[1971] 1 All ER 378

In 1932, the husband, who was a Jew, and the wife, who was Aryan, both being German nationals, were married in Berlin. The daughter was born in 1933. By agreement the husband and the wife did not have sexual intercourse after the birth of the daughter. The husband was a teacher, but when the Nazi regime came into power in Germany and the persecution of the Jews started he became unemployed and was without prospect of employment. The wife went out to work and supported the husband and the daughter, but in 1937 or 1938, when persecution of the Jews had intensified and Aryans married to Jews were subject to discrimination, she was told by her employers that she would either have to divorce the husband or give up her job. If the wife had lost her job she would not have been able to obtain another except in a most menial capacity. She also feared that she would be evicted from the flat where the family lived. In 1938, therefore, the husband and the wife agreed that the husband should escape from Germany leaving the wife behind with the daughter, who was a delicate child, and that the wife should obtain a divorce. They planned to reunite as soon as possible. The husband reached England in 1939. The wife, having been advised that the fact that the husband was a Jew was insufficient ground for divorce, based her petition on the personal grounds of failure by the husband to provide an income, desertion and refusal of sexual intercourse. A decree was granted on those grounds and the wife was then able to feel that she was out of danger and that political pressures against the daughter, a person of mixed blood, would be lessened. Meanwhile the husband remained in England, became a naturalised British subject and acquired a domicil of choice in England. The wife and the daughter arrived in England in 1949 and although the husband and the wife never lived together thereafter, the husband having become blind and being resident in a hostel and the wife having to work, they frequently visited one another. The wife applied for and obtained United Kingdom citizenship in 1949, describing her marriage as still subsisting. From 1956 the husband, under the Federal Compensation Law of Germany, received a pension as a victim of the Nazi regime. In 1965 he died, and the wife applied for probate of his will describing herself as the widow of the husband and obtained from the German embassy a limited common partial probate in which she was described as 'his wife'. Her application to the German court for a widow's pension under the Federal Compensation Law was rejected on the ground that she was the divorced wife of the husband. In order to satisfy the German court, which would accept such a declaration as evidence of the subsistence of the marriage, the wife applied to the English court for a declaration that the divorce decree of 1939 was invalid, and that both at that date of the passing of the Federal Compensation Law and at the date of the husband's death she was validly married to him. The grounds on which her petition was based were that she had been induced to obtain the divorce by duress and that the proceedings leading to the decree were a sham, the stated grounds were untrue and that the real reason for the divorce being granted (ie that she was an Aryan married to a Jew) offended against the concept of natural justice. Ordinance 16 of the Allied Control Council for Germany which came into force in 1946 and which378 dealt by s 77 with compensation and mitigation of hardship resulting from judicial decisions based on racial, political or religious grounds, expressly provided by s 77(4) that no claim for the restoration of a marriage which had been dissolved through divorce could be made.

Held - (i) In considering the validity of a foreign decree pronounced by a court of competent jurisdiction, when the basis of the attack on it was that it was a violation of natural justice, the court could look only to the proceedings themselves and was not entitled to consider the truth or falsity of the evidence of the matrimonial offences on which the decree was based or to substitute its own view of the merits of the case (see p 386 d and p 387 h, post).
   Pemberton v Hughes [1899] 1 Ch 781 followed.
   Middleton v Middleton [1966] 1 All ER at 172 applied.
   Formosa v Formosa [1962] 3 All ER 419 explained.
   (ii) The doctrine of comity had no application where the foundation of the attack on the foreign decree did not lie in the conduct of the foreign proceedings or in the merits of the decision but lay outside them, eg in that duress had overborne the will of the wife in instituting the proceedings (see p 388 c, post); the Control Council Ordinance 16, apparently validating the decree by s 77(4), was part of the internal law of a sovereign State, ie Germany, and not part of the law of England (see p 388 d, post).
   R v Bottrill, ex parte Kuechenmeister [1946] 2 All ER at 436 applied.
   Igra v Igra [1951] P 404 distinguished.
   (iii) There was no reason in logic or in principle why the doctrine of duress should not apply to a decree of divorce obtained under duress where an English court was considering a decree granted by another jurisdiction (see p 384 j, post) (dictum of Barnard J in Burke v Burke (1955) The Times. 17 March applied); accordingly, since the wife when seeking the decree was overborne by a genuine and reasonably held fear caused by a present and continuing danger to life, limb or liberty from external circumstances for which she was not responsible, the declarations which she sought would be granted (see p 385 b and p 393 g and h, post).

