Way v Way: FD 1951

Hodson, J. said: ‘Questions of consent are to be dealt with by reference to the personal law of the parties rather than by reference to the law of the place where the contract was made. This view is not covered by direct authority, but it is, I think, supported by the judgment of Lord Merriman, P. in Apt v Apt162 . . When giving the judgment of the Court of Appeal dismissing the petitioner’s appeal in [Apt’s] case, Cohen, L.J. said: ‘In our opinion the method of giving consent as distinct from the fact of consent is essentially a matter of lex loci celebrationis and does not raise the question of capacity.’ Marriage is essentially a voluntary union and as Dr Idelson put it (and I cannot improve on the phrase) ‘consent is an emanation of personality’. It is therefore, I think, justifiable and consistent with authority to apply the matrimonial law of each of the parties.’
When that case went to the Court of Appeal, under the name of Kenward v Kenward,163 Sir Raymond Evershed, M.R., at 133, assumed that what Hodson, J. had said about the relevant law to be applied was correct.
Both Nina and the respondent were domiciled in Poland at the time of the ceremony of marriage on 2 February 1968. It is therefore for Polish law to answer whether, on the facts as I have found them, the marriage was invalid by reason of duress.’

Hodson J
(1950) P 71
England and Wales
Cited by:
ApprovedSilver v Silver CA 1955
. .
CitedKenward v Kenward CA 1961
. .
CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .

Lists of cited by and citing cases may be incomplete.


Updated: 20 November 2021; Ref: scu.648169