1.0 INTRODUCTION.
The scenario emanated from Private international law transactions basically
the conflict of laws on determining what law could be applicable to verify
validity of marriage between parties as per English Private international law,
proper choice of law to guiding administration of properties movable and
immovable of the parties in reference as to Guiding legal system to be used
as well as, the right of the parties to be ascertained. According to Conflict of
laws in order to determine the validity of marriage between parties in the
case involve foreign elements the court has to recorse to the principle called
Lex loci celebrationis to mean where parties celebrated their marriage. But
administering of property by will or inheritance of either movable or
immovable shall be according to lex loci situs as to where the property is
situated1. Therefore, the marriage between Keegan and John is valid due to
the following things;
2.0 MAIN BODY
2.1 Nature of marriage
The nature of marriage between parties was homosexual marriage that was
between Keegan who was Ghanaian National and John who was Kenyan
national. Those parties met in Algeria and after one year engaged in
marriage that was celebrated in Mauritius; But the general rule under
principle of Lex loci celebrationis will guiding forum court to recorse in where
parties celebrated their marriage (Mauritius). However, lex loci celebrationis
will be inapplicable to the scenario at hand due to distinctive nature of
marriage between disputants in term of: -
a) Exemptions of lex loci celebrationis under the case of KENT vs
BURGEES
b) Both parties they under umbrella of immunity of United Nation
1
THE TAMIL NADU,. (1999). PRIVATE INTERNATIONAL LAW; Dr. AMBEDKAR LAW UNIVERSITY
CHENNAI(PRIVATE INTERNATIONAL LAW STUDY MATERIAL
2.2 Exemptions of lex loci celebrationis under the case of KENT vs
BURGEES2
This case provided the position to protect some marriages of either physical
incapability (Homosexuality marriage) to recourse in Domicile of the parties
and determine the validity of marriage to the case at hand. In fact, John and
Keegan was valid because the domicile of both parties was Swetzland which
allow Same-sex marriage3. Hence, even if the Mauritius (Where parties
celebrated their marriage) denied to recognize such marriage but the forum
court shall recognize that marriage as valid marriage due to the domicile
country of Geneva Switzland allowed such kind of marriage.
Also, the case of MAHTA Vs MAHTA of 1935 provided that the marriage
retains its nature until there has been any prerequisites. But also, the nature
of marriage doesn't change automatically basing on life style, 4 this is
explained in the case of SOWA Vs SOWA5where by a marriage was
celebrated in Ghana between parties domiciled there. The marriage was
potentially polygamous as the law of Ghana allows plurality of wives. The
husband promised to go through another ceremony later which according to
the law of Ghana will convert the marriage into a monogamous marriage. He
failed to carry out his promise. It was held that in spite of the promise and in
spite of the fact that the husband has not taken an additional wife, the
marriage should.6
2
1886(C113/3) NATIONAL ARCHIES KNEW
3
www.euronews.com accessed at 10:31
4
MAHTA Vs MAHTA
5
(1961) I AII.E. R687}
6
SOWA Vs SOWA (1961) I AII.E. R687}
In the case of HYDE Vs HYDE7 define marriage as the voluntary union for
life of one man and woman to the exclusion of all others, this was the
concept of Christian marriage. The brief of the case is that, the petitioner
was an Englishman who embraced the Mormon faith (christ centered faith in
western New York) he went Utah in the United states and married a Mormon
lady according to Mormon faith. After cohabiting with her for three years and
having children by her, he renounced Mormon faith, came to England and
became the minister of dissenting chapel.
A sentence of excommunication from Mormon faith pronounced against him
in Utah and his wife married another man. He petitioned before an England
Court for divorce on the Ground of Adultery of his wife.
According to Mormon faith polygamy was allowed. Court held that the
Mormon Marriage was potential polygamous, and this country is adopted to
Christian Marriages and is wholly inapplicable to polygamy. The parties to a
polygamy marriage are not entitled to the remedies, or adjudication or relief
of English law.8
The case of BROOK Vs BROOK of 1841 clarified as it was stated that a
marriage was celebrated in Denmark between a domiciled Englishman and
his deceased wife’s sister also of English domicile. Marriage between a man
and his deceased wife’s sister was legal by Danish law, but was illegal by
English law at that time. The house of lords in this case held the distinction
between formalities of marriage and capacity to marry. While the former is
governed by lex loci celebrationis, the latter is governed by each party’s
ante nuptial domicile.9
2.3 The law governing property matters in Private international law
is LEX SITUS for immovable property and Domicile of the parties for
movable property.
7
(1886.L.R.I.133)
8
HYDE VS HYDE (1886.L.R.I.133)
9
BROOK Vs BROOK
Roman-Dutch law regulate succession law which developed by Netherlands
and become part of South African legal system. On the given scenario, the
legal system governs the proprietary consequences of the marriage between
Keegan and John is the law of Portugal whereby Jackie John's sister termed as
sole intestate heir as Immovable property so the LEX CITUS is applied but
due to the law of South Africa termed Omar is John's sole intestate heir as
movable property so the domicile of the parties is applied.
Also, on that scenario John drafted his first will in which he instituted Keegan
as his sole heir, whereby later on he prompted to draft his second will on
board the ship. John's second will expressly revoked his first will and
instituted Franco(his Ex) as his sole heir. Therefore, the decision was decided
on depending on the nature of the will of the deceased were Franco as his
sole heir. The validity of will be drafted by John could be invalid due to
Roman-Dutch law and as per Lex situs needs the immoveable property to
administers according to where property is situated.
2.4 CONCLUSION.
Generally; on the issue of same sex marriage (homosexual) it is obvious
prohibited in some African countries and other party of the World such as
Arab Union(U.A.E) and so on, BIBLE, Romans chapter 1: 26-27 stated
that “For this cause God gave them up unto vile affection; for even their
women did change the natural use into that which is against nature and
likewise also the men, living the natural use of the woman, burned in their
lust one toward another; men with men working that which is an seemly, and
receiving in themselves that recompence of their error which was meet”. 10
As God punish Sodoma and Gomola due to their practice on the same sex
marriage. Even also QUR-AN in Suratul AL-ARAAF 7:80-81 stated that
“Verily, you practice your lusts on men instead of women. Nay, but you are a
people transgressing beyond bounds (by committing great sins)”. 11 Apart
10
HOLY BIBLE
11
HOLY Qur-an
from that we are supposed to fight against this action because it has
negative impacts to the societal at all, even our governments must played a
vital role on supporting this issue by establishing various laws which
eradicate the issue of the same-sex marriage to not practiced at all through
punishments, for instance in Tanzania we have THE PENAL CODE12 under
section 154 which provided on the issue of Unnatural offence with its
punishment.13
REFERENCE
BOOKS
BIBLE
QUR-AN
STATUTES
THE LAW OF MARRIAGE ACT [Cap 29 RE 2019]
THE PENAL CODE [CAP16 RE 2022]
CASE LAWS
HYDE Vs HYDE(1886.L.R.I.133)
ALI Vs ALI (1966) I AII. E. R.66}
MAHTA Vs MAHTA {1935}
SOWA Vs SOWA (1961) I AII.E. R687}
BROOK Vs BROOKS {1841}
KENT Vs BURGEES{1840}
12
[Cap 16 R: E 2022]
13
The penal code [Cap 16 R: E 2022]