Notes
For the jurisdiction of the Divorce Court to make declarations of matrimonial status in cases of conflict of laws, see 7 Halsbury's Laws (3rd Edn) 111, para 197.

379

Petition
This was a petition by the wife, Gertrud Berta Hedwig Meyer, for a declaration (1) that a decree of divorce granted by the Civil Chamber of the Landgericht Berlin on 24 October 1939 was invalid, (2) that on 29 June 1956 the wife was lawfully married to the husband, Isaak Lšbel Kurt Meyer; and (3) that on 20 July 1965 the wife was lawfully married to the husband. The facts are set out in the judgment.

16 October 1970. The following judgment was delivered.

BAGNALL J. On 2 July 1932, Isaak Lšbel Kurt Meyer and Gertrud Berta Hedwig Boettcher (whom I will call respectively 'the husband' and 'the wife') were married at a registry office in Berlin. The husband and the wife were German nationals and were and remained, at least until the end of 1939, domiciled in Germany. The husband was of the Jewish race, the wife was not. In October 1933, their only child Laura (whom I will call 'the daughter') was born. In the meantime the Nazi regime had come into power as the government of Germany; I shall have to say more about the consequences of that at a later stage. It is sufficient to say now that there was initiated a policy of dividing Jews from, as they were called, Aryans and of eliminating Jewish influence from German life. The policy intensified into persecution and culminated during the war years in 'the final solution'-extermination. In August 1938, the husband escaped secretly from Germany first to Czechoslovakia, then to Poland and finally to England. The wife and daughter remained in Berlin.
   On 24 October 1939, the Civil Chamber of the Landgericht Berlin adjudged that the marriage of the husband and the wife was dissolved. I must read the record of that adjudication:

That judgment, which I will call 'the 1939 decree', was final with effect from 15 December 1939.
   The husband remained in England, served in the army and in 1947 became a British subject by naturalisation. By then he had become, and he remained, domiciled in England. The wife left Germany with the daughter at the end of 1948 and they arrived in England at the beginning of 1949. Thereafter the wife lived in England as the wife of the husband in circumstances which I shall have to describe in more detail later. They never went through any further ceremony of marriage. On 2 April 1949, the wife applied for registration as a citizen of the United Kingdom and Colonies as the wife of the husband. In that application she stated:

The wife was registered pursuant to that application on 19 May 1949. By then the wife, whether or not she was the lawful wife of the husband, had become and she remained and still remains domiciled in England.
   On 20 February 1946, there had come into force an Ordinance of the Allied Control Council for Germany^a, s 77 of which provided, so far as material, that:

The action had to be brought within a period which expired early in 1948. It was provided that:

By sub-s (4) of the section it was provided:

381

On 29 June 1956, the government of the Federal Republic of Germany passed the Federal Compensation Law, making provision for the payment of compensation for, inter alia, loss of professional income to the victims of the Nazi regime. Under that law the husband became entitled to receive and did receive a pension of about £1,400 per annum from 1 October 1956 until he died on 20 July 1965. By the same law a widow of the husband is entitled to receive from the date of his death during her life or until remarriage, a pension of about £840 per annum if she was married to the husband on 29 June 1956 and at the date of his death. The wife applied to the Landgericht Berlin for such a pension as the widow of the husband. On 5 February 1958, her application was rejected for the reason that she was not the widow but the divorced wife of the husband. On 18 April 1969, the Civil Chamber of the Landgericht Berlin rejected her appeal against that decision. Earlier, by an order dated 25 June 1968, the same Civil Chamber had directed as follows:

Unfortunately the wife did not produce any such certificate or judgment or other suitable document but only, as I understand it, certain correspondence with the Home Office and grants of probate of the will of the husband, in which she was described as his wife. Accordingly, notice of appeal has been duly entered against the decision of 18 April 1969, and I have been told that the German court has intimated that it will accept the decision of this court as to the validity of the 1939 decree under English law. Hence these proceedings.
   By her petition the wife claims: (1) a declaration that the 1939 decree is invalid; (2) that it may be declared that on 29 June 1956 the wife was lawfully married to the husband; and (3) that it may be declared that on 20 July 1965 the wife was lawfully married to the husband. The grounds on which that prayer is founded are first, that the wife was induced to obtain the 1939 decree by duress, namely by the fear of danger to her life and liberty and to that of her daughter if she failed to obtain that decree, and further and in the alternative, that by reason of the matters alleged in the petition, the 1939 decree offended intolerably against the concept of justice prevailing in English courts and was contrary to natural justice. It may be that technically the first ground is merely a manifestation of the second but nothing of substance turns on that. Quite apart from duress, the case for the wife under the second ground is that the proceedings leading to the 1939 decree were a sham, that the stated reasons for the decree were not the real reasons and were untrue and that the real reason was that the husband was a Jew married to an Aryan. It is conceded on the part of the wife that the court which pronounced the 1939 decree was the proper court, indeed, the only court, having jurisdiction to dissolve the marriage of the husband and the wife and that no complaint can be made of purely procedural defects, such as failure to give notice to the husband or to hear submissions on his behalf.
   The learned registrar gave directions that this petition should proceed without a respondent and that evidence might be given by affidavit. On 23 July 1970, Baker J asked that the Queen's Proctor should make arrangements for counsel to appear as amicus curiae, and in that capacity and on the Queen's Proctor's instructions leading and junior counsel appeared before me. I am greatly indebted to382 them for their researches and for the comprehensive submissions they have put before me both on the facts and on the law.
   It is plain that under RSC Ord 112, r 3, I have jurisdiction, albeit a discretionary jurisdiction, to make an order which is a declaration as to martial status. If authority were required for that proposition, it is to be found in Har-Shefi v Har-Shefi. In those circumstances and against the background which I have described, the questions of law that I have to determine are: (1) will this court decline to recognise the validity of a decree of divorce pronounced by a foreign court on the ground that the petitioner instituted the proceedings leading to that decree under duress? If so, what kind and what degree of duress will suffice? (2) Apart from duress, will this court decline to recognise the validity of such a decree on the grounds that it offends against English views of substantial justice or natural justice and, if so, what kind of violation of substantial justice or natural justice will suffice? (3) If otherwise this court would decline to recognise the validity of such a decree, will it nevertheless assert that validity on grounds of comity, and, if so, in what circumstances? And, in particular, should this court take that course in the present case having regard to s 77 of the Control Council Ordinance?
   It is well established that where rights and liabilities depend on consent, a consent given under duress is no true consent and the rights and liabilities will be determined as if no consent had been given. Examples abound in the law of contract, eg Kaufman v Gerson and Kahler v Midland Bank Ltd. I should expect to find this principle embedded in any civilised system of jurisprudence. Marriage is a special type of contract because it alters status; and it is plain that that principle applies to marriage. In H (otherwise D) v H the wife married in order to escape from Hungary after the Russian occupation. The occupation was in 1945 when the wife was 14 years old; the marriage was in 1949. Karminski J, after hearing argument to the contrary from the Attorney General on behalf of the Queen's Proctor, held that her consent to the marriage was negatived by duress. The nature of the duress is set out in the report ([1953] 2 All ER at 1231, [1954] P at 260, 261):

