Roles of Conflict of law in Cambodia–Family law

Roles of Conflict of law in Cambodian

Family law

Abstract:

Generally speaking, each country in the world which is well governed with good social orders is totally depending upon on set-out laws they are practicing in the moment. Even though there are merely two main kinds of laws, Common Law and Civil Law, the implementation of the two laws can be seen that the practicing of laws is different basing upon social demands and political ideology that the state wants to adhere to. With the differences of the legal implementation, International Laws play important roles in harmonizing and solving out any legal issue occurring between private citizens of different countries.

However, an incentive legal question is that in case a Cambodia national binds a legal marriage with a foreigner, which court shall have the jurisdictions upon their marriage? What law shall be applied and where can it is forced if there is a controversy take places in their marriage’s life?

Therefore, the perspective in this paper is to analyze crucial roles that Private Intentional Laws play in Cambodia, in which the so-called Cambodian Family Law, comprising of marriage, divorce, adoption and monogamy, shall be put into considerations.

Analysis of Cambodian Family Law

v     Marriage

In conflict of law, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethic, multi-cultural community existence. Most societies, of course, have rules which specify certain conditions which two people must meet before they will be allowed to marry. The rules are not exactly the same in each society. However, the purpose of the rules in each country is to permit marriages between certain people and prohibit marriages between others. Marriage is the legal institution which expresses the independence of men and women, and it is also a social and economic partnership which, ideally, allows a man and a woman to flourish together. Similarly, marriage is also a partnership for raising and nurturing of children.

v     The validity of marriage

Actually, under the Cambodian Family law, there are two main compulsory requirements for a marriage to be valid—substantial requirement of marriage and formality requirement of marriage. In term of Substantial requirement of marriage, there are seven compulsory requirements which are essential for validity of marriage of both parties. First, the parties must be a man and a woman, which is meant the two parties cannot be of the same sex. As can be seen in the reality of Cambodian life, same sex marriage is kind of absolutely against the culture, tradition and custom of Cambodia; and the law also does not recognize same sex relationships as legally valid even if the parties plan to live together as a family unit for many years. Second, the decision to marry must be voluntary on the part of both parities. In Cambodia forced marriage is absolutely prohibited, so no one shall be forced to marry against his/her will—the decision of both the man and woman must be voluntary (2).Third, man and woman must both be of sufficient age under law to marry, which can be seen in the new civil cold of Cambodia that both man and woman must be at least reach the age of 18, while a marriage involving underage partners is absolutely prohibited (3). Fourth, the parties must be free of a certain specific mental and physical disabilities (4). Fifth, the parties must not be related by blood or marriage to a degree prohibit by law. Cambodian marriage law prohibits marriage between all people who are related by either blood or marriage in a direct line (5). Sixth, each party must be unmarried at the same time of the proposed marriage (6). Seventh, women may not remarry within 120 days of the termination of a prior marriage (7).  (Cambodian family law)

Formality requirement of marriage

Law, itself, states that formality of marriage shall consist of some required elements such as public notice, conclusion of marriage contract in the present of the family registration official, and marriage registration as well as a celebration of marriage ceremony which is legally known as a civil marriage ceremony (Cambodian civil code, marriage)

In Cambodian society, generally people have yet to fulfill the requirement of civil marriage ceremony as they are likely to get confused about the term of civil marriage. Actually, the so-called civil marriage ceremony is not a kind of marriage party that they simply conduct by merely inviting friends and relatives, but it is meant by a ceremony in front of the civil register with authorities.

There are no particular requirements as to conduct of the ceremony. However, the couple must express the registrar that their marriage is voluntary. In the eyes of law, a religious ceremony is not necessary to the formations of the marriage, but this does not meant that such ceremonies are unimportant; it only means that they have no legal significance.  It is simply seen that the man and woman might believe that they are validly married because they have had a traditional wedding, but in legal concept the law will not recognize such a marriage as valid. Different countries handle this situation in different ways. In many countries, the failure to celebrate a civil marriage ceremony is a very serious procedural violation which affects the validity of marriage. Therefore, if a man and a woman who wish to marry, they shall meet all the requirements of the law set forth above, and then they are entitle legal marriage.

With some of the above-mentioned points about the validity of marriage, it can be noticed that a complex of legal issues whether or not a marriage valid is depending upon the exercise of domestic law of each country. As can be seen, in Cambodia both the man and the woman shall be at least 18 years old if they wish to marry. However, in some countries, such a requirement is different. For example, in the US women shall be allowed to get marred at the age of 16. So, let’s suppose that if a 20-year-old Cambodian man marries to an American girl who is just 16 years of age, would the marriage be valid? The complex of laws whether or not the marriage is valid concerning with the age of the spouse is different depending on the domestic law itself. In some countries, no girls under the age of 16 shall be allowed to get married unless she reaches the age of majority, but in some countries which their own laws state differently, will recognize that marriage as valid, because the law itself allows to do so.

v     Prohibition of marriage under the monogamy law

Looking back through the past, the custom that a man had the first wife, the second, the third, or the fourth wife, or even if a concubine could be seen happening in most of the societies. Still, in some countries in the world laws do not ban individuals to have more than one wife or one husband. As can be commonly seen, in Muslim countries, a man has rights to having more than a wife even if the marriage he bound with his first wife had yet to be dissolved. However, under the Cambodian law on Monogamy, it is stated that one man, legally, has only one wife and a woman has only one husband (Act 3); and that any person who commits the offence of bigamy if they register his/her new marriage to another person while his or her prior marriage has not been dissolved shall be liable for conviction and punishment (law on monogamy, Act 4). Additionally, the civil code itself also clearly states that a person who has a spouse may not affect an additional marriage (Civil code, marriage, requirement for marriage, act 949).

