1

CONFLICT
OF LAWS May 5
II 2020
LPI 402
ASSIGNMENT TITLE: MARRIAGES AND CONFLICT OF
LAWS.

QUESTION:

1. EXPLAIN THE TERM ‘LIMPING MARRIAGE’.

LECTURER-IN-
IDENTIFY THE WAYS AT COMMON LAW BY
CHARGE:
WHICH THE INCIDENCE OF LIMPING
SESAN FABAMISE
MARRIAGE HAVE BEEN REDUCED.
ESQ.
2. EXPLAIN SUCCINTLY: MUTATION OR
CONVERSION OF MARRIAGE IN CONFLICT OF
LAWS.
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ANSWER

QUESTION 1:

LIMPING MARRIAGES

Limping marriages refers to the marital status of people considered as married under the
law of one state or country while under the law of another state such marriage is unrecognized,
considered inexistent and not binding. It may also be referred to as a situation where the Nigerian
court does not recognise the decree of annulment or dissolution, whereas it is recognised in the
foreign country where it was granted. This phenomenon has been described as “the scandal
which arises when a man and a woman are held to be man and wife in one country and strangers
in another.”1 In Padolechia v Padolechia2, the husband was domiciled in and married in
Italy in 1943 but subsequently obtained a divorce in Mexico and contracted another marriage in
England. In a petition to annul the marriage on the ground that the first marriage was valid and
subsisting, the court up held the submission.
In situations where it will be unjust and inappropriate for the decree to be binding extra
territorially, a limping marriage will be created. In Kendall v Kendall3, the husband’s lawyers
deceived the wife into applying for a divorce which she was not desirous of obtaining. The
processes were filed in a language she did not understand. The recognition was withheld in
England on grounds of public policy.

WAYS AT COMMON LAW BY WHICH THE INCIDENCE OF LIMPING MARRIAES

HAVE BEEN REDUCED.
In order to avoid this problem (of limping marriages), the House of Lords in the case of
Indyka v Indyka,4 came up with the test of ‘real and substantial connection’. In this case, it
was stated that an English court should recognise a divorce decree granted in a foreign country
where there was a real and substantial connection between the petitioner for the divorce and the
country exercising the jurisdiction. As such, for a foreign decree to be recognised, the parties are

1
Per Lord Penzance in Wilson v Wilson (1872) L.R. P & D 435 at 442.
2
(1968) P.314.
3
(1977) Fam 208
4
(1969) 1 A.C. 53
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only required to show a ‘real and substantial connection’ with the foreign country in question
and the strict rules on domicile would be relaxed.

QUESTION 2:
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MUTATION OR CONVERSION OF MARRIAGES IN CONFLICT OF

LAWS
Polygamy is considered primarily a legal concept, giving rise to a particular legal status,
but in fact polygamy symbolizes a particular cultural and religious heritage. 5 African native law
and custom espouse polygamy, both as a religious fact and as a cultural facet of African tribal
life.6 Equally well rooted in Western culture and religion is the institution of monogamy
represented by common law tradition.7 The accommodation of polygamy and its manifold
consequences present a fundamental difficulty for the common law system. It is therefore
proposed to examine the present position of polygamy in the common law world in order to
determine what changes were necessary to accommodate this institution.
In 1962, the British Columbia Supreme Court in Sara v Sara8 felt compelled to depart
from their reasoning in the case of Lim v Lim9 because “there [were] signs of a more modern and
enlightened view being accepted such as it contained in Dicey”.10 In that case, the wife,
domiciled in British Columbia, married the husband in India in accordance with a Hindu
ceremony of marriage which allowed polygamy. After the marriage both parties came to British
Columbia where the husband acquired a domicile. The husband sought a declaration that he was
not a married person within the meaning of the law of British Columbia, on the ground that his
marriage was polygamous. The wife sought a declaration of the validity of the marriage. Lord, J.
dismissed the application of the husband and made the declaration sought by the wife. His
Lordship based his decision on two factors: (a) acquisition by the husband of a domicile of
choice in British Columbia; (b) the fact that subsequent to the marriage polygamy between
Hindus in India was abolished by the Hindu Marriage Act, 1955.
In succession and legitimacy, “marriage” has been defined so as to include polygamy,
while matrimonial matters, including matrimonial relief, have traditionally followed the Hyde v
Hyde11 rule. Ever since the decision in the Hyde case (now more than a century old) English and

