[1979] 3 All ER 463

The petitioner was a German national with a German domicile of origin. In 1971 she was arrested in Germany and charged with a number of serious offences there. While on bail during her trial the petitioner absconded and, using the illegally obtained passport of another German national, came to England in August 1974 on a six month entry visa. The petitioner adopted the name and identity of the person described in the passport and lived at a series of temporary addresses. In October the petitioner met and formed a casual relationship with an English national and in January 1975, shortly before463 her entry visa was due to expire, married him. The marriage was by licence in a register office, the petitioner using the name in the passport and giving false particulars about herself in the notice of marriage. The certificate of marriage contained the same false particulars. Although the parties had sexual intercourse together before and after the marriage at no stage did they live together and by the end of 1975 the relationship had ended. Two days after the marriage the time limit on the petitioner's stay in England was removed by the Home Office on her husband's application. In July 1975 the petitioner applied for British citizenship giving the same false particulars as in the marriage application, but in December she withdrew her application because she was apprehensive that the Home Office might consult the German authorities. In August 1976 her husband left for India to join a religious sect. In September 1978 the petitioner was arrested under her real name and extradition proceedings were commenced against her. Part of her defence to those proceedings was that she had the right to be deemed a British subject by virtue of the 1975 marriage and was therefore immune from extradition^a. In order to substantiate that defence the petitioner filed a petition in the Family Division pursuant to s 45(1)^b of the Matrimonial Causes Act 1973, which provided that any person whose right to be deemed a British subject depended on the validity of a marriage 'may, if he is domiciled in England ... apply by petition' for a declaration that the marriage was valid. The Attorney General opposed the petition on the grounds (i) that, although a marriage by licence was not necessarily invalidated under s 49^c of the Marriage Act 1949 by the assumption of a false name and description, it was invalidated where one of the parties impersonated a living and identifiable person, (ii) that the petitioner was not domiciled in England and was therefore not eligible to present a petition under s 45(1) of the Matrimonial Causes Act, and (iii) that under s 45(5)^d of that Act the court had a discretion whether to make a decree on the petition and in the circumstances ought to exercise that discretion by refusing a decree in view of the petitioner's previous fraud and perjury.

Held - (i) In the case of a marriage by licence the misdescription of a party did not render the marriage void under s 49 of the 1949 Act. Accordingly, the petitioner's marriage was not void by reason of her assumption of a false name and description even though it was the name and identity of a living and identifiable person. The question whether the marriage was, at the suit of the husband, merely voidable did not arise since he had accepted it. It followed that the marriage was valid (see p 473 a, p 474 d to h and p 475 d, post); Plummer v Plummer [1916-17] All ER Rep 591 applied.
   (ii) However, because of the abolition of a wife's dependent domicile by s 1^e of the Domicile and Matrimonial Proceedings Act 1973 the petitioner could not obtain and had not obtained an English dependent domicile on marriage. Nor had she obtained an English domicile of choice, since her intention in residing in England was to avoid trial in Germany rather than to set up a permanent home in England. Moreover, the petitioner's illegal entry and residence barred her from acquiring an English domicile of choice. The petitioner had therefore not abandoned her German domicile of origin and was not domiciled in England and accordingly was not entitled to present a petition under s 45 of the Matrimonial Causes Act 1973 (see p 475 e f and j to p 476 d and p 477 d e, post).

   (iii) In any event, by virtue of the power contained in s 45(5) of the Matrimonial Causes Act 1973 to make 'such decree as it thinks just', the court had a discretion not to make any decree at all if the circumstances so warranted. Because of the petitioner's fraud and464 criminal acts it would not be a just exercise of that discretion for the court to grant the decree sought, even if she had proved she had an English domicile. The petition would therefore be dismissed (see p 478 d e and p 480 c d, post).

Notes
For petition to establish validity of marriage, see 19 Halsbury's Laws (4th Edn) para 1333, and for cases on marriages celebrated under false names and descriptions, see 27(1) Digest (Reissue) 52-53, 342-349.
   For the Matrimonial Causes Act 1973, s 45, see 43 Halsbury's Statutes (3rd Edn) 594.
   For the Domicile and Matrimonial Proceedings Act 1973, s 1, see ibid 620.

Petition
By a petition dated 15 January 1979 Astrid Huberta Isolde Marie Luise Hildegard Proll sought a declaration under s 45(1) of the Matrimonial Causes Act 1973 that the marriage she had entered into with the second respondent, Robin Esmond Scott Puttick, on 22 January 1975 at Stepney Register Office was a valid and subsisting marriage. The Attorney General was notified and joined as respondent to the petition as required by s 45(6) of the 1973 Act. The facts are set out in the judgment.

465

8 May 1979. The following judgment was delivered.

SIR GEORGE BAKER P delivered the following judgment.

