Incidental question
Encyclopedia
In the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit
. The forum court
will have already decided that it has jurisdiction
to hear the case (resolving any issue relating to forum shopping
) and will be working through the next two stages of the conflict process, namely: characterisation
and choice of law
. For example, the court may classify the cause as "succession", but it notes that the plaintiff
brings the claim for relief as the deceased's widow. Before the court can adjudicate on the main issue, it must first decide whether the plaintiff actually has the status claimed, i.e. the incidental question would be the validity of the claimed marriage
. The inconvenient reality is that many lawsuits involve a number of interdependent legal issues. In purely domestic cases, this poses no difficulty because a judge will freely move from one domestic law to another to resolve the dispute. But in a conflict case, the question is whether the incidental question is resolved by reference either to its own choice of law rules, or to the same law that governs the main issue (the lex causae
). States have not formulated a consistent answer to this question.
For an incidental question to arise, the forum court must have applied its characterisation rules to determine that:
Suppose that a French court hears the case of an American national
who dies domiciled
in California
leaving movables in England. The French choice of law rule would refer the distribution of personal property to California law which has community property
provisions entitling his widow to share in his estate. The marriage was in England and, as both the lex loci celebrationis
and the lex situs
, English Law
declares it valid even though it is void ab initio under California law because it is considered bigamous
(see nullity
): a divorce
decree granted by the Arcadian courts was recognised as valid in England, but not in California. Should the widow's claim be determined by the English or California law? There are different views:
One of the more interesting cases on this topic is the Canadian Supreme Court case of Schwebel v Ungar [1964] 48 DLR (2d) 644 in which a Jewish husband and wife, domiciled in Hungary
, married in Hungary. While they were emigrating to Israel
, they found themselves in Italy
and the husband divorced his wife by get
. Under the laws of Hungary (their lex domicilii
) and Italy, the religious form of divorce was invalid, but it was recognised as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife moved to Canada
and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband petitioned for nullity alleging that the marriage was bigamous. The Supreme Court held the marriage to be valid. The main question was the wife's capacity to marry which, under Canadian law, is determined by her lex domicilii, i.e. the law of Israel at the time of the second ceremony. The incidental question was the validity of the divorce which was to be determined either by their lex domicilii at the relevant time or by Italian law as the lex loci actus. The judgment seems to suggest that the court decided both questions by reference to the law of Israel as the law governing the main question.
In Lawrence v Lawrence [1985] Fam 106 the English Court of Appeal was asked by the second husband to rule on the validity of another potentially bigamous marriage. The wife first married in Brazil
and then divorced the husband in Nevada
(this was not recognised in Brazil) and immediately married the second husband in Nevada. The two laws were the wife's lex domicilii to which English choice of law rules referred her capacity to marry (under Brazilian law she lacked capacity to marry the second husband) and the validity of the second marriage which was determined under the lex loci celebrationis. The case was decided by characterising the case as one of divorce recognition rather than capacity to marry.
The outcome suggests that the same law will be applied to both the main and the incidental questions on the understanding that the forum court is probably making a policy
decision on which outcome is the more desirable in both cases, the courts seem to have been interested in upholding the validity of the second marriage reflecting a rebuttable presumption in both jurisdictions to recognise marriages valid under their lex loci celebrationis in default of any strong policy reason to the contrary.
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
. The forum court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
will have already decided that it has jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear the case (resolving any issue relating to forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
) and will be working through the next two stages of the conflict process, namely: characterisation
Characterisation (conflict)
In conflict of laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law...
and choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
. For example, the court may classify the cause as "succession", but it notes that the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
brings the claim for relief as the deceased's widow. Before the court can adjudicate on the main issue, it must first decide whether the plaintiff actually has the status claimed, i.e. the incidental question would be the validity of the claimed marriage
Marriage (conflict)
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
. The inconvenient reality is that many lawsuits involve a number of interdependent legal issues. In purely domestic cases, this poses no difficulty because a judge will freely move from one domestic law to another to resolve the dispute. But in a conflict case, the question is whether the incidental question is resolved by reference either to its own choice of law rules, or to the same law that governs the main issue (the lex causae
Lex causae
In the conflict of laws, lex causae is the law or laws chosen by the forum court from among the relevant legal systems to arrive at its judgement of an international or interjurisdictional case....
). States have not formulated a consistent answer to this question.
For an incidental question to arise, the forum court must have applied its characterisation rules to determine that:
- the main cause of action is governed by a foreign law;
- as a precondition to the main cause of action, there is a subsidiary question which has its own choice of law rule pointing to a different lex causae;
- there will be a different result depending on which foreign law is applied.
Suppose that a French court hears the case of an American national
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
who dies domiciled
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
leaving movables in England. The French choice of law rule would refer the distribution of personal property to California law which has community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
provisions entitling his widow to share in his estate. The marriage was in England and, as both the lex loci celebrationis
Lex loci celebrationis
The lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
and the lex situs
Lex situs
The term lex situs refers to the law of the place in which property is situated for the purposes of the conflict of laws. For example, property may subject to tax pursuant to the law of the place of the property or by virtue of the domicile of its owner...
, English Law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
declares it valid even though it is void ab initio under California law because it is considered bigamous
Bigamy
In cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
(see nullity
Nullity (conflict)
In conflict of laws, the issue of nullity in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null...
): a divorce
Divorce (conflict)
In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:...
decree granted by the Arcadian courts was recognised as valid in England, but not in California. Should the widow's claim be determined by the English or California law? There are different views:
- the widow's claim should be dismissed because otherwise the French conflict rule that succession to movables is governed by California law would be undermined;
- the widow should be entitled to share in her husband's estate because otherwise the French conflict rule that the validity of the marriage is governed by English law would be undermined.
One of the more interesting cases on this topic is the Canadian Supreme Court case of Schwebel v Ungar [1964] 48 DLR (2d) 644 in which a Jewish husband and wife, domiciled in Hungary
Hungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
, married in Hungary. While they were emigrating to Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, they found themselves in Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
and the husband divorced his wife by get
Get (conflict)
A get or gett is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din , a rabbinical court...
. Under the laws of Hungary (their lex domicilii
Lex domicilii
The lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied....
) and Italy, the religious form of divorce was invalid, but it was recognised as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife moved to Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband petitioned for nullity alleging that the marriage was bigamous. The Supreme Court held the marriage to be valid. The main question was the wife's capacity to marry which, under Canadian law, is determined by her lex domicilii, i.e. the law of Israel at the time of the second ceremony. The incidental question was the validity of the divorce which was to be determined either by their lex domicilii at the relevant time or by Italian law as the lex loci actus. The judgment seems to suggest that the court decided both questions by reference to the law of Israel as the law governing the main question.
In Lawrence v Lawrence [1985] Fam 106 the English Court of Appeal was asked by the second husband to rule on the validity of another potentially bigamous marriage. The wife first married in Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
and then divorced the husband in Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
(this was not recognised in Brazil) and immediately married the second husband in Nevada. The two laws were the wife's lex domicilii to which English choice of law rules referred her capacity to marry (under Brazilian law she lacked capacity to marry the second husband) and the validity of the second marriage which was determined under the lex loci celebrationis. The case was decided by characterising the case as one of divorce recognition rather than capacity to marry.
The outcome suggests that the same law will be applied to both the main and the incidental questions on the understanding that the forum court is probably making a policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
decision on which outcome is the more desirable in both cases, the courts seem to have been interested in upholding the validity of the second marriage reflecting a rebuttable presumption in both jurisdictions to recognise marriages valid under their lex loci celebrationis in default of any strong policy reason to the contrary.