5
Mayne, Treatise on Hindu Law and Usages, 11th ed. (1953), 172 - 73
6
Farran, Matrimonial Laws of the Sudan (1963), chs.1 and 3
7
Warrender v Warrender (1835) 2 Cl & Fin. 532, 6 E.R. 1239 (H.L.) per Lord Brougham; but see Stone, Sowa v
Sowa: Maintenance of Family Dependants (1961) 24 Mod.L.Rev. 500, 501, for a contrary view
8
(1962) 31 D.L.R. (2d) 566 (B.C.S.C.); aff’d on different grounds (1962) 36 D.L.R. (2d) 499 (B.C.C.A.)
9
(1948) 2 D.L.R. 353 (B.C.S.C.)
10
Lord J. quotes extensively from Dicey, the passage which lays down the germs of the doctrine of conversion.
Sara v Sara is perhaps one of the earliest decisions to grasp that principle
11
(1866) L.R. 1 P. & D. 130
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Australian Courts have declined to grant matrimonial relief in respect of a polygamous marriage.
When is a marriage polygamous? Until recently it was generally thought that the nature or
character of a marriage is immutably determined by the law of the place of celebration. In recent
years, it has been conceded that the character of a marriage may be changed from polygamous to
monogamous. In cases where such a mutation was recognised as in Cheni v Cheni,12 the change
was in accordance with the law of the place of celebration itself. In that case the spouses were
married according to Jewish rites in Egypt where they were domiciled. By Egyptian law the
religious law of the parties determined the validity of the marriage; by Jewish law if there was
failure of offspring of the union within a certain period the husband could take another wife
without formally divorcing the first. On the other hand, the birth of a child within that period
made the marriage monogamous for all purposes. A child was in fact born to the parties who
later came to England where they were domiciled at the date of proceedings by the wife for a
decree of nullity on the ground of consanguinity. The husband argued that the English Court had
no jurisdiction to grant the decree because the marriage was potentially polygamous. The Court
(Sir Jocelyn Simon, P.) held that the birth of the child rendered the marriage monogamous and
that the proper time to consider the character of the marriage was the date of proceedings. The
learned judge cited two instances in which a potentially polygamous union may assume the
characteristics of a monogamous marriage:
“Two spouses may contract a valid polygamous union and subsequently join a monogamous
sect, or go through a second ceremony in a place where monogamy is the law. Again, a
marriage in its inception potentially polygamous though in fact monogamous may be rendered
monogamous for all time by legislative action proscribing polygamy.”

Courts have consistently held that parties to a polygamous or a potentially polygamous

union cannot seek matrimonial relief from the common law. As recently as 1961, the English
Court of Appeal in Sowa v Sowa13 observed that “if the ceremony is polygamous then it does not
come within the word ‘marriage’ for the purposes of the Acts relating to matrimonial matters,
nor do the parties to it come within the words ‘wife’, ‘married woman’ or ‘husband’. In many

