Legal Definitions - personal law

Personal law refers to the set of legal rules that govern an individual's most fundamental personal and family matters, such as marriage, divorce, inheritance, and legal capacity. Unlike "territorial law," which applies based on where an event occurs or where property is located, personal law "follows" the individual, often regardless of their physical location.

The specific criteria for determining a person's personal law vary depending on the legal system:

• In countries with common law systems (such as the United States, the United Kingdom, Canada, and Australia), a person's personal law is typically determined by their domicile. Domicile is the place where an individual has their permanent home and intends to return, even if they are temporarily living elsewhere.
• In countries with civil law systems (common in continental Europe, Latin America, and many other parts of the world), personal law is usually based on an individual's nationality. This means the laws of their home country apply to their personal status, regardless of where they reside.

Here are some examples illustrating how personal law applies:

• Example 1: International Inheritance

  Consider a citizen of France (a civil law country where personal law is based on nationality) who has lived for 30 years in California, USA (a common law state where personal law is based on domicile). This individual owns significant movable assets, such as bank accounts and investments, in both countries. If they pass away, the question arises as to which country's law dictates how these movable assets are distributed among their heirs. Under French personal law, their nationality would point to French inheritance laws. However, if a U.S. court determines they had established domicile in California, California's personal law (based on domicile) might apply to their movable assets. This scenario highlights how personal law determines the legal framework for significant life events like inheritance, and how the distinction between nationality and domicile can lead to complex situations.

• Example 2: Legal Capacity to Marry

  Imagine a 17-year-old individual who is a national of Country A, where the legal age for marriage is 18. This individual moves to Country B, where the legal age for marriage is 16 and they wish to marry their partner. If Country A operates under a civil law system, its personal law (based on nationality) would dictate that the individual is not yet legally capable of marrying. If Country B operates under a common law system and recognizes the personal law of the individual's domicile, and if the individual has not yet established domicile in Country B (or if Country B's conflict of laws rules defer to the law of nationality for marriage capacity), they might still be considered underage for marriage according to their personal law. This demonstrates how personal law governs fundamental aspects of an individual's legal capacity, such as their ability to enter into a marriage contract.

• Example 3: Recognition of Divorce

  A couple, both nationals of Country X, marry in Country X. After several years, they move to Country Y and establish their permanent home there, acquiring domicile. If they decide to divorce, the validity and terms of their divorce might be governed by different personal laws depending on the legal system. If Country X is a civil law country, its personal law (based on nationality) might assert jurisdiction over their marital status. However, if Country Y is a common law country, its courts might apply its own personal law (based on the couple's domicile in Country Y) to determine the grounds for divorce and the dissolution of their marriage. This illustrates how personal law dictates the legal framework for the dissolution of a marriage, and how the interplay between nationality and domicile can determine which legal system's rules apply.