[PROBATE DIVORCE & ADMIRALTY DIVISION]

COLLETT v. COLLETT

1967 Jan. 23; April 4

Husband and Wife - Marriage - Foreign marriage, validity - Petitioner domiciled in England - Traditional concept as to validity - Petition for declaration that marriage valid - Petitioner British subject - Jurisdiction - Foreign Marriage Act, 1892 (55 & 56 Vict. c. 23) - Matrimonial Causes Act, 1965 (c. 72), s. 39 ¹ - R.S.C. (Rev. 1965) (S.I. 1965, No. 1776), Ord. 15, r. 16. ²

The husband, a British subject, and the wife, a Bulgarian, went through a ceremony of marriage conducted by a non-episcopally ordained minister in the British Consulate in Prague in 1948. The marriage would not have been recognised by Czechoslovakian law, and there was a failure of compliance with sections 2, 3, 4, 7 and 9 of the Foreign Marriage Act, 1892, dealing respectively with notice of intended marriage, the filing and entering of such notice, parental consent, the taking of an oath and the registration of a marriage under the Act. Shortly after the ceremony the parties came to England to live. The wife petitioned for a decree of nullity on the ground that the marriage was void ab initio, alternatively, for a declaration, in effect under R.S.C., Ord. 15, r. 16, that the marriage was valid.

Held, (1) that sections 2, 3, 4, 7 and 9 of the Foreign Marriage Act, 1892, were directory rather than mandatory in nature; that section 8, which dealt with solemnisation and the necessary requirements of a valid foreign marriage, was the crucial section of the Act; and that, all the essential requirements of that section having been complied with, the marriage was valid notwithstanding non-compliance with sections 2, 3, 4, 7 and 9, and the prayer for a decree of nullity would be rejected (post, pp. 491E, 493A).

Per curiam. The traditional concept of the common law and the canon law is that the essence of marriage is the formal exchange of voluntary consent to take one another for husband and wife (post, pp. 492G - 493A).

(2) That, as the petitioner was seeking a declaration that her marriage was valid, and was a British subject domiciled in England, she must proceed under section 39 of the Matrimonial Causes Act, 1965, and satisfy the requirements of that section and of rule 74 of the Matrimonial Causes Rules, 1957, and not

1 Matrimonial Causes Act, 1965, s. 39: "(1) Any person who is a British subject, or whose right to be deemed a British subject depends wholly or in part on his legitimacy or on the validity of any marriage, may, if he is domiciled in England or Northern Ireland or claims any real or personal estate situate in England, apply by petition to the court for a decree declaring that ... his own marriage was a valid marriage."

2 R.S.C., Ord. 15, r. 16: "No action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declaration of right whether or not any consequential relief is or could be claimed."

rely, as she had done, on the court's jurisdiction under R.S.C., Ord. 15, r. 16, to make declaratory judgments; accordingly, the petition would be dismissed (post, pp. 494G - 495A).

Kassim v. Kassim [1962] P. 224; [1962] 3 W.L.R. 865; [1962] 3 All E.R. 426 considered.

Garthwaite v. Garthwaite [1964] P. 356; [1964] 2 W.L.R. 1108; [1964] 2 All E.R. 233, C.A. distinguished.

PETITION.

The parties met in 1947, in Prague, where the husband, a British subject, was working, and the wife, a Bulgarian, was studying. Soon after they became engaged, early in 1948, communist forces took over the government of Czechoslovakia. The husband was told to leave the country and the wife was questioned at the Ministry of the Interior. On April 1, 1948, the parties went through a ceremony of marriage conducted by a minister, not episcopally ordained, in the British Consulate in Prague, in the presence of, among others, the British Ambassador. Thereafter, the parties came to England, where they lived together until 1965, and where the wife still lived. The wife sought a decree of nullity of marriage on the ground that the ceremony had been invalid for, inter alia, non-compliance with sections 2, 3, 4, 7 and 9 of the Foreign Marriage Act, 1892, or, alternatively, a declaration of the validity of the marriage. The matter came before Ormrod J. as an undefended suit on June 24, 1966, when it was adjourned for argument by the Queen's Proctor.