Regarding to this point, suppose that a Muslim man married to a Cambodian woman in his country and then came back to Cambodia, would the Cambodian courts have jurisdictions over their marriage? The legal interpretation of this issue is based on where the marriage celebrated. Even though the woman is Cambodian national, she got married in another country, so the court of that country shall have jurisdiction on their marriage. whereas, if interpreted basing the Private International Laws, in case the spouses have domiciles and deliberate residence in Cambodia, the law of Cambodia shall govern their marriage life after that.

v     Jurisdiction of the courts on marriage

Sometimes legal issues shall be interpreted basing the grounds of domestic and international law. In Cambodia, the courts shall recognize and have jurisdictions only upon any marriage which is leally bound in legal concepts as mentioned above. That a marriage made by both parties of the same nationality—Cambodian nationals, the jurisdiction of the courts of Cambodia shall be applied. Whereas, in case one of the spouses is a foreigner, or suppose that a Cambodian national may have been celebrated the marriage in a foreign country, what law shall govern? This is an incentive point which should be considered.

First, however, let’s take a look at the two different points concerning with the jurisdictions of the courts in the world. For countries which are using Civil Laws, the courts may have jurisdictions basing nationalities of persons, while those which are exercising Common Laws, the validity of the marriage is governed by the capacity of the parties to marry each other. That capacity is usually governed by the domicile of the parties.

It can be known that since Cambodia has been influenced by France, it has adhered to the civil code in form of the law of its nation. Therefore, the courts in Cambodia, basically, have jurisdictions on legal issue basing on the nationality of the concerned persons.

In this regard, under the Cambodian law, the marriage of a lawful-aged American man and an 16-year-old Cambodian girl shall be regarded as invalid basing on the nationality of the girl—a Cambodian national.  Whereas, in this aspect the Private international Law itself, regardless to the girl’s nationality, can interpret that the American courts shall have jurisdictions over the case if the girl’s domicile of choice is the US.

v     Divorce

Divorce which is the termination of marriage can possibly happen in every aspect of life of spouses once there is any difference or confrontation between husband and wife. Particularly, the consequence of divorce simply seen is the property division which is one of the most difficult aspects of it, because usually the spouses disagree over who has the right to the property.

In the legal grounds, it can be seen that divorce is defined as a judgment by a court declaring that a valid marriage has been dissolved and the parties are no longer married, and a judgment shall be a decision by a court which is made after the consideration of the evidence relevant to the issues to be decided. The Cambodian Family Law gives the judge the final authority to decide whether to grant the divorce, and will issue a formal notice to the plaintiff to appear before the court.

v     Where a divorce can be enforced

In order to decide whether a divorce is valid, it may be necessary to decide in which country it was obtained. Practically, the divorce case where more than one country or jurisdiction is involved, usually due to residence and citizenship of the spouses, there can be disputes over which country that the husband and the wife can sit down and handle the divorce or which country they want to get divorced in. Suppose that when a Cambodian national married to an English man, in which the marriage was celebrated in Cambodia. The court of Cambodia shall have jurisdictions over the case in accordance with the place where the spouses celebrated their marriage. However, the place where the marriage was held is not importantly considered in Private international Law. In this regard, a country which has possible jurisdiction over their divorce shall be a country that the spouses have connections with such as residence and domicile.

v     Property division

The problems of divorce-related property arise in most often in marriage, in which during a marriage one or both parities may own property which provides income. The division of property described here sounds simple and easy, but in practice it is not. Questions may arise about who owns and controls the income earned from property during the marriage. To answer this question we must first classify the property as common (or joint) property or separate property. In accordance with the Civil Code of Cambodia, common property means any and all property acquired during the marriage by one or both spouses (Civil code, act 973). Common property may include money which either spouse earned, or anything either spouse bought with money earned during the marriage. However, separate property is meant by any property which a spouse possesses prior to the marriage, and any property which a spouse receives as a gift, and inheritance, or a legacy during the marriage (civil code, act 972).

In this aspect, imagine that in case the divorce between a Cambodian national and a foreigner occur where their existing marriage is valid, the court shall have the jurisdictions on dividing the property for them in accordance with the laws. And of which court shall have jurisdictions over the case depends upon the judgments of where the marriage is subject to. The Cambodian courts will consider where the existence of the marriage is. If it was celebrated in Cambodia, the laws of Cambodia shall govern the case. However, in order the court has jurisdictions over the case, the judges of the foreign country will determine on the residence of the spouse, the territorial jurisdictions of the court, and spouse’s domicile in their territorial jurisdiction of the court, or the consent of the spouses to the jurisdiction of the court.


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