1. The petition
   It is founded on s 45 of the Matrimonial Causes Act 1973, the relevant part of which reads as follows:

   The prayer of the petition seeks a declaration that the marriage celebrated on 22 January 1975 between the petitioner and the second respondent may be declared a valid and subsisting marriage. In the petition it is said:

The first respondent, the Attorney General, asked for further particulars of this paragraph. The first is whether there was any person entitled to the names of Senta Gretal Sauerbier and identifying such person. The answer to that is:

   Then she was asked whether it is alleged that at any other time, apart from the occasion of the marriage, the petitioner so represented herself in relation to having been divorced from a previous marriage, and she said that on no other occasion, apart from her marriage, had she represented herself as having been divorced from a previous marriage. That is not true. She was further asked what other false particulars she alleges she gave about herself and whether such false information was given knowingly. The answer is:

   In her affidavit in support of the petition she says: 'These proceedings are brought by me in order to establish my entitlement to registration as a citizen of the United Kingdom and Colonies under s 6(2) of the British Nationality Act 1948.'
   Appropriate action has been taken in accordance with the Matrimonial Causes Rules 1977^f, r 110, to notify and join the Attorney General as is required by s 45(6) of the Matrimonial Causes Act 1973. By his answer the Attorney General puts all the matters alleged in the petition in issue, and denies that the petitioner is entitled to the relief claimed or any relief.

   For centuries it has been a fundamental legal principle in this country that no man can take advantage of his own wrong. That is to be found in Broom's Legal Maxims^g, citing466 Coke on Littleton^h, that is, Lord Coke's Commentaries of The Laws of England by Littleton, published first around the year 1600. The quotation is in Latin: 'Nullus commodum capere potest de injuria sua propria'-'No man can take advantage of his own wrong'. Broom continues:

It is closely allied to the maxim, ex dolo malo non oritur actio, that is, a right of action cannot arise out of fraud, and ex turpi causa non oritur actio, which in effect means the same thing.
   Coke's Commentary on Littleton has through the centuries been accepted as defining the laws of England as they were at the turn of the 16th century. The latest edition refers to 'The Institutes of the Laws of England; or, a Commentary upon Littleton. Not the name of the author only, but of the law itself'. On the title page of Broom there is a quotation that 'Maxims are the condensed good sense of nations'.
   It seemed to me at the start of this hearing that there was indeed a strong case on the pleadings for the court to reject out of hand as failing in limine a petition founded as it is on fraud, perjury, false pretences and forgery. However, I thought it better to examine the facts and statute law, as this is a novel case. It is important to everybody and a decision is obviously urgent.