A. L. Mildon for the wife. The lex loci contractus applies unless it can be shown that it is in some way excluded: see Taczanowska v. Taczanowski³ and Merker v. Merker.⁴ For the lex loci to be excluded in this case would mean an extension of Taczanowska,⁵ namely, that persons marrying in an embassy are extra-territorial and in that sense can contract out of the lex loci. As this marriage was clearly not valid according to the lex loci, its validity rests on three possible grounds: (1) that it was a marriage under the Foreign Marriage Act, 1892, with which it did not comply; (2) that it was, despite informalities, a valid marriage according to English law; or (3) that it was a common law marriage, which it is not.

The Foreign Marriage Act, 1892, is permissive, not exclusive. However, if one is trying to bring a marriage within its ambit it

3 [1957] P. 301; [1957] 3 W.L.R. 141; [1957] 2 All E.R. 563, C.A.

4 [1963] P. 283; [1962] 3 W.L.R. 1389; [1962] 3 All E.R. 928.

5 [1957] P. 301.

is mandatory to comply with its provisions. Therefore: (1) a marriage must be celebrated before a marriage officer, and it is conceded that, by virtue of the Foreign Marriages Order in Council, 1913 (S.R. & O. 1913 No. 1270), reg. 4, the ambassador was a marriage officer; (2) notice of an intended marriage must be given in accordance with section 2 of the Act, which clearly was not done in the present case; (3) the notice must be filed or entered by the marriage officer in accordance with section 3, which was not done; (4) parental consent, in relevant cases, must be obtained or dispensed with, and in the present case, the wife being at the time only 19 years of age, that should have been done, and was not; (5) an oath is to be taken before the ceremony as required by section 7; (6) a marriage must be celebrated between 8 a.m. and 6 p.m. in the official house of the marriage officer with open doors; (7) the marriage must be registered. Not much turns on section 10, and section 11 (2) has been superseded by an Order in Council. No certificate exists in accordance with section 16; if it did the wife would be precluded from challenging the validity of the marriage. Section 13 operates as a type of saving clause. On practically every section of the Act the marriage fails to conform, and in order to contract a valid marriage by virtue of the Act one must comply with all the sections, although it is conceded that there appears to be no authority which says that failure to give notice is fatal to validity. There must be valid and official solemnisation, and section 8 (1) makes it quite clear that a marriage under section 8 (2) is only valid if section 8 (1) is complied with. If the contrary were true it would mean that there could be a valid marriage under section 8 (2) even where there had been a failure to comply with the preceding subsection. The corresponding enactment in England was the Marriage Act, 1836, s. 42, and if there was a failure to comply with the demands of that Act in England, a marriage would be void. It would be necessary, therefore, for there to be no section corresponding to section 42 of the Act of 1836 in the Foreign Marriage Act, 1892, if foreign marriages were not to be likewise void. Regulation 15 of the regulations of 1913, in contemplation of the type of situation which arose in the present case, makes specific provision for it by empowering the Secretary of State to waive or modify the requirements of the Act. If this is a valid marriage, not only would that mean that different conditions applied to Foreign Marriage Act marriages than to marriages in England, but it would also mean that the condition for the dispensing with the provisions of the Act laid down in the regulations could be ignored. If the provisions could always be ignored, the vice-consul

in Hooper v. Hooper⁶ could have done so, but he refused. It is useful to have regard to the reasons for the safeguards provided in the opening sections of the Foreign Marriage Act. If non-compliance with those sections does not affect validity, then a marriage of a person under 16 years of age would be valid as to form, the provision for an oath to be made being designed to prevent that sort of mischief, and quite different situations would prevail at home and abroad.

Despite failure to conform with formalities this marriage would have been valid if it had taken place before an episcopally ordained priest: see R. v. Millis,⁷ which is now thought to be restricted to marriages in England. However, by the principle of extraterritoriality, it might be extended to the embassy in Prague. [Reference was made to Catherwood v. Caslon.⁸]

Anthony Ewbank for the Queen's Proctor. It is conceded that sections 2, 3, 4, 7 and 9 of the Foreign Marriage Act, 1892, were not complied with. However, the essential requirements of the Act were that one of the parties should be a British subject and that section 8 (2) should be complied with. Not all defects in form go to the root of a marriage. [Reference was made to Halsbury's Laws of England, 3rd ed., vol. 36 (1961), p. 434.]

