The German rules on the conflict of laws relating to the conclusion of a marriage are very different from, and much more complicated than, the corresponding rules of English law. It is necessary to distinguish between the rules relating to substance, such as the requirement of a valid intention to enter into the marriage, absence of certain degrees of kinship, etc., and the rules relating to form.
As regards substance the rule is that the law of the nationality of both spouses applies, article 13 (1), EGBGB. If the spouses are of different nationality, the requirements of each law must be complied with in regard to the spouse to whom the law in question is intended to be applied.
EXAMPLE: According to section 1 of the Marriage Law a male German must not marry before the age of 21. According to Swiss law a man may marry at the age of 20 and a woman at the age of 18. A German, aged 20, marries a Swiss girl, aged 18, in Switzerland, where both parties are domiciled. The marriage is void according to German law, because the German partner is according to the law of his nationality not of full age, and this law is intended to be applied to all Germans.
The rule not infrequently results in difficult questions, having regard to the fact that many prohibitions, both of German and of foreign law, are in fact aimed at both parties.
EXAMPLE: According to Swedish law an epileptic may not marry. A German epileptic marries a Swedish girl. This marriage is void because the intention of the Swedish legislator was not merely to prevent a Swedish epileptic from marrying, but also a Swedish national from marrying an epileptic, see M. Wolff, p. 161.
In practice difficulties are less frequent than they might be because of the rule of section 10 of Control Council Law No. 16 according to which foreigners must not marry without producing a certificate of 'nubility' from the domestic authorities of their country. They are further reduced in relation to countries applying the domicile-principle such as English law by the acceptance by Germany of the renvoi contained in those laws, though here too attention has to be given to the possibility that an impediment provided by one law only may affect both spouses.
EXAMPLE: The marriage between Mr. A and Mrs. A, citizens of the U.K., which had been concluded in London, has been dissolved by an English Court on the ground of adultery committed by Mr. A with Frdulein B, a German national in Germany. A wants to marry B. No matter where the second marriage is celebrated, according to German law it cannot be validly celebrated without dispensation from the requirement of section 6 of the Marriage Law, according to which adulterer and adulteress cannot marry...
SECTION XIII - Law Of Husband And Wife
|Author:||E. J. Cohn|
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