2. The facts and my findings
   The petition is brought in the name of Anna Puttick. She states in her petition: 'The Petitioner was born Astrid Huberta Isolde Marie Luise Hildegard Proll on the 29th day of May 1947 at Kassel, in the Federal Republic of Germany. The maiden name of her mother was Mšller.' I have no reason to doubt that that is so, or to doubt that her domicile of origin is German, although that is not admitted by the Attorney General.
   I find that the woman who has appeared and given evidence as petitioner before this court is in fact Astrid Proll. In May 1971 she was arrested in Germany on criminal offences including attempted murder and robbery. She does not admit these offences and has tendered what would amount in our procedure to a plea of not guilty. In September 1973 the trial began, and on 4 February 1974, an important date, the trial was adjourned because of her ill-health, and she was granted bail by the German authorities. Her evidence is that she remained in Germany for six weeks, which would take her to 1 April, although I do not, of course, seek to be exact as to dates. She then, what we would colloquially call, 'jumped her bail'. She went first to Italy, having in her possession DM5,000, which were then DM5á52 ³/₄-5á53 ³/₄ to the pound, to give some idea of the amount in English money. But money alone, of course, was not enough: she had also a passport. Her evidence is that she bought it from another person for DM3,000, who in turn had bought it on the criminal market. The passport is in the name of Senta Gretel Sauerbier, born Schulz, in Bremen on 22 June 1947, who had resided in Hamburg. It gave the shape of her face and the colour of her eyes, and her height, and then said that she had no distinguishing marks. That would not quite coincide with the petitioner, who agrees that she had on her arm a tattoo of Mickey Mouse, which was subsequently removed in this country, of course under the national health scheme, and thereafter she could stand full inspection on the passport.
   It was valid from 29 December 1972 (the date of issue) to 28 December 1977, and was renewed in London on 19 November 1977. The photograph on the passport is a photograph of Astrid Proll, the petitioner. There is clearly a forgery because the photograph is partly covered by what appears to be the official stamp of Hamburg. The passport also contains a visa for the United States of America. The petitioner has said that467 it is purely a coincidence that there is an American visa on the passort. I do not believe that, and for this reason (and this is why the date of the 4 February, and the eight weeks, is important) the visa is dated 10 April 1974, that is, ten days after the expiration of the eight weeks which the petitioner says she spent in Germany before going to Italy. The irresistible inference, having regard also to the facts that the petitioner's mother is in America, that the petitioner has been to America, she says, on three occasions, having on one occasion spent some months there and that she has been to school there, is that this visa, which was valid until 10 April 1975, was put on the passport after it came into the possession of the petitioner or her agent who was acquiring it for her on the criminal market.
   Senta Sauerbier, who I will call hereafter Dr Sauerbier, has given evidence, and says that she is a physician, was married in April 1971 and divorced in June 1972. No divorce papers are now produced; the petitioner says they have been lost. There is no evidence of how the petitioner obtained the divorce papers. Dr Sauerbier was not a helpful witness. She said that she is now known as Schulz (her maiden name) and that she was married to Sauerbier. I was invited to give her the warning that she need not answer questions which she thought might incriminate her and I did so. She said that she had never met the petitioner, that it was not her photograph on the passport, but added: 'This passport appears to be an earlier passport of mine.' This was the first time that she had been in England. Then she refused to answer, as she was entitled to do, the question: 'What happened to the passport?' She was asked in cross-examination if she knew Astrid Proll, the lady in court. After a long pause she said that she did not, and then she said she did not wish to say whether she knew her or not. But I am satisfied, and find, that Dr Sauerbier (or Schultz) is not the woman who was concerned in the marriage of 22 January 1975 alleged by the petitioner.
   The purpose and intention of the petitioner, to quote her own words, is as follows: 'My intention was to get as far away from Germany as possible. I purchased a German passport to cross borders to work, and to identify myself because I could not use papers under my own name.' That has been the continuing purpose of the petitioner throughout. She left Italy after three months, that is, sometime in July, she says because there were too many German tourists and she was frightened of recognition. On 6 August she arrived in England as Senta Gretel Sauerbier. Her passport is stamped on arrival, with permission to stay for six months. She had with her, she says, something in the neighbourhood of £1,000, and received money to the extent of DM2,000 when she was here, so obviously some person knew how to find her. She did not work until after the marriage in January, and she stayed in various establishments, some of which are what we colloquially call 'squats'.
   She was asked to give particulars of the places where she had resided, and she set out: 'To the best of her recollection the Petitioner took up the following residences in England and Wales ... ' and she has identified in her evidence which of these were 'squats', which were rented, and which belonged to a friend. It is clear beyond peradventure that these further particulars are in many respects inaccurate; the petitioner says 'imprecise', but I am afraid that they are a good deal worse than that. The first address at which she stayed, in Holland Park Avenue (she cannot remember exactly where) seems to have been arranged from Italy. The third address that she gives, 37 Belgrave Street, London E1, which she says was a 'squat', is not an address at which I think she ever lived at all. It was the address of Robin Puttick. As will appear, there are other inaccuracies. I appreciate that it may well be that she cannot remember exactly where she was, particularly as she says that she always used false addresses for documents and never put a true one unless she had to, in case she was found out.
   In October 1974, that is, a couple of months after she arrived or a little more, she met the second respondent, Robin Esmond Scott Puttick (whom I will call Robin Puttick), at a birthday party given by a woman, Mrs Julia Mainwaring, who has appeared and given evidence. Her birthday was on 27 October and the party was probably about that time, in Julia Mainwaring's premises of which she was, and I think she still is, the tenant.

468

   The evidence of Robin Puttick is given in an affidavit (and the weight to which I give all this will be apparent in due course): 'I met the Petitioner for the first time sometime in August/September 1974 ... ' Well, that is not the evidence before the court which is that it was towards the end of October:

He had a brother who lived in Aston Street but I do not accept that he lived there at all, or that she lived there, and they certainly did not live there together. His home was 37 Belgrave Street, so far as he had a home; and she was living, at the end of 1974, she says, 'in or about the summer of 1975' at 25 Marlborough Avenue, E8, which was her first 'squat'.
   Her story is that he was a plumber and electrician and his practical work was important to her. She watched him at work, and sexual intercourse began between them in December 1974. In so far as there was sexual intercourse, I find that it was casual, infrequent and meaningless to her; but from her side with a purpose which she, in fact, achieved. She never moved in with him, or he with her, either before or after marriage, because, she said, it was very important for her to have her own place. She wanted to avoid people, and they always had separate addresses. That, I think, is true. Her permission to stay in England was due to end on 6 February 1975 at the expiration of the six months. She knew it would be dangerous to overstay, for if she was caught so doing attention would be drawn to her and questions asked. She was, I think, desperate to have her visa extended, preferably indefinitely. A way to achieve this was by marriage to an Englishman. So at about Christmas time she raised the question with Robin Puttick, who first knew her as Anna, and later, at the time of her marriage, as Senta Gretel Sauerbier.
   Neither, so it is said, enquired about the background or family of the other. She says that she was not interested in his parents and made it quite clear to him that she did not want to be asked about her past, and he respected her wishes. He new, however, that she was very interested in becoming a British national. That is apparent from his affidavit, where he says: 'The question of the Petitioner acquiring British nationality only arose after the marriage. The Petitioner seemed very interested in becoming a British national, but I did not realise the reason for this.' The inducements which she held out to him, namely that marriage would enable her to stay in the United Kingdom, so that their sexual relationship could continue, and that he would have a married man's tax allowance, prevailed. He discussed marriage with his friend Mrs Mainwaring, who was a sociologist. At first she did not agree, having regard to her own history, but changed her mind after meeting the petitioner once, and being 'pleased that they had established a relationship', whatever that means.
   The petitioner appeared to me to be a clever witness and a persuasive woman. I am sure, and find, that the purpose of the marriage, and on her side the sole purpose, was to be able to remain in the United Kingdom and subsequently to obtain citizenship. Two of the witnesses to the ceremony, Gillian Lees and Monty Hurman, have said in evidence that they assumed it was a marriage of convenience, and some time has been devoted to that question. 'Marriage of convenience' is a popular, not a legal, description. All I need say is that the marriage lacked all the purposes and intentions of a genuine and generally accepted union, namely mutual love, support and comfort; cohabitation in the matrimonial home as husband and wife; a union for life and the production of children. But that is immaterial to the validity of the marriage: see Silver (orse Kraft) v Silver, although I think it is relevant when considering the question of domicile.
   One of them telephoned the Stepney Register Office, and on 20 January 1975 they469 went there together. She produced the passport and the divorce papers. A notice of marriage was completed and signed in the presence of the superintendent registrar by Robin Puttick, and confirmed by the signature (or alleged signature) of the petitioner. That signature is not unlike the one on the passport, but there is no evidence of who wrote the one on the passport. The application is a 'Notice of marriage by certificate and licence'. It gives the particulars of Robin Puttick and of Senta Gretel Sauerbier; she is 27 years. Well, that is right. Her previous marriage had been dissolved; she was a student of sociology. The place of residence in both instances is given as 10 Aston Street, E14; the period of residence 'more than a month' in each case. That was all untrue, and Robin Puttick must have realised that the residence and period of residence was false. Then he signed and she confirmed. There is a note on the first page, '22/1/75', which apparently was booked for the wedding. On the second page her father's name is given, and his occupation 'Engineer', and then 'P/P seen' (that must mean 'passport seen') and 'West German' and the number of the passport, which is the actual number of the Sauerbier passport, is given. Then there is mention of a divorce decree, in writing which I am not immediately able to decipher.
   On the same day the superintendent registrar wrote to the Registrar General, as follows:

On 21 January a reply was received from the General Register Office saying, in effect, that the certificate and licence could be issued, and then a warning about the validity of the divorce, which does not arise.
   It is not established that Robin Puttick knew that she was other than as described, although he knew that the residence columns were untrue.
   On 22 January Robin Puttick went to the register office and met there the petitioner, who had been driven to the register office by a girl, Jane Grant, whose house or squat, 25 Marlborough Avenue, she says she shared at that time. Monty Hurman, Julia Mainwaring and her small daughter, and Gillian Lees were present, and the parties were married. Of course, the same lies appear on the certificate as on the notice; that followed from the impersonation. There are two matters in relation to the ceremony which I have considered. There was a ring, a gold band. It was given to the petitioner, she says, by a friend two days, or shortly before, the ceremony. The friend was a male named Phil. She appeared very reluctant to reply to questions in cross-examination about the ring, but I have concluded that the only significance is that she wore it for but a short time only and gave it up, she says, because of her work.
   The other matter is that Hurman never saw Robin Puttick with a beard; and Mrs Mainwaring did not think, according to her evidence, that he had one at the wedding. They both knew him well. The petitioner, on the other hand, when she identified Robin Puttick in recently taken photographs was asked, 'When you married him, did he look like that or are there any differences?' She answered: 'He has a longer beard now and longer hair.' 'Have you any doubts that it is him?' Answer, 'No'. Then I asked a question: 'He seems to have been clean-shaven at one time?' and I referred to an old passport of his which showed him to be clean-shaven. She was then asked by her counsel, 'Was he clean-shaven when you married him?' Answer, 'No, I have never known him without a beard'. However, I do not now think that the evidence goes to identity; it merely tends to show that the premarital relationship was both casual and infrequent.
   I find that the two persons married on 22 January were in fact the petitioner Astrid Proll and the second respondent Robin Puttick.