It is instructive to look at the position regarding validity of marriages prevailing in England at the time. Section 42 of the Marriage Act, 1836, provides that, in a few specified cases, a marriage would be void where the parties had acted knowingly and wilfully, many formalities not being dealt with at all. In such a case if the parties did not know of the defect the marriage would be valid: see Greaves v. Greaves.⁹

Two cases in which marriages were valid where a lack of formality involved was not expressly held to invalidate a marriage were Stallwood v. Tredger¹⁰ and Wing v. Taylor.¹¹

The absence of the registrar is not fatal to a marriage if the parties do not know of it. There are no modern cases involving marriages under the Foreign Marriage Act. Section 1 is the key section of the Act, i.e., one party must be a British subject and the ceremony must take place in a foreign land and be solemnised in the form laid down in the Act. Section 8 (2) alone deals with solemnisation. The purpose of the Act was to facilitate rather than to discourage British subjects' marriages abroad, and no reference is made in the

6 [1959] 1 W.L.R. 1021; [1959] 2 All E.R. 575.

7 (1844) 10 Cl. & Fin. 534, H.L.

8 (1844) 13 M. & W. 261.

9 (1872) L.R. 2 P. & D. 423.

10 (1815) 2 Phillim. 287.

11 (1861) 2 Sw. & Tr. 278.

Act to the effect of non-compliance with any of the formalities. As regulation 15 must mean that the form could be varied, forms do not seem to affect the strength of a marriage at all. The regulations were made under section 21 of the Foreign Marriage Act, which is very wide. [Reference was made to Hay v. Northcote.¹²]

If it is right that the embassy should be regarded as English soil, it might well mean that an analogy between the Foreign Marriage Act and other Acts would be closer that it might otherwise be.

As the mandatory powers of the Foreign Marriage Act as set out in section 1 and section 8 (2), which are much more fundamental than the formalities set out in the other sections, have been complied with, the marriage is a valid one.

[On the question of jurisdiction to grant a declaration, reference was made in detail to Garthwaite v. Garthwaite¹³ and Kassim v. Kassim.¹⁴]

A. L. Mildon in reply. The position regarding the declaratory judgment seems to be bound by Kassim.¹⁴ Regulation 15 of the regulations of 1913 introduced a concept similar to that of a bishop's special licence, putting a person abroad in the same position as a person at home. One must give effect to the words in section 8 (1) of the Act of 1892, "under this Act," and no-one concerned with this ceremony of marriage was contemplating such a marriage; nobody thought that it was taking place under the Foreign Marriage Act. There is, therefore, no question here of what formalities were not complied with, and, by analogy with the Act of 1836, the marriage must be void. If the marriage is not void, a declaratory judgment is sought. [Reference was made to Myrsep v. Myrsep.¹⁵]

April 4.ORMROD J. read the following judgment. This is a petition by Mrs. Mariana Ivanova Collett for a decree of nullity of her marriage to Mr. Alec Leonard Collett for want of form or in the alternative for a declaration that her marriage to Mr. Collett was a valid marriage. Mr. Collett entered an appearance indicating that he did not propose to defend the suit which, accordingly, originally came before me as an undefended case. In view of the difficult questions of law which were plainly going

12 [1900] 2 Ch. 262.

13 [1964] P. 356, 360, 377, 384, 397; [1964] 2 W.L.R. 1108; [1964] 2 All E.R. 233, C.A.

14 [1962] P. 224, 234; [1962] 3 W.L.R. 865; [1962] 3 All E.R. 426.

15 (1966) 110 S.J. 406.

to arise I adjourned the matter in order that I might ask for the assistance of the Queen's Proctor. This has now been given to me and, as always, I am very much indebted to him and to Mr. Ewbank, who appeared as amicus curiae on the Queen's Proctor's instructions, for his careful argument.