12
(1965) P.85; (1962) 3 All E.R. 873
13
(1961) P.70 (C.A.)
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decisions following Hyde v Hyde,14 the courts have often expressed regret that an innocent but
victimized party had to be denied relief only because the character of the marriage in question
was polygamous. However, commencing with an opinion tendered by Lord Maugham to the
Committee of Privileges in the Sinha Peerage case,15 decisions developed around the principle
that notwithstanding the fact that a marriage may be potentially polygamous at its inception, it
could subsequently become converted or mutated into a monogamous marriage for the purpose
of attracting the matrimonial relief available under the English common law.
Cumming-Bruce, J., from the case of Ali v Ali,16 went on to consider the important
question of whether the acquisition of an English domicile had the effect of impressing a
monogamous character on the potentially polygamous marriage. His Lordship relied on the
dictum of Sir Jocelyn Simon, P. in Cheni v. Cheni17 to the effect that change of domicile may be
effective to alter the nature of a union. "The chief difficulty" felt by the learned judge was to
determine whether change of domicile did more than merely "frustrate one of the features of the
potentially polygamous union". Regardless, Ali v. Ali raised a number of questions – First of all,
whether a law other than the law of the place of celebration can alter the character of the
marriage. In this case, the law of a subsequently acquired domicile was held to be relevant in
deciding the nature of a marriage at the time of divorce proceedings and in displacing the effect
of the lex loci celebrationis rule. In Parkasho v. Singh18, a change in the loci celebrationis which
could not have been in the contemplation of the parties at the time of the marriage, was held to
affect the nature of that marriage; Secondly, is an intention on the part of the husband alone
sufficient to alter the character of a union by change of domicile? Or must the change be the
result of some bilateral decision before a change will be recognised as effected? It is implicit in
his Lordship's reasoning in Ali v. Ali19 that intention on the part of the husband alone to acquire a
domicile may be sufficient to alter the nature of the union.
Conclusively, Dicey and Morris succinctly summarize the present law as follows:
“The proposition laid down in Ali v. Ali that a potentially polygamous marriage may
become monogamous if the parties acquire an English domicile is a far-reaching one… The
14
See Pearce L.J. and Harman L.J. in Sowa v Sowa, supra; in Lim v Lim, supra
15
Reported as an appendix to Baindail v Baindail (1946) 1 All E.R. 342, 348. The Official Law Reports of this case in
the Queen’s Bench series do not carry a report of the Sinha Peerage decision.
16
(1966) 1 All E.R. 664
17
Supra
18
(1967) 2 W.L.R. 946
19
Supra
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proposition may not be very logical and is difficult to reconcile with prior authority,
notably with Hyde v. Hyde itself. But it is to be welcomed on practical grounds because it
narrowed the scope of that decision.
In all these cases of conversion, the marriage was only potentially polygamous; but there
seems no reason why their principle should not be equally effective to convert an actually
polygamous marriage into a monogamous one, after the number of wives has been reduced
to one by death or otherwise.
There is no English authority on the converse problem, namely, can a monogamous
marriage be converted into a polygamous one... The answer may be that the marriage has,
so to speak, the benefit of the doubt: if it is monogamous at its inception, it remains
monogamous although a change of religion or of domicile may entitle the husband to take
another wife; if it is polygamous at its inception, it may become monogamous by reason of
a change of religion, of domicile, or of law before the happening of the events which give
rise to the proceedings...20”

As Dicey has said, matrimonial relief in these cases of conversion is restricted to

instances where the marriage has remained merely potentially polygamous and has not actually
become polygamous. In the latter instance, Dicey believed that the parties might be required to
delay their petitions to court until the number of polygamous wives was reduced to one, by death
or extra-judicial divorce of the others. In that sense, there is a practical limitation placed upon the
application of this principle. In any event, this appears to be the only effective inroad which the
common law courts have made on the rigorous rule in Hyde v. Hyde21.

20
Conflict of Laws 9th ed. (1973), 283
21
Supra
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REFERENCES
 Class note on matrimonial causes – limping marriages.
 https://www.nou.edu.ng/sites/default/files/2018-10/JIL%2520514_docx.pdf accessed on
the 4th day of May, 2020.
 https://lawjournal.mcgill.ca>...PDF accessed on the 4th day of May, 2020.
 https://www.austlii.edu.au>5...PDF accessed on the 4th day of May, 2020.