470

   After the marriage they all went to a public house and then to a restaurant. I am not even satisfied that the two of them spent that night together at 10 Aston Street, or anywhere else.
   The next event was that the husband went to the Home Office two days later, on 24 January, and had the time limit for her stay removed, because of her marriage to him. That, again, appears on the face of the passport.
   Their relationship, such as it was, and I do not accept that it was anything like as close as she would have me believe, cooled rapidly. They never had a home, nor did he support her, even before she started work in the spring of 1975. She says that sexual intercourse continued until June or July 1975. Then, she says, it ceased at about the end of that year: 'We just drifted apart.' They were last seen together in the Lake District in the second week in August by Mrs Mainwaring, who was camping there. They called in on their way to Scotland. That is the only convincing evidence of their being together. He became increasingly interested in an Indian religious sect and, according to the petitioner, was already thinking of going to India by 28 May 1975. There was no suggestion that she should accompany him. He left for Poona, India on 5 August 1976. So, if Mrs Mainwaring is right about seeing them in the second week of August, it must have been 1975, and not 1976 as he says in his affidavit.
   Late in the case Mrs Mainwaring, who was the second last witness, disclosed that he returned from India 18 months to two years ago, and then went back. The inference is that he never saw or attempted to find the petitioner.
   Meanwhile, the petitioner made an application for British citizenship under s 6(2) of the British Nationality Act 1948, which reads as follows:

Subsection (3) merely refers to a person who has renounced or been deprived of citizenship. The application, typed, signed, and declared by her to be true, before a solicitor empowered to administer oaths, repeats all the former lies. It is unnecessary for me to go through it in detail, because it sets out everything which identifies her as Sauerbier but, of course, giving the surname now of Puttick. It was consistent with the Sauerbier passport and produces a signature about which no evidence has been given, but it seems to be 'Senta Puttick'. It contains the same lies about her father and about the divorce. That was sent to the Home Office.
   Had this fraud succeeded, the Secretary of State had power to deprive her of her citizenship under s 20 of the British Nationality Act 1948, which reads as follows:

   On 28 May 1975 Robin Puttick wrote to the Home Office:

Then on 8 August (there had obviously been some further correspondence in between) she wrote:

The truth of the matter must be, I think, that she was apprehensive about being called on to take an oath of allegiance. Then, finally, on 10 December she writes:

She says, and I think this may well be right, that she withdrew her application because she was apprehensive that the Home Office might consult the German authorities.
   She obtained work first with the Hackney Borough Council in the spring of 1975 and later, in 1977, as a fitter's mate, and then as a supervisor. She obtained work qualifications and various documents, including a union card and a driving licence, all in the name of and with the identity of Sauerbier, although in her married name of Puttick. How she came to obtain a driving licence, whether she took a test or what happened, has not been a matter of evidence but in any event the driving licence application must have given a false or an accommodation address, because that appears on her licence which has been produced.
   On 15 September 1978 she was arrested as Astrid Proll. On 10 October 1978, after her arrest, she again applied for British citizenship under s 6(2) of the British Nationality Act 1948 in her true name and, so far as is known, with her true particulars. Section 20(2), which I have read, would therefore not apply. She sought a judicial review to compel the Home Secretary to act, but this was refused both by the Queen's Bench Divisional Court and by the Court of Appeal, who said, I am told, that the proper forum to decide the question of the validity of her marriage was the Family Division. She filed this petition on 15 January 1979. On 5 February 1979 the Chief Magistrate made an order for her extradition. On 15 February, that is to say ten days later, she applied for habeas corpus from the Queen's Bench Divisional Court who, I am told, adjourned her application pending this hearing.
   The only other material fact is that on 19 March the senior registrar gave Robin Puttick leave to give his evidence on affidavit. This was supported by affidavits of the second respondent and his solicitor that he was unable to come to England, that there would be serious disruption of his religious way of life and to other members of the community in which he lives in Poona. There could also be obstacles to his return to India by the Government of India, and he would not come. The Attorney General opposed the application and renewed his opposition before me on grounds which appeared to me to be sound. I refused to admit the second respondent's affidavit evidence unless it was clear that it was impossible for him to come. He has been given every opportunity to come, fare paid, since the start of this hearing; but the story now is that his guru will not allow him to come, and that he has undertaken by vow to live in the community. No mention has been made of his visit of 18 months or so ago. Finally I agreed to read his affidavits for what they are worth. Obviously there were many questions which the Attorney General's counsel would wish to ask.