The ceremony of marriage took place on April 1, 1948, at the British Consulate in Prague, in the presence of the British Ambassador and the Vice-Consul, Mr. McLaughlin, and other persons. It was conducted by a minister of the Church of Scotland, Mr. Robert Smith, and followed the form in use in the Church of Scotland. Mr. Smith gave evidence before me and told me that in 1948 he was the recognised chaplain to the British Embassy in Prague and had an English congregation in the city.

The validity of the marriage is attacked on two grounds. It is submitted, first, that it was invalid by the lex loci contractus, that is, by the law of Czechoslovakia in force on April 1, 1948; and secondly, that it was not in accordance with the provisions of the Foreign Marriage Act, 1892. Accordingly, the wife claims that her marriage was void ab initio. It was conceded by the Queen's Proctor that the marriage was not in accordance with the formalities required by Czech law and cannot be supported by reference to the lex loci. This was established by the evidence of Dr. Drucker, a former member of the Czech bar. It was also agreed by both counsel that this marriage could not be supported on the basis of the Court of Appeal's decision in Taczanowska (orse. Roth) v. Taczanowski¹ for various reasons of which it is necessary to mention only two. In the present case the circumstances of the parties at the time of the marriage were not such as to justify this court in departing from the lex loci test of validity. Moreover, the exchange of consents took place before a minister who was not episcopally ordained. The validity or invalidity of this marriage, therefore, depends upon the Foreign Marriage Act, 1892.

It is, accordingly, necessary to examine the facts which bear on this question. The parties first met in Prague in 1947. At that time the husband, who is a British subject by birth, was working in Prague as a freelance journalist. He was 26 years of age and a bachelor. The wife, who is Bulgarian by origin, was studying at the University of Prague and acting as a correspondent for a Bulgarian newspaper. She was then a spinster aged 19 years and her home was in Bulgaria where her father

1 [1957] P. 301; [1957] 3 W.L.R. 141; [1957] 2 All E.R. 563, C.A.

held an important post in the government. In the autumn of 1947 the husband asked the wife to marry him and early in 1948 she agreed to do so. No formal engagement took place and no plans for a wedding were made. Soon after they became engaged the communist forces took over the government of Czechoslovakia and the husband was told to leave the country. They arranged that the wife, then Miss Sakazova, should also go to London. As she was about to board the aeroplane at Prague she was called to an office at the airport and taken for interrogation to the Ministry of the Interior. After several hours she was allowed to leave on her promise to return early next morning. She was met by the husband and taken to the house of some friends. Early next morning the husband took the wife to the British Consulate in Prague where hurried arrangements had been made for them to be married by the Reverend Robert Smith in the presence of the British Ambassador and the Vice-Consul, Mr. McLaughlin, who gave evidence before me. After a week or two the parties came to England where they lived together for some 17 years as husband and wife. They have a girl, now aged 16 years, and a boy now aged nearly nine years. Had not marital difficulties arisen, the nature of which is, of course, irrelevant at this stage, neither party would have suggested that theirs was anything but a valid marriage.

It is, however, submitted on behalf of the wife that this marriage is invalid for non-compliance with a number of the requirements of the Foreign Marriage Act, 1892, which are set out in detail in the petition. Briefly, it is said that no notice of the intended marriage was given in accordance with section 2; that the notice was not filed or entered by the marriage officer in accordance with section 3; that the consent of the wife's parents was not obtained or dispensed with as required by section 4; that no oath was taken as required by section 7; and that the marriage was not registered under section 9. An informal certificate was provided by the Reverend Robert Smith and signed by all those present including the parties and the ambassador. There was extreme urgency in view of the obvious threat to the wife, and the embassy at Prague at that time was without the necessary forms and register because, I understand, no marriage officer at the embassy had been appointed by a marriage warrant and no administrative arrangements for marriages under the Act of 1892 had been made.

Mr. Ewbank concedes each of these examples of non-compliance with the provisions of the statute but contends that these

are not mandatory in nature and do not go to the question of validity. He submits, on the contrary, that section 8 is the vital section and that all the requirements of that section were complied with in this case. Mr. Mildon concedes that all save one of these requirements were met but contends that the ceremony did not take place between the hours of 8 a.m. and 6 p.m. I am not satisfied on the evidence that the ceremony, in fact, took place before 8 a.m. It is common ground that it took place in the morning about 8 a.m. and I find on the evidence that it took place between 8 a.m. and 6 p.m. Section 8 (2), as amended, is in these terms:

"Every such marriage shall be solemnised at the official house of the marriage officer, with open doors, between the hours of eight in the forenoon and six in the afternoon, in the presence of two or more witnesses, and may be solemnised by another person in the presence of the marriage officer, according to the rites of the Church of England, or such other form and ceremony as the parties thereto see fit to adopt, or may, where the parties so desire, be solemnised by the marriage officer."

