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Vanderbilt Law Review

First Page

607

Abstract

It must first be recognized that three different types of problems are raised in this field by what purport to be marriages: problems concerning the creation of the relationship of man and wife; those concerning the method whereby the parties signify their consents to the assumption of the relationship; and those concerning the legal protection accorded to claims arising therefrom. These involve, respectively, the status, the ceremony, and the incidents' of marriage.

It has often been said or assumed in the past that the laws of the domicile or domiciles of the parties at the time of the ceremony govern the creation of the status, except that it will not be created if the laws of the state where the ceremony takes place--lex loci celebrationis--refuse to create it; that the lex loci celebration is governs the ceremony; and that the laws of the state in which the enjoyment of an incident is claimed determine whether the claim to it is legally protected.

There are three possible approaches to the concrete problems: (1) It would be possible to treat all cases as involving claims to incidents.(2) It would be possible to determine in vacuo that the status does or does not exist and to decide that, if it does, all incidents inevitably flow from it; and that, if not, there is nothing from which incidents can flow. (3) It would be possible to decide that the status exists, and to make an independent decision that a claimed incident is or is not protected. There is no evidence that any court uses the first approach and it is often difficult to determine which of the others is being used in a case.

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