ABSTRACT
Even if agreement can be reached as to the choice of law rule to govern questions of essential validity, it is clear that there is a significant exception to that rule. This is because of the judgment in Sottomayor v De Barros (No 2) which holds that the essential validity of a marriage celebrated in England where one party is an English domiciliary is to be governed by English law.140 It is sensible to outline the facts of this unusual litigation: the petitioner and the respondent were first cousins born in Portugal. They came to England in 1858. In 1866, when the petitioner was 14 and the respondent 16, they went through a ceremony of marriage at a registry office in London. From 1866 until 1872, they lived under the same roof but the marriage was not consummated. In 1873, the petitioner returned to Portugal and, in 1874, the respondent returned. The petitioner then filed a claim for a decree of nullity, claiming the parties lacked capacity under Portuguese law. The Queen’s Proctor argued that the marriage was to be governed by English law. The first hearing before Phillimore J proceeded on the unwise basis of seeking to determine the legal question before a full finding of facts had been made.