"Marriage officer" is defined in section 11 (1) as any officer authorised by a Secretary of State under a marriage warrant or any officer authorised by regulations made under section 21. Apparently, in 1948 there was no officer in Prague authorised under a marriage warrant, but by the Foreign Marriages Order in Council, 1913 (S.R. & O. 1913 No. 1270), reg. 4, the ambassador is a marriage officer and does not need a marriage warrant. (This provision has been revoked by the Foreign Marriage Order, 1964, No. 926.) The "official house of a marriage officer" is defined in section 24 and in the regulations to which I have referred. Regulation 3 provides that the house in which the ambassador resides or which is occupied by him for the purpose of his embassy shall be deemed to be the official house of the ambassador. The consulate is, therefore, clearly within this definition. The ceremony, therefore, took place in the presence of the marriage officer at the official house of the marriage officer. There is no evidence that the doors were not open. I am satisfied that the parties exchanged the declarations set out in subsection (3) of section 8. The actual rite itself is in no way challenged. I am satisfied, therefore, that the actual ceremony of marriage was properly performed and was in all essentials a marriage. The question remains, however, whether the

non-compliance with the procedural requirements, detailed above, renders this marriage invalid.

This matter can be approached in two ways: narrowly from the construction of the Act itself; and on a much broader front from a consideration of the effects of non-compliance with procedural requirements on marriage, in English law generally.

Looking at the Act of 1892 itself, section 1 provides that:

"All marriages between parties of whom one at least is a British subject solemnised in the manner in this Act provided in any foreign country or place by or before a marriage officer within the meaning of this Act shall be as valid in law as if the same had been solemnised in the United Kingdom with a due observance of all forms required by law."

I emphasise the word "solemnised." The only section of the Act which deals with solemnisation is section 8, and if I am right in my construction of that section and on the facts, this marriage was "solemnised in the manner in this Act provided." It would be difficult to hold that a failure to comply with section 2 in regard to notice could be fatal to the validity of the marriage, since under regulation 15 of the 1913 regulations the Secretary of State can waive or modify the requirements as to notice. A failure under section 3 (which refers to filing and posting of notices of intended marriages) is nothing to do with the parties and could not reasonably be held to go to validity. If section 4, which relates to parental consents, goes to validity, it would be contrary to the fundamental rules of marriages in England that absence of parental consent does not affect validity once the ceremony has taken place. It would, in my judgment, require express statutory provision if absence of parental consent were to affect the validity of marriages under this Act. The absence of the preliminary oaths required by section 7 must be essentially a procedural or administrative requirement since one of them is repeated as a declaration at the ceremony, and the other goes only to parental consent. Lack of subsequent registration can only go to proof of the marriage and this marriage was most amply proved before me. Finally, section 13 seems to make it clear that the failure in at least some of the procedural requirements (as opposed to the formal requirements of solemnisation) cannot go to validity. Section 13 (1) provides:

"After a marriage has been solemnised under this Act it shall not be necessary, in support of the marriage, to give any proof of the residence for the time required by or in

pursuance of this Act of either of the parties previous to the marriage, or of the consent of any person whose consent thereto is required by law, nor shall any evidence to prove the contrary be given in any legal proceeding touching the validity of the marriage."

Section 13 (2) provides:

"Where a marriage purports to have been solemnised and registered under this Act in the official house of a British ambassador or consul, ... it shall not be necessary in support of the marriage, to give any proof of the authority of the marriage officer by or before whom the marriage was solemnised and registered, nor shall any evidence to prove his want of authority, whether by reason of his not being a duly authorised marriage officer or of any prohibitions or restrictions under the marriage regulations or otherwise, be given in any legal proceeding touching the validity of the marriage.

