Incidental Question - Section of week 2 lectures PDF

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Week 2- Lecture 4 Incidental question 

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An incidental question is a legal concept; the resolution of which is a preliminary to the solution of the main question. A preliminary question that leads to a bigger issue/the main event. (incidental question) Incidental question may arise if English conflicts rules refer to a matter of intestate succession to Mexican law. Under Mexican law the property could devolve to legitimate children of the deceased. Thus the main issue is succession, however the incidental question is the legitimacy of the deceased children. (also containing foreign elements). Therefore what law should decide on the legitimacy of the children? An incidental question asks whether the choice of law rules in a foreign system should be applied in the circumstances of the case. Therefore in the case of asserting the legitimacy of these children, should the court be using its own laws or Mexican laws. Incidental question is concerned with applying the choice of law to a question that arises when using the internal law of the relevant foreign system.

Defining the problem 1. The choice of law rules(lex causae approach)  Should Mexican rules govern that incidental question?  In the case that the English court permits the international private law of Mexico to regulate the issue of legitimacy of the children(the incidental question) as well as the intestate moveable succession.(main issue) 2. The choice of law rules(lex fori approach)  Should English rules govern the incidental question?  The English court applies its own set of law rules regarding legitimacy and is therefore adopting the lex fori approach.

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The problem of incidental question will arise only if the rules of the lex fori and the rules of the lex causae differ as to the recognition of the judgement.

Lex Causae 1. Decide not only which categories of persons are entitled to inherit from the deceased but also whether a person belongs to one of the categories.  Arguments in favour of the lex causae approach: 1. International uniformity of decisions 2. It is applied loyally.  Arguments against the lex causae approach: 1. Choice of law rule of the lex fori regarding the main issue only covers this question and not the IQ. 2. Disregards the necessity of internal uniformity of decisions 3. Requires proof of foreign choice of law/recognition rules

Lex fori Justification: 1. Choice of law rules are designed to point to the applicable substantive (firm) rules of foreign systems and not their choice of law rules. 2. The logical precedence of the IQ, leading to a good reasoning for determining the IQs directly by the choice of law rules under lex fori. Lex causae v lex fori approach Example 1 After a death of his first wife, a Danish man, who for many years has lived in Greece, marries a Greek woman who belongs to the Greek Orthodox Church. The marriage is celebrated in Germany before a Greek Orthodox priest but no civil ceremony takes place. Such a religious marriage is not valid in the eyes of German law. After the wedding the couple returns to live in Greece. The man dies intestate, leaving his wife and a son from his first marriage. A substantial amount of the deceased’s movable property is in Denmark.    

Main issue(before a Danish Court) is intestate succession to moveable . Danish rule- intestate succession to movables is governed by the deceased lex domiciii of death- Greek law. Incidental question: Was the deceased’s second marriage valid? (conflicting arguments between first family who are reliant upon German law and the second wife who relies upon the Greek Civil code.

The Danish court has 2 options: 

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Lex fori approach- applies Danish choice of law rule, regarding the formation of marriage, ‘’the form and validity of a marriage is governed by the lex loci celebrations, i.e. German law which considers the marriage as null. Lex causae approach- applies Greek choice of law rule, in which the marriage is valid and the new wife can inherit. This would be a more just outcome.

Example 2 The man A, who is a national of country X, is married to B, who is a national of country Y. The couple live in country Y where B obtains divorce. For some reason (eg that country X claims exclusive jurisdiction for its own courts for the divorce of its citizens), the divorce is not recognised in country X although it is fully valid in country Y. Later on, A, who still lives in country Y, enters into a new marriage there with C and the couple live for many years in country Y until A, who has kept his X nationality, dies, leaving movable property in country Y.    

Main issue: before a court of country Y, intestate succession to movables. Country Y rule- intestate succession for movables is governed by the deceased;s lex patriae, ie the law of country X. Incidental question: Should the divorce decree(official order) be recognised?

The court of country Y has 2 options:

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Lex fori approach- the court of the country Y applies its own rules on the recognition of the divorce decree and the divorce is fully valid meaning the second wife inherits(just outcome) Lex causae approach- the court of country Y applies the recognition rule of country X and divorce is not recognised, the first wife inherits.

Determination According to the Nature of the Case and Policy of the Forum Alternative approach:   

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The question of which system of choice of law should be applied to the IQ must be decided not on th grounds of logic, but upon considerations of justice and convenience. IQ to be treated in the light of the result to be achieved. E.g. the legitimacy of a child depends on the validity of the marriage of his parents. The court should examine which of the competing laws holds the marriage to be valid and apply that the law of the IQ. A negative aspect of this is a lack of predictability

Secondary Incidental Question     

E.g. Under the law of the system chosen to govern the IQ, only legitimate children have the right to inherit. Primary IQ- whether a child of the deceased is legitimate Secondary IQ- the legitimacy of the child depends upon the validity of his parent’s marriage. Third degree IQ- the validity of a divorce in a third country of one of his parents. What law should be applied to determine these IQS? Answer depends on whether one follows the lex fori or lex causae approach....