NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00262.x |
| Published date | 01 March 1954 |
| Date | 01 March 1954 |
NOTES
OF
CASES
MARIAGE
DE
CONVENANCE
“
IF
the present case were devoid of the element of fear,
I
should
be compelled to find that the parties to the present suit intended
that the petitioner should become the wife of the respondent,” said
Karminski
J.
in
H.
(orse.
D.)
v.
H.l
But in the event he held void
an unconsummated marriage which had been contracted in
1949
in
Communist-dominated Budapest between a Hungarian girl
of
eighteen and a French citizen some six months her junior, although
the marriage was valid as to form by Hungarian law.
The woman gave evidence that she went through the ceremony
solely to obtain a French passport, which would enable her to leave
Hungary, where she went in fear for her liberty
or
chastity under
the Communist rbgime.
It
was the understanding of both parties
that the marriage was one of convenience only
;
they never intended
to live together and they never
did
live together. Two months
after the ceremony the wife, having obtained her French pass-
port, left Hungary; the husband also left and returned to France.
Letters he wrote between
1951
and
1953
made
it
clear that he
regarded his marriage was at an end and was anxious to have
it
annulled
or
dissolved.
Jurisdiction appears to have been assumed
on
the basis of the
petitioner’s domicile. The Attorney-General and the Queen’s
Proctor having agreed with counsel for the petitioner that either
English
or
Hungarian law was applicable, Karminski
J.
decided
that the choice between them
on
the question of duress was
“
almost
academic
”
and proceeded to apply a version of the English law of
duress
for
which there appears to be
no
precedent.
It
may be useful to consider how far the decision might have
been the same
if
the circumstances up to the time
of
the end of the
marriage ceremony had been unchanged, but thereafter the parties
had changed their minds and lived together, and one
of
them sub-
sequently opposed a declaration
of
nullity. Could the husband,
€or
example, in such circumstances have avoided the marriage and
rid himself of the liability to support the woman and any children
of
the union? The general theory
of
the law is that the validity
of a ceremony
of
marriage is