472

3. The validity of the marriage
   This marriage is either valid or void. It cannot be viodable, as the husband accepts it and does not allege that he did not validly consent. I quote the words of s 11 of the Matrimonial Causes Act 1973:

   None of the other matters in para (a), (b), (c), or (d) is relevant. This was a marriage by certificate and licence, for which notice in the prescribed form must be given. Section 27(3) of the Marriage Act 1949 provides:

Section 32, which deals with marriage under certificate by licence, provides:

Then follow various other requirements. Then further in s 45 there is provision for the solemnisation of marriage in a register office, and how it is to be done. Finally, in s 49, void marriages:

   A clear distinction has been recognised by the English courts between marriage by banns and marriage by licence. In the former a misdescription of a party renders the marriage void, because there had not been the required publicity. In the case of marriage by licence there is no such requirement and no such result follows, for the object of the licence is not publicity but identity. In Plummer v Plummer ([1917] P 163 at 168-169, [1916-17] All ER Rep 591 at 592) Lord Cozens-Hardy MR said:

Bankes LJ said ([1917] P 163 at 172, [1916-17] All ER Rep 591 at 594):

Finally, Warrington LJ, in this very strong Court of Appeal, said ([1917] P 163 at 174, [1916-17] All ER Rep 591 at 595):

In that case the court approved the earlier decision and dicta of Swinfen Eady J in Re Rutter, Donaldson v Rutter. The distinction is to be found as long ago as 1809 in Cope v Burt, and even then Sir William Scott considered that the point had been decided in Cockburn v Garnault in 1792, and in the Court of Arches in 1793. Then in 1934 the Court of Criminal Appeal, presided over by Lord Hewart CJ (who had been counsel for the Queen's Proctor in Plummer v Plummer) sitting with Avery and Talbot JJ in R v Lamb, did not call on counsel for the Crown to argue that the court was bound to follow Re Rutter and Plummer v Plummer. It is consequently not surprising that counsel for the Attorney General conceded that I am bound to hold that the assumption of a false name or description does not avoid the marriage, although I understand that he wishes to reserve the point for argument elsewhere if necessary.
   A distinction could be drawn if the person who gave notice was not the same individual as the person who appeared at the ceremony. Such a marriage would, I think, be void. See in Lane v Goodwin ((1843) 3 Gal & Dav 610 at 611):

The Crown further submits that, whereas here it is not simply a matter of misdescription, even fraudulent misdescription in the licence, but of impersonation by the complete adoption of the name and identity of a living and identifiable person, namely Dr Sauerbier, in order to obtain the status of a married woman, the marriage is invalid, at least if Mr Puttick knew or was wilfully blind to the fact that the woman he was purporting to marry was Astrid Proll. Such personation would strike at the roots of registration and it could imperil the status of the person whose identity is assumed, that is Dr Sauerbier, who would be recorded as having married in England. Great confusion could be caused to any descendants of hers, especially after the death of the parties if it happened before the discovery of the fraud. I cannot accept this argument, for which the only support appears to be a submission made in Lane v Goodwin.

474

   I am bound by authority. Defects in registration law cannot be cured by this court; nor can I find that Robin Puttick knew or was wilfully blind to the true identity of the woman he married. Of course his evidence is as unsatisfactory as hers on this point, and he says in his affidavit of 12 February:

And in his other affidavit of 16 February he says:

Against this, of course, there was no cross-examination; and Monty Hurman, who saw her only at the wedding, said that he thought from what Robin Puttick said that she was a refugee, and he assumed she was from East Germany. Be that as it may, the evidence is insufficient for me to draw any inference against Robin Puttick, who does not oppose the prayer of the petition.
   My conclusion is that the marriage is valid.

4. The husband's domicile and the wife's dependent domicile
   His domicile of origin is undoubtedly British. Much time has been spent in discussing whether the petitioner, as was the submission at the start, had a dependent domicile at the relevant date, that is when she made this application, and whether he had abandoned his domicile of origin, acquiring the domicile of choice in India. There is much to be said for the view that he has, although the onus is on the Crown to prove it. But in my opinion the question is now irrelevant as a woman no longer acquires the domicile of her husband by virtue only of her marriage. Section 1 of the Domicile and Matrimonial Proceedings Act 1973 has a marginal note as follows: 'Abolition of wife's dependent domicile.' The weight to be given to a marginal note was considered by the Court of Appeal, whose judgment was delivered by Upjohn LJ, in Stephens v Cuckfield Rural District Council ([1960] 2 All ER 716 at 720, [1960] 2 QB 373 at 383):

The section reads:

Subsection (2) deals with cases where the married woman had the husband's domicile by dependence at the coming into force of the Act:

