Conflict of law rules in marriage: an approach based on the co-ordination of the relevant policy considerations

Tahenni, Hamid (1995) Conflict of law rules in marriage: an approach based on the co-ordination of the relevant policy considerations. PhD thesis, University of Glasgow.

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The present thesis is not a mere overview of the existing legal literature bearing on
choice of law rules for marriage, nor is it a simple survey of the whole range of
arguments endorsing one approach over another with regard to this issue: it rather puts
forward a sustained argument towards a more appropriate way of looking at the conflict
of law problems in marriage. Though choice of law rules for marriage has long
preoccupied scholars and judges alike, the ever increasing antagonism between the
preponderance of conflict values [predictability, certainty] and the growing concern to
guarantee ajust result in individual atypical cases makes the continuous exploration of
this particular topic both necessary and of significant legal interest. The study seeks
essentially to establish that, contrary to what most scholars would have us believe, the
intractable conflict problems in marriage are not inherent in the inefficiency of the
traditional general choice of law rules, nor simply in the interrelation between different
social, religious and legal cultures.
Rather,they are attributable to the structure of a seemingly modem methodology that
focuses more and more on the the attainment of ajust substantive result, the astonishing
lack of consensus among legal systems, the disregard of coordination of policy
considerations relevant in marriage, the parochial and nationalistic focus in choice of
law, as well as in the application of the rule that lex fori is the only source of conflict
norms. Further, the inappropriate application of the general choice of law rules, and
the lasting antinomy between the international objectives [the attribution of an
international relationship to the relevant system] and the national sources of conflict of
laws are at the heart of the choice of law problems in marriage. The emerging academic
movement to modernise choice of law rules for marriage, with a view to guaranteeing desirable results in hard cases, defeats the very essence of conflict of laws, and renders
illusory what little certainty and predictability the normative criteria of the com1icts
orthodoxies may provide. The underlying reason lies in the inherent disregard of the
practical difficulties facing the officials who have, outside the courts, to apply the law
and to reconcile the competing goals of predictability and flexibility.The present writer's objective is the development of a more appropriate approach which
can establish an equilibrium between the much needed certainty in the present subject
and judicial appreciation of the difficulties presented in the individual atypical cases,
without scuttling the established conflicts orthodoxies, and at the same time to eliminate
the social evil termed "limping marriage". Finally, the domestic and intemationallaw
reform agencies should avoid the parochial and nationalistic focus in choice of law, and
the rule that lex fori is the only source of conflicts norms if they wish to make a claim
that their aim is the attainment of a universal uniform body of rules which will ensure
the universal validity of a marriage, and the maximum harmony of decisions.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Subjects: K Law > K Law (General)
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Crawford, Dr. Elizabeth B.
Date of Award: 1995
Depositing User: Ms Dawn Pike
Unique ID: glathesis:1995-5009
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 07 Mar 2014 14:12
Last Modified: 07 Mar 2014 14:12

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