ABSTRACT
A true conflict occurs where a choice has to be made between the different laws of two or more legal systems which are potentially applicable to the case in hand and which would produce different overall results. If all the connected legal systems have the same rule on the matter in question, then, although the conflict exercise may still be gone through, nothing will turn on it. But, the choice of law rules which any country adopts may have the effect of creating a problem which has no real existence in the laws of any country. Suppose the question before the English court is the validity of a marriage which took place abroad of a couple who immediately thereafter made their matrimonial home in England. Suppose that the issue is not raised as a matrimonial cause (the couple are perfectly happy in their marriage) but arises in a succession case, where money has been paid over on the assumption which is now being contested, that the marriage is valid. The conflict rules of English law could point to one of the parties’ premarital domicilary laws to discover that the couple were related to each other in a manner which, by that law, but not by English law, prevented marriage between them. If the English court stops, as it characteristically does, at the domestic law of the chosen system, it must hold the marriage to be void. Had it gone on to examine the conflict rules of the chosen system, it might have discovered that the prohibition would not actually have been applicable on the facts of this case, as the conflict rules of the chosen system would have referred say, to the law of the matrimonial home – English law – where the marriage is valid. The story cannot logically be left at the point I have abandoned it and there may be no satisfactory way out of this particular dilemma. The point is that the rules a system has for resolving conflicts may actually create them.