   Counsel for the petitioner argues that the 1973 Act was passed to enable a married475 woman to avoid taking a dependent domicile if she did not want it, but that she can still take it if she wishes, and so the petitioner can have, and has, a domicile dependent on the domicile of her husband, namely an English domicile. I cannot accept this construction of s 1. Test it in this way. There have been many cases where English girls have married servicemen, mostly American servicemen serving in this country. Indeed, divorce law was changed over the years in order to enable such women to bring proceedings based on residence in this country and not on domicile. The American serviceman (and I hope this is not defamatory of Americans, but it has happened) is posted back to America at the termination of his service here. He says that he will arrange for his wife with whom he has been living here since the marriage to come over in a week or two, and that is the last that is heard of him. In these circumstances the wife's domicile was and remained dependent on that of her husband, an American domicile, so she had and retained American domicile. But now, since the passing of this Act, her domicile on marriage is no longer automatically the domicile of her husband, and she cannot get an American domicile unless and until she goes to America, for domicile is acquired partly by intention and partly by residence; there must be both. I cannot construe s 1 as counsel for the petitioner suggests. Dependent domicile has been abolished and I find that this woman could not and did not obtain an English domicile on marriage.
   Of course, a marriage as normally understood would be strong evidence that a woman has acquired the same domicile as her husband, for example, when a foreign woman comes here and marries an Englishman and they settle down as a married couple, have children and so on; but it is only one factor in her choice. Its compelling feature is that the woman sets up a home and lives with the husband. That is not so here. The example was suggested by counsel for the petitioner of two students marrying, the one studying at Bristol University and the other at Durham; they meet infrequently and do not get together to set up a home, at any rate during the time that they are at their studies. But the difference there is that these two intend to set up a home, to cohabit together as husband and wife. There is no evidence whatsoever in this case that the petitioner and Robin Puttick intended any such thing and, indeed, from the facts the inference, I think, must be the other way.

5. Wife's domicile of choice
   Her case is, briefly, that she thinks that by marrying Robin Puttick she made a decision to stay here, that she had no intention of going back to Germany but intended to remain here and wanted to make it her permanent home. At the time of her application she had been here over four years. It is, of course, for her to prove that she has abandoned her German domicile of origin. The length of a person's residence, though material, is rarely decisive: see per Lord Macnaghten in Winans v Attorney General ([1904] AC 287 at 297-298, [1904-7] All ER Rep 410 at 416):

Then evidence by a person himself of his or her intentions is treated with reserve, even where the truth of the evidence is undoubted. Here the petitioner's evidence is all suspect, if only because she is a woman who would tell any lie, use any deceit, to achieve her end, which is in short not to have to return to Germany. I cannot accept her evidence476 unless it is supported, and in particular I cannot accept her evidence about her places of residence here.
   To put it colloquially, she was a woman on the run, and I think the true inference to be drawn from the facts and circumstances is that, if at any time she had realised, not that she was in danger, that was constant, but that detection and arrest was imminent, she would have left England at once for a safer land, given the means to do so. Can anyone doubt that at all times since her arrest she would, if she could, escape, and had she the opportunity and means to do so, leave this country as quickly as possible? She is a fugitive from justice, and her true intent has always been to avoid having to return to Germany to face the trial. Her intention to remain in England, for whose laws she has shown contempt, and for whose institutions and way of life she has never, so far as I know, expressed any admiration, was a secondary intention forced on her only as necessary to achieve her primary object.
   The mere fact that a person is liable to be deported, for example, an alien subject to the Aliens Order (see Boldrini v Boldrini and Martini) does not of itself prevent acquisition of a domicile of choice: but see Briggs v Briggs, where the respondent left the country through fear of his creditors but did not acquire a domicile of choice in the United States of America. The question is whether the person is in England primarily to avoid detection, or is it primarily to set up home. She never set up home here, although she resided and obtained work qualifications; but she did not want to go back to Germany, her domicile of origin, because she did not want to surrender to her bail, to be tried. Her primary purpose in living here was to avoid detection, and no abandonment of domicile of origin has been proved. She agreed also in her evidence that she might have returned to Germany if the charges against her were ever dropped. In my opinion she did not acquire a domicile of choice in this country.
   Another way of looking at her alleged domicile of choice is that it was unilateral. The hosts, that is, the people of England as represented by the Crown, had no say in the matter, for her residence beyond six months was achieved by lies and impersonation, and fraud. Had the truth been known, she would never have been allowed to stay, so it was not a free choice: see Rayden on Divorceⁱ:

   Perhaps most important for this case is a passage in Dicey and Morris on the Conflict of Laws^j. The authors are dealing with the rule on acquisition of domicile of choice, namely^k: 'Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise.' They say:

477

The cases cited in support of the proposition are all Dominion cases and none of them has been produced to this court. I accept this passage in Dicey, which supports the Crown's submission that a person cannot achieve status by fraud: see also R v Secretary of State for the Home Department (Governor of Horfield Prison), ex parte Sultan Mahmood in the Court of Appeal. There Stephenson LJ, adopting the words of Lord Widgery CJ in the Divisional Court, said: 'A person who obtains some essential documents by fraud should not be allowed to enjoy a superior status on that account.' See also R v Secretary of State for the Home Department, ex parte Hussain. There leave to enter was obtained by fraudulent production of an invalid passport. Such leave was held ineffective.

