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A habitual residence test would enable a person to evade the rules as to capacity imposed by the domestic law of his or her domicile, the law of the country with which, in the normal case, he has more permanent ties and which has a greater concern with his status than the country where he may be habitually resident for a short period.
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We are not convinced by the argument that parties should be entitled to refer to a particular law the internal law which the lex loci celebrationis expressly excludes from application by prescribing choice of law rules and we recommend that the legislation should contain no such rule. It remains true, of course, that the internal law may be easier for the parties to establish, but that practical dating not a sufficient reason, in our view, to justify reference to the internal law as an alternative to the law prescribed by the choice of law rules.
We have come to the conclusion that, in cases where the dissolution of a marriage would not be recognised here and that marriage continues to be a subsisting valid marriage under our law, a subsequent marriage should not be recognised under our law whether or not it complies with the law as to capacity to remarry of the parties habitual residence.
We must now consider whether habitual residence would afford an appropriate test for determining capacity to marry.
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