It will be observed that under section 13 (1) solemnisation alone precludes subsequent inquiry as to residence, or as to want of parental consent, whereas under section 13 (2) solemnisation and registration preclude all inquiry as to procedural matters and as to the authority of the marriage officer.

In my judgment, on the true construction of the Act of 1892 and the regulations, section 8 is the crucial section which deals with solemnisation and the necessary requirements of a valid marriage under the Act, whereas the other sections to which I have referred are essentially administrative or procedural and are directory rather than mandatory in nature.

This conclusion is, in my judgment, consistent with the general approach of English law to the question of the formal validity of a marriage. But since there appear to be no reported authorities on this aspect of the Foreign Marriage Act, 1892, I must expand this conclusion to some extent.

The control of the formation of marriage in this country has a long statutory history, much of it intended to prevent clandestine marriages. The general tendency has been to preserve marriages where the ceremonial aspects were in order rather than to invalidate them for failure to comply with the statutory provisions leading up to the ceremony. This is illustrated by the Marriage Act, 1823, s. 22, which provides expressly that a marriage shall be void for undue publication of banns or for a defective licence if the parties "shall knowingly and wilfully intermarry" without due publication of banns, etc. In

Wright v. Elwood,² it was held that a marriage would not be held void under this section unless both parties were cognisant of the undue publication or other defect.

The Marriage Act, 1836, s. 42, contained a similar provision extending to marriages before a registrar.

In Holmes v. Simmons,³ Lord Penzance held that a notice of an intended marriage which omitted certain of the husband's Christian names and suppressed the fact that he was only 15 years of age did not affect the validity of the marriage.

In Plummer v. Plummer,⁴ the Court of Appeal held that in a case of a marriage by licence a notice in an entirely false name did not affect the validity of the marriage. Warrington L.J.⁵ referred to the Marriage and Registration Act, 1856, s. 19, which provided certain penalties if any "valid marriage" shall be had by any wilfully false notice, declaration or certificate, and pointed out that the legislature there expressly accepted that a valid marriage could be had in such circumstances. He expressed the principle in the concluding sentence of his judgment where he observed that the consequence of a false notice was not to invalidate the marriage but to expose the parties to the penalties of perjury.

In Greaves v. Greaves,⁶ Lord Penzance held that a marriage in the parish church, intended to be by licence, was valid, notwithstanding the fact that the licence was not issued until the day after the ceremony. He said⁷:

"I understand the meaning of this provision [section 22 of the Marriage Act, 1823] to be that the marriage is only to be annulled if it is established affirmatively to the satisfaction of the court, that at the time when the ceremony was solemnised both parties were cognisant of the fact that a licence had not issued, and being cognisant of that fact wilfully intermarried."

In my judgment, the principle which emerges from the corpus of legislation regulating the formation of marriages in England and from the reported cases arising therefrom, is that if a ceremony of marriage has actually taken place which, as a ceremony, would be sufficient to constitute a valid marriage, the courts will hold the marriage valid unless constrained by express statutory enactment to hold otherwise. This is consistent with the traditional concept both of the common law and of the canon

2 (1837) 1 Curt. 662.

3 (1868) L.R. 1 P. & D. 523.

4 [1917] P. 163, C.A.

5 Ibid. 173, 174

6 (1872) L.R. 2 P. & D. 423.

7 Ibid. 424.

law that the essence of marriage is the formal exchange of voluntary consents to take one another for husband and wife. In my judgment, the Foreign Marriage Act, 1892, should be construed upon the same principle. Accordingly, as all the essential requirements of section 8 were complied with in this case, the marriage of the parties is, in my judgment, a valid marriage. If this view should prove to be wrong and this marriage be held to be void, I am satisfied upon the facts that at the date of the conception of each of the children of the parties both parties reasonably believed it to be valid within the meaning of the Legitimacy Act, 1959, s. 2.

I must now consider the alternative prayer in the petition for a formal declaration that the marriage is a valid marriage.

