ABSTRACT

Although the authorities are by no means conclusive, it can be stated with a reasonable degree of confidence that a person will have capacity to make a marriage contract if that party has capacity under the law of his domicile or by the law of the country with which the contract is most closely connected. This proposition emerges somewhat uncertainly from three cases decided at the turn of the century.241 The first of these was the first instance judgment in Re Cooke’s Trusts:242 a domiciled English girl, aged under 21, entered into a contract in France prior to her marriage to a French nobleman. Subsequently, the couple parted and the woman died domiciled in New South Wales, leaving her property to B by will. Her children sought to set aside the will on the grounds that they had vested property rights under the contract.