laws The Hague Convention on Celebration and Recognition of the validity of marriage, 1978, the capacity of the parties will be determined as per their nationality.

Shaw v/s Gould, the marriage is invalid unless, according to the law of the domicile of both contracting parties at the time of the marriage, they each have capacity to the contact that particular marriage.  

Lawrence v/s Lawrence (1985), question of essential validity of the marriage including their personal capacity, should be governed by the law of the place where they establish their joint home.

As per the Muluki Civil Code, 2074, the legal capacity of the natural person foreigner will be determined as per their national laws. If the nationality of a person is not determined than in such case, the capacity of an individual will be determined by the legislation of their country of habitual residence, even if this is also not known. Individuals must follow the laws of their current nation of residence.  When the foreigner or Nepali citizen tends to get married, each individual must have the competence, qualification, and conditions prescribed by the legislation of the country of his or her nationality. While, the laws of Nepal will regulate the formalities that foreigners must complete when getting married in Nepal. But as long as the procedures outlined in the relevant nation's legislation are followed when getting married at a foreign embassy or consulate general located in Nepal.

Consequences of marriage:

The law of the nation of which they are citizens will govern the couple's post-marriage matrimonial connection and the consequences of the union if both spouses are of the same nationality, and if their nationalities are different, they are subject to the laws of the country in which they routinely dwell (habitual residence), and if even those laws differ, they are subject to the laws of the country in which they now reside. If the consequence of marriage cannot be determined by their nationality or their habitual residence or where they now reside, it shall be determined according to the law of the country where their marriage conducted.