Dual Domicile Test: Difference between revisions
| (One intermediate revision by the same user not shown) | |||
| Line 5: | Line 5: | ||
[12] I have concluded that the proper law to apply in determining the essential validity of this marriage, that is whether Aman’s consent was vitiated by fraud or misrepresentation, is the law of Ontario. The law of Ontario applies, under conflict of laws rules, because Aman, whose consent is at issue, was domiciled in Ontario at the time of the marriage. As such, I have applied the “dual domicile” test; that is, the validity of each party’s consent is to be assessed under the laws of their respective premarital domicile. The same result would follow if the law of the parties’ intended matrimonial home were applied. | [12] I have concluded that the proper law to apply in determining the essential validity of this marriage, that is whether Aman’s consent was vitiated by fraud or misrepresentation, is the law of Ontario. The law of Ontario applies, under conflict of laws rules, because Aman, whose consent is at issue, was domiciled in Ontario at the time of the marriage. As such, I have applied the “dual domicile” test; that is, the validity of each party’s consent is to be assessed under the laws of their respective premarital domicile. The same result would follow if the law of the parties’ intended matrimonial home were applied. | ||
==Azam v. Jan, 2013 ABQB 301 (CanLII){{Azam}}== | |||
[53] It is clear from the caselaw, that the preferred approach in Canada is the “dual domicile doctrine”: Grewal{{Grewal}} at para. 12; Feiner at pp. 126-127. Accordingly, I find that the dual domicile test is the appropriate test to apply in this case. Further, under Canadian conflict of law rules, “formal validity” in this case need not be considered because the issue of recognizing this foreign marriage as valid in Canada is appropriately resolved by the application of “essential validity”, including the question of Mr. Jan’s capacity. | |||
==References== | ==References== | ||
Latest revision as of 17:18, 2 May 2021
Grewal v. Kaur, 2011 ONSC 1812 (CanLII)[1]
[12] I have concluded that the proper law to apply in determining the essential validity of this marriage, that is whether Aman’s consent was vitiated by fraud or misrepresentation, is the law of Ontario. The law of Ontario applies, under conflict of laws rules, because Aman, whose consent is at issue, was domiciled in Ontario at the time of the marriage. As such, I have applied the “dual domicile” test; that is, the validity of each party’s consent is to be assessed under the laws of their respective premarital domicile. The same result would follow if the law of the parties’ intended matrimonial home were applied.
Azam v. Jan, 2013 ABQB 301 (CanLII)[2]
[53] It is clear from the caselaw, that the preferred approach in Canada is the “dual domicile doctrine”: Grewal[1] at para. 12; Feiner at pp. 126-127. Accordingly, I find that the dual domicile test is the appropriate test to apply in this case. Further, under Canadian conflict of law rules, “formal validity” in this case need not be considered because the issue of recognizing this foreign marriage as valid in Canada is appropriately resolved by the application of “essential validity”, including the question of Mr. Jan’s capacity.
References
- ↑ 1.0 1.1 Grewal v. Kaur, 2011 ONSC 1812 (CanLII), <https://canlii.ca/t/fks4x>, retrieved on 2021-05-02
- ↑ Azam v. Jan, 2013 ABQB 301 (CanLII), <https://canlii.ca/t/fxj8b>, retrieved on 2021-05-02