It appears ([1953] 2 All ER at 1231, 1954] P at 260) that before the marriage ceremony was performed, the wife had agreed with the husband that they should not live together after the marriage and that it should be dissolved at the earliest possible opportunity. The wife had discussed it383 with her widowed mother who entirely approved the scheme on the basis that it was the only practicable way in which the wife could leave the country. It is to be observed that in that case there was no specific threat but a present and continuous apprehension of danger to life, health or liberty.
   In Buckland v Buckland, the threat was of a prosecution of the petitioner on an unjust charge and Scarman J held that consent was vitiated by duress because, following the view of the law expressed in H v H, he had ([1967] 2 All ER at 302, [1968] P at 301)-

and the learned judge held that the petitioner was entitled to a declaration that the marriage ceremony was null and void.
   In Szechter (otherwise Karsov) v Szechter, the petitioner consented to marriage in order to escape from imprisonment in truly appalling conditions and from threats of a mental home, a severe sentence of imprisonment, followed almost certainly by rearrest; and in any event the prospect of penury, inability to obtain any employment other than of a menial nature and inability ever to lead a normal life. Sir Jocelyn Simon P in giving his reasons for making a decree of nullity, said ([1970] 3 All ER at 915):

Sir Jocelyn Simon P held that in that case that test was satisfied. I must confess to having been troubled by the words 'threat of immediate danger'; but, having regard to the fact that Sir Jocelyn Simon P expressly followed H v H, it is not necessary, in my judgment, that there should be an immediate specific threat; it is sufficient if there is a present continuing danger, although the apprehended death, injury or deprivation of liberty may not happen until an unknown future time. Equally, in my judgment, although dangers of mere penury or social degradation will not of themselves invalidate an otherwise good marriage, they cannot be disregarded if they form an essential element in the danger to life, limb or liberty. I add, in dealing with Szechter v Szechter, that I desire respectfully to adopt and to reassert the philosophy contained in the second paragraph of Sir Jocelyn Simon P's judgment.
   The doctrine of duress, then, applies to the contract of marriage; does it also apply to a dissolution of marriage? If the question arose in relation to a system of law which recognised divorce by consent, I should have no doubt that the doctrine would apply. For, as in marriage, there would be a special type of contractual arrangement which altered status. But the doctrine is not confined to acts which are contractual, or bilateral or multilateral; it applies to making a will and it applies to a voluntary disposition inter vivos. I can see no reason in logic or on principle why it should not apply to a decree of divorce obtained under duress, at any rate where an English court is considering a decree granted by another jurisdiction. It may be that different considerations would apply if an English court were considering a decree pronounced384 by an English court; but I am not concerned with that situation. I should add that I am fortified in my opinion by an obiter dictum of Barnard J in Burke v Burke where, after holding that a marriage contracted in Russia was invalid, the learned judge added that if the marriage had been valid he would have held that a decree of divorce obtained in Russia would have been ineffective to dissolve it because the wife was being 'persecuted and tyrannised to obtain a divorce'. It appears from the file, which I have examined, that there the Russian wife and her mother were being threatened with terms of imprisonment unless she obtained a divorce.
   I accordingly conclude that this court will declare a foreign decree of divorce invalid if the will of the party seeking the decree was overborne by a genuine and reasonably held fear caused by present and continuing danger to life, limb or liberty arising from external circumstances for which that party was not responsible. I add that I think that 'danger to limb' means a serious danger to physical or mental health; and that 'danger' must include danger to at least a parent or child of the party.
   I turn to the question of natural justice. The starting point must be the decision of the Court of Appeal in Pemberton v Hughes. The headnote of that case reads as follows:

Sir Nathaniel Lindley MR said ([1899] 1 Ch at 790, 791):

385

Again I interpolate that, in my view, Sir Nathaniel Lindley MR in his second reference to 'substantial injustice' was not intending to widen the reference that he had earlier made where the reference to injustice was to the propriety of the proceedings. I say that because later Sir Nathaniel Lindley MR said ([1899] 1 Ch at 792):