This prayer as it appears in the petition is clearly an attempt to invoke the jurisdiction of the court to make declaratory judgments under R.S.C., Ord. 15, r. 16. The question arises, however, whether in view of the Matrimonial Causes Act, 1965, s. 39, this court can or ought to exercise this jurisdiction under the Rules of the Supreme Court in a case which is covered by that section. The point is of some importance because under section 39 of the Matrimonial Causes Act, 1965, and rule 74 of the Matrimonial Causes Rules, 1957, a special code of procedure is laid down which was not followed in this case. Section 39 of the Act of 1965, which was formerly section 17 of the Matrimonial Causes Act, 1950, applies primarily, but not exclusively, to petitions for declarations of legitimacy. Under section 39 (1) it is provided that:

"Any person who is a British subject ... may, if he is domiciled in England or Northern Ireland ... apply by petition to the court for a decree declaring that ... or that his own marriage was a valid marriage."

These provisions cover in all respects the present petitioner and the present petition. By section 39 (6) all such petitions must be served on the Attorney-General and by rule 74 of the Matrimonial Causes Rules, 1957, the petitioner must apply to the registrar for directions as to what parties shall be served with the petition. These are important safeguards because the rights of third parties may be adversely affected by a declaration that a marriage is valid and, consequentially, that the children of the marriage are legitimate. Accordingly, if the court were to exercise the jurisdiction under the Rules of the Supreme Court and declare a marriage valid, it would enable a petitioner to obtain what might be, in effect, a declaration of legitimacy of his or her

children, without complying with the requirements of section 39 (6) and of rule 74.

I had occasion to consider an analogous situation in Kassim v. Kassim.⁸ In that ease the question arose whether this court had the option to grant either a decree of nullity under its matrimonial jurisdiction or a declaration under R.S.C., Ord 25, r. 5 (as it then was), that the marriage was void. I concluded that there Was no room for the exercise of the discretionary jurisdiction founded on the Supreme Court Rules. In the present case I have come to the same conclusion, namely, that in eases covered by section 39 of the Matrimonial Causes Act, 1965, the court must proceed under and in accordance with that section. The reasons for so holding, which I have already outlined, are at least as, if not more, compelling than those in Kassim v. Kassim.⁸

Mr. Mildon, however, drew my attention to some observations relevant to this point in the judgments of the Court of Appeal in Garthwaite v. Garthwaite.⁹ Willmer L.J.¹⁰ and Diplock L.J.¹¹ were prepared to assume that this court had jurisdiction to grant bare declarations of validity otherwise than under section 17 of the Matrimonial Causes Act, 1950. In that case the question had been raised but not argued whether section 17 of the Act of 1950 precluded the court from entertaining proceedings for a bare declaration of validity in circumstances in which the petitioner could not bring herself within the terms of that section. The court was not considering the problem which is before me now, which is whether the petitioner, who is within the terms of that section, can apply for a bare declaration of validity in a different form of proceeding and without complying with the provisions of that section. In the Garthwaite case¹² the petitioner was admittedly not domiciled in England and was seeking a declaration, not that her marriage was valid ab initio, but that it still subsisted. The judgments in the Garthwaite case¹² do not, therefore, bear on the present problem.

In my judgment, a petitioner who is seeking a declaration that his or her marriage is valid and who is a British subject and domiciled in England must proceed under section 39 of the Act of 1965. Accordingly, the petitioner is not entitled to such a declaration on the present petition. The result is that I reject

8 [1962] P. 224, 233, 234; [1962] 3 W.L.R. 865; [1962] 3 All E.R. 426.

9 [1964] P. 356; [1964] 2 W.L.R. 1108; [1964] 2 All E.R. 233, C.A.

10 [1964] P. 356, 377.

11 Ibid. 397.

12 [1964] P. 356.

the prayer for a decree of nullity and the alternative prayer for a declaration that the marriage was valid.

I should only add that at the conclusion of the argument, in order possibly to save time and money, I gave the petitioner leave to file a second petition under section 39 of the Matrimonial Causes Act, 1965, but for reasons no doubt which seem good to her she has not seen fit to avail herself of that leave. Accordingly, I have to deal with the petition as it stands in front of me, in which case, I refuse both declarations and I think the right order will be to dismiss the petition.

Solicitors: Pink, Marston, Birch & Delafield, Portsmouth and Southsea.

C. N.