INTERNATIONAL MARRIAGE

What is the meaning of marriage?

In Private International Law, there is no general rule to define the marriage. Each legal system must determine the attributs of marriage. According to the british system, the marriage is a contract. "A contract of marry" that differs fundamentally from comercial contract, since it creates a status that affects both their parties themselves and the society to which they belong. In Spain, there is no general definition, but of two doctrinal definition: as a contract "sui generis" or an institution of civil law different to contract. 

Respect of "an agreement to marry" does not have effect as contract.

Definition of 1866 "Lord Penzance":

 

"As the voluntary union for life of one man and one woman to the exclusión of all others"

Traditional meaning of marriage affects both the parties, man and woman as a necessary to create the relationship of husband and wife. However, in States like Spain or Holland,  the consensual union can be between same sex persons. The Spanish Constitution does not have a definition of marriage, ART 32 says that "Man and Woman have the right to marry with full legal equality" No necessary to create the relationship of husband and wife. Since 2005 same sex persons has legal equality to marriage.
The Japanise Constitution of 1946 established a historical relantionship of husband and wife, then marriage solely is applied to the unión between man and woman:

 

第二十四条　婚姻は、両性の合意のみに基いて成立し、夫婦が同等の権利を有することを基本として、相互の協力により、維持されなければならない。

 

Article 24.　Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.

In 2013, same-sex mariage is avaliable in: Argentina, Belgium, Brazil, Canada, Denmark, Iceland, Israel, Mexico, Netherlands, Norway, Portugal, South Africa, Spain, Sweden and nine States of USA (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington).

 

There is no general rule for formalities of mariage in Private International Law. The formalities depend solely on the law of the country where the ceremony takes place, but there is two exceptions: "consular marriage" (it's applied national law) and marriage of members of national services saving abroad. It valids as if it had been solemised in the State.

 

What kind of forms are valided in Spain?

 

Forms requeried by spanish law, civil form ART 49.1 Civil Code (CC) or religious form ART. 49.2 CC (Christian, Jeweish, Islamic and Protestant). Both of them are valided.