Rigby LJ ([1899] 1 Ch at 794) agreed with Sir Nathaniel Lindley MR. Vaughan Williams LJ said ([1899] 1 Ch at 796, 797):

That case appears to me to be authority for the proposition that if this court is to refuse to recognise the validity of a foreign decree pronounced by a court of competent jurisdiction because of a violation of natural justice, the violation must relate to the proceedings themselves and not to the merits. It follows that this court will not declare such a decree invalid because the grounds for the decree nisi would not be grounds for divorce in this country; see also Bater v Bater (otherwise Lowe).
   However, in Formosa v Formosa, a Maltese domiciled in England had married an English girl in a registry office in England. Later the court of Malta where the husband had become domiciled declared that the marriage was a nullity because the husband was a Roman Catholic but had not been married in a Roman Catholic church. The Court of Appeal declined to recognise the validity of the Maltese decree. The grounds as stated by Lord Denning MR were ([1962] 3 All ER at 423, [1963] P at 269):

The grounds were stated by Donovan LJ in these terms ([1962] 3 All ER at 424, [1963] P at 271):

And the grounds as stated by Pearson LJ were ([1962] 3 All ER at 424, [1963] P at 271):

386

   In Lepre v Lepre, where the facts were substantially indistinguishable from those in Formosa v Formosa, Sir Jocelyn Simon P held that he was bound to follow that case and held that a Maltese decree of nullity, although on general jurisdictional grounds conclusive, should not be accorded recognition because it must be taken to offend intolerably against the concept of justice which prevails in our court. In the view of Sir Jocelyn Simon P, the crux of the decision of the Court of Appeal in Formosa's case was that it was ([1963] 2 All ER at 57, [1965] P at 64)-

I respectfully agree with him in thinking that that was the true ratio decidendi, although both Lord Denning MR and Donovan LJ had, at the very least, doubts whether in the eyes of English law the Maltese court was the court of competent jurisdiction.
   In my judgment, those cases do not establish that this court has a general discretion on grounds of natural justice to substitute its own view of the merits of a foreign decree for the view of the court of competent jurisdiction; for if that were so, they would be in conflict with Pemberton v Hughes and other decisions of the Court of Appeal. Finally, in Middleton v Middleton ([1966] 1 All ER 168 at 172, [1967] P 62 at 69), Cairns J summarised the relevant proposition thus:

I do not think that I need read further, either the facts or the judgment, in that case.
   Taking into consideration those authorities, I am of opinion that, whatever may be the bounds of the concept of natural or substantial injustice, this court is not entitled to consider the truth or falsity of the evidence of matrimonial offences on which a foreign decree was pronounced, or to substitute its own view as to the merits of the case for that of the foreign court, or to disregard the express grounds on which the foreign decree was based and decide that it was in reality based on some other ground or grounds. If that view be right, it is not necessary for me to consider387 the difficult question of what conclusion this court would reach if a foreign decree were expressed to be solely on racial or religious grounds.
   On the third question, it was very properly urged on me by counsel for the Queen's Proctor that the doctrine of comity required that this court should not lightly set at nought the decision of a foreign court, that s 77(4) of the Control Council Ordinance had in fact validated the 1939 decree, that the increasing tendency of the court was to eschew decisions which led to limping marriages, that a decision in favour of the wife in this case would cast doubt on the validity of many other similar decrees and that, as a matter of discretion, I should refuse the relief sought in the petition. In support of those submissions I was referred to Igra v Igra.
   Looking at the matter for the moment apart from authority, in my judgment, the answer to those arguments, which are of course formidable, is that the doctrine of comity should have no application where the foundation of the attack on the foreign decree does not lie in the conduct of the foreign proceedings, or even, if this be relevant, in the merits of the decision, but lies outside them as it does where duress overbears the will of the party instituting the proceedings. In any event, as appears from the declaration set out in R v Bottrill, ex parte Kuechenmeister ([1946] 1 All ER 635 at 636, [1947] KB 41 at 42), and accepted in that case by the Court of Appeal ([1946] 2 All ER 434 at 436, [1947] KB at 50), the Control Council Ordinance must be regarded as part of the internal law of a sovereign State; it is not part of the law of England. Dr Fritz Hellendall, who gave evidence as an expert in German law, expressed the extreme view that s 77(4) of the Control Council Ordinance had no real effect because to declare a decree of divorce invalid was not to restore a marriage and indeed a marriage could not be restored when one of the parties to it was dead. I do not accept that extreme view which seems to me to be mere sophistry. Nevertheless, in my opinion, the Landgericht Berlin has not taken the view that the Ordinance has validated the 1939 decree, otherwise its order of 25 June 1968, which I have read, would be stultified. By making that order the Landgericht has, so to speak, disclaimed in advance the benefit of comity. In this connection it is not wholly immaterial to note an extract from a decision of the Supreme Federal German Court, reported in 1955 in relation to the Federal Compensation Act 1953, which was in pari materia with and was extended by the Federal Compensation Act 1956. I quote^b:

Finally, a decision in favour of the wife in the present case would not create a limping marriage, and I should not think it right as a matter of discretion, if I were free to exercise discretion, to deny justice in the present case because of possible hardships in other cases, the facts of which are not before me and which may be wholly different from the facts here.
   I must now consider the decision in Igra v Igra. The headnote reads:

I should interpose that when the writer of the headnote states that 'it was probable that they were coloured throughout by racial bias', it seems to me that he may well have put it too high, and, as I shall state in a moment, the first holding in the headnote seems to me to be too widely expressed. The decision of Pearce J is set out in these terms ([1951] P at 411, 412):

It is to be observed from the final paragraph and from the references to our own rules and practice in matrimonial causes, that the decision was that the decree there under consideration did not offend against natural justice by reason of lack of service of notice of the proceedings. Strictly, therefore, the observations of Pearce J on the question of the Control Council Ordinance and the doctrine of comity were obiter dicta and Pearce J had not the benefit of argument against the validity of that decree such as I have had. They are, however, observations of great weight and I should follow them if I thought that the present case was indistinguishable. In my judgment, it is not. In Igra v Igra there was no allegation of duress; at the date of the decree the wife in that case was living with another man and it is clear that Pearce J thought (and I respectfully agree) that duress could not be established. In that case both parties were living and had acted on the decree of divorce and both parties were concerned to assert and uphold its validity. Lastly, in that case there was no order of the appropriate German court that the party concerned should obtain the decision of this court whether the marriage was still subsisting under English law. For those reasons, in my judgment, I am not precluded by that case from granting to the wife the relief which she seeks, if otherwise she establishes her case.
   I turn then to the facts, on which I heard, in addition to the evidence of the wife, evidence from Dr Hajek who had worked for about ten years in research at the Weiner Library in London, an institute of contemporary history specialising particularly in Nazism, Fascism and the persecution of Jews in pre-war Germany; and from Dr Hellendall, whom I have already mentioned, Doctor of Laws of the University of Cologne and a district court judge of Germany, who lived in Germany until 1934 and regularly visited there until 1936, and whose parents lived there until 1939. In addition I have read a number of statements on oath made by persons who were acquainted with the husband and the wife when they lived in Berlin.
   I will deal first with the general situation in Germany in the late 1930s and then with the facts particularly concerning the wife. It is plain on all the evidence and as a matter of history (and not really in dispute) that by 1938 the persecution of the Jews in Germany had reached a high degree of intensity. By the Nuremburg Laws of 1935 marriages between Aryans and Jews were prohibited; although, at first, existing marriages were not expressly affected, Aryans married to Jews were subject to discrimination. It is apparent from the case of Johann Julius Adolf Kšrner and Auguste Kšrner that by 1938 Aryans were under a severe pressure to divorce a Jewish spouse. There were instances of marriages being dissolved on the ground of 'mistake' where one party was Jewish and the other Aryan. There was an incident in 3901937 where the wife of one Ernest Platz was ordered to appear before the Race Office at Columbia House-that was the establishment in Berlin where persons were detained for interrogation by the Gestapo-and called on to obtain a divorce as she was a member of the German Volk married to a Jew. She rejected this request although she was threatened to be imprisoned in a concentration camp if she refused. In fact she said, as was established by further evidence of translation, and said with some heroism: 'My man stood by me when things were good, I want to stand by him when things are bad.' It is reported that she was subsequently released from Columbia House. I do not know whether she had a child or children or what happened to her afterwards. I was shown an extract from an official Nazi party propaganda document of 11 December 1938, which reads, as translated:

As a complement to that, a passage in a document published by Goering relating to the Nuremberg Laws, also in 1938, reads:

Against that background there was, in November 1938, a vast anti-Jewish pogrom when dozens of Jews were killed in a single night and tens of thousands of male Jews were sent to concentration camps within a few days. Although I have no evidence of a specific instance of an Aryan woman being killed or sent to a concentration camp specifically for refusing to divorce a Jewish husband, I accept Dr Hellendall's evidence that his Jewish sister married to an Aryan felt safe only because he was a citizen of the United States of America and otherwise would have been deadly afraid; and his evidence and that of Dr Hajek that there was a general atmosphere of lawlessness, in which those who were, or who were to be treated as, Jews were terrorised; that people were sent to concentration camps irrespective of the law for not doing as the Gestapo wished; and that an Aryan married to and living with a Jew could not enjoy a perfect sense of security but was in danger of loss of liberty or even of death.
   The wife gave evidence of her own personal life with the husband and her feelings and fears. Although she is of course some 30 years older then she was then, she appeared to me to be a gentle, sincere person, not perhaps cast in the heroic mould but not unduly timid. She gave her evidence fairly and apparently without exaggeration, and although, necessarily, her recollection was imperfect in some matters of detail, I accept her unreservedly as a witness of truth. Her evidence was in any event corroborated by statements of Dr Loeventall and of FrŠulein Piltz, Frau Schallbroch and Dr Hanowski, and I will try to summarise the effect of the whole.
   At the date of their marriage the husband was a teacher in a Jewish private school, the wife was an administrator in the office of a Red Cross institute that was first an old people's home and then a hospital. They lived in a rented flat, part of a block of flats, in Gerichtsstrasse in Berlin. After the persecution of the Jews started, the staff and pupils of the husband's school emigrated and the school was closed. Thereafter, the husband took a few non-Jewish private pupils at home. He was frequently visited by the Gestapo and partly because of those visits and partly from fears of contact with a Jew, those private pupils dwindled until the husband had no employment, no prospect of employment and no income. The husband, the wife and the daughter were wholly dependent on what the wife could earn. In, I think, 1937 or 1938 the representatives of the governors of the Red Cross institute told the wife that she would have to divorce the husband or give up her job and gave her a few months' notice to do the one or the other. If she had given up her job, she would not have been able to obtain another, except in a most menial capacity. Also, both before and after the husband left Germany, the wife feared that unless she divorced the husband she would have to give up her flat; if that happened, there would have391 been extreme difficulty in finding anywhere to live. Although there was no evidence of an express threat to evict her, having regard particularly to the evidence of Frau Schallbroch and FrŠulein Piltz, I believe that these fears were well founded. In the end, in 1938, the husband and the wife were advised that the husband should escape secretly from Germany; that there was no possibility of his taking the wife and the daughter with him, particularly as the daughter was delicate and ailing; and that thereafter the wife should obtain a divorce. The husband and the wife had never before discussed divorce and their marriage had throughout been wholly happy, but they agreed to this plan. In August 1938, the husband escaped by night with a rucksack, virtually no money and no papers. The wife hoped that there would be no war and that she would soon be able to join him. The wife waited until 1939, after she had heard indirectly that the husband was in England, and then found a non-Jewish lawyer to help her. The wife thought that the fact that the husband was Jewish was sufficient ground for divorce but the lawyer advised that there must be some personal grounds connected with the marriage and suggested desertion, refusal to provide an income to support the family and refusal of sexual intercourse. The so-called desertion was of course a matter of agreement between them; the failure to provide an income was solely because the husband was a Jew; they had not had sexual intercourse but had occupied separate rooms since the birth of the daughter as a matter of agreement, because they could not afford another child and contraception was frowned on by the Nazi government and was difficult; they did not know what else to do. So the divorce proceedings were instituted and proceeded to the 1939 decree. The wife described the general situation graphically during her cross-examination. She said:

She was also frightened of losing her job and of losing her flat. Once she obtained her divorce she was, in her own words: 'out of every conceivable danger'.
   Remembering the statement in H v H, to which I have referred, that the wife was one of a special class of persons who were in particular danger, it seems to me that the wife in this case, as the Aryan wife of an escaped Jewish husband, was part of a particular class of persons who were in particular danger. I ask myself: could anyone in Berlin in 1938 and 1939 have truthfully made this statement: 'I am the Aryan wife of an escaped Jewish husband; I am threatened with the loss of my job and I am likely to lose my home. If I lose my job, I shall have no money. I have a delicate and ailing daughter, but I am in no real danger to life, limb or liberty'? In my view no one in the position of the wife in this case could have truthfully made that statement. The position of the daughter was the subject-matter of a statement agreed between counsel and their respective advisers, which I will read:

392

The events after October 1939 are relevant only to the extent that they confirm or cast doubt on events and apprehensions before that date and I can deal with them shortly. The wife brought the daughter to England in 1949. The husband was partially blind then and soon became totally blind. The husband was in a Jewish home. Subsequently, when he received his pension under the Federal Compensation law, he moved to a private hostel. The wife obtained work at Nottingham where the daughter was educated but she visited the husband as far as money would permit. Later the wife lived near the husband in London and worked there; she could not live with the husband and look after him because she had to work during the day to supplement the family income. He went out to stay with her at weekends and she constantly visited him and provided meals for him. After the husband's death, the wife obtained probate of his will in common form in which she is described as 'widow and the relict of deceased'; she was not described as his wife in his will. She also obtained a grant of limited common partial probate through the German embassy for exclusive use in compensation proceedings, in which she is described as 'his wife'. I have seen a transcript of the proceedings leading to that grant in which the wife stated, inter alia:

Counsel for the wife placed some reliance on these documents, but since they both depended on ex parte statements of the wife, without any argument or inter partes judicial investigation, I do not derive any help from them. From the time she came to England until the husband's death the wife regarded herself, and was regarded by others, as the wife of the husband. Asked whether she and her husband had contemplated remarriage, the wife said:

They were certainly comforted in that opinion by the attitude of the responsible authority to which the existence of the 1939 decree was disclosed when the wife's application for United Kingdom citizenship was granted.
   On the whole of the evidence I find as facts: that in 1939 the wife had a general fear of danger from the attentions of the Gestapo as the persecution of Jews, and those who, like herself, were treated as Jews, intensified, and on that account she feared for her liberty and her health; that she had specific fears of losing her job and her flat; and that if either of those losses occurred she feared serious deterioration of her health and that of her daughter, and that they might even not survive; that the dangers that the wife feared were serious and continuously existing; and in particular that the danger of suffering at the hands of the Nazi authorities would be intensified if the wife became unemployed and/or homeless; that the wife was not herself responsible for these dangers; that her fears were genuine and reasonably held and that she would not have sought to obtain the 1939 decree if her will had not been overborne by those fears. I should add that if I had taken a different view of the law, I should have found as a fact that the stated grounds on which the 1939 decree was sought were not true but were a sham.
   My conclusion is that the wife has established her case based on duress in law and on the facts and I propose to make the declarations asked in paras 1, 2 and 3 of the prayer in the petition.

Solicitors: Hellendall & Co (for the wife); Queen's Proctor.