6. Discretion
   Section 45(5) of the Matrimonial Causes Act 1973 is as follows:

The words 'shall make such decree as it thinks just' must, in my judgment, give the court a discretion not to make any decree if the circumstances warrant, even in a case in which domicile and a valid marriage are proved, in contrast with s 1(4) of the 1973 Act which provides:

It does not contrast, in my view, with s 13(1) which is a specific provision for bars to relief where a marriage is voidable. The wording is:

   Although s 45 stems from ss 21(b) and 188 of the Supreme Court of Judicature (Consolidation) Act 1925, through s 17 of the Matrimonial Causes Act 1950 and s 39 of the Matrimonial Causes Act 1965, the words in question do not seem ever to have been construed by a court, but a somewhat similar provision in s 24 of the Solicitors Act 1843, that any judge or the Master of the Rolls 'are hereby respectively authorised to make such order in the Matter as may be just', was considered by the Divisional Court of the Queen's Bench Division in Re an Application under the Solicitors Act 1843. Wills and Ridley JJ held that they were not bound to make any order for a practising certificate to be granted. Wills J said (80 LT 720 at 722) that 'just' must mean 'that which is right and fitting with regard to the public interests'.
   The petitioner argues that once the necessary facts are proved the only discretion the court has is to make a decree of validity or a decree of nullity, and that it could cause great difficulty and uncertainty and cost if a marriage was proved but a decree of validity refused, and it would cause hardship to 'a woman who has been married to a citizen of478 the United Kingdom who wants to apply', as does the petitioner, 'under s 6(2) of the British Nationality Act 1948'. This argument does not impress me, and there are several answers to it.
   (1) If, as here, the petitioner fails to prove domicile, the valid marriage will not result in a declaration of validity, and the application must be dismissed: so much for the 'difficulty, uncertainty and cost argument'.
   (2) I have always understood that s 45(1) enables the court to make a decree declaring a marriage valid but not a decree declaring a marriage invalid. Invalidity has to be decreed, if at all, by proceedings under RSC Ord 15, r 16, which reads as follows:

This is inherent in the amendments to the Matrimonial Causes Rules made in 1976 following the decisions in the Court of Appeal in Eneogwe v Eneogwe, and of Ormrod J in Aldrich v Attorney General, which amendments are now to be found in the Matrimonial Causes Rules 1977, rr 109 and 110. See also B v Attorney General (B intervening) ([1966] 2 All ER 145 at 145-146), where Ormrod J said:

I share that doubt.
   (3) Rule 109 of the Matrimonial Causes Rules 1977, provides: '(1) Where ... the only relief sought in any proceedings is a declaration with respect to a person's matrimonial status, the proceedings shall be begun by petition.' It then sets out what the petition shall state, and continues:

It would be strange indeed if the court has discretion to refuse to make a declaration affecting matrimonial status, in that it was unjust to make it, but not to refuse a declaration of validity of marriage under s 45 in similar circumstances.
   (4) I find myself unable to understand how s 45(4) can be brought within the petitioner's argument. That subsection reads:

   (5) A decree subsequently proved to have been obtained by fraud or collusion shall not prejudice any person: that is s 45(5)(a) which I have already read. It cannot be the479 intention of the statute that a decree must be pronounced (to the permanent prejudice of the Crown) when, although there has been no fraud at the hearing, the whole history is of fraud and perjury and the facts to found a decree have been brought about by criminal acts and offences and a fraudulent, deceitful course of conduct.
   (6) In Halsbury's Laws of England^l, under the title Equity, appears this statement of the law, with which I entirely agree. 'Equity does not allow a statute to be made an instrument of fraud.'

   It is unnecessary for me to repeat the Attorney General's catalogue of evils which could flow from the grant of this application. The applicant admits offences under s 3 of the Perjury Act 1911 by reason of what happened at the ceremony and by the description in the certificate. These offences carry a penalty of up to seven years' imprisonment. They are serious. She agrees that she attempted to obtain a certificate of naturalisation by deception. There are false statements contrary to s 28 of the British Nationality Act 1948. There is the forged passport, and offences under the Forgery Act 1913 in respect of the use of that passport. She obtained entry by an offence against s 24(1)(a) of the Immigration Act 1971. She obtained a driving licence by deception.
   I do not think it would be just, indeed, in my opinion it would be utterly unjust, to grant a decree, even if she had proved an English domicile, which she has not. Perhaps I am back where I began, with the maxim which I can now express as 'No woman can take advantage of her own wrong.' This court should not and cannot further the criminal acts of this applicant and permit her to achieve an end by the course of conduct which she has pursued. The petition fails and is dismissed.

Solicitors: Seifert Sedley & Co (for the petitioner); Treasury Solicitor; Fisher Meredith (for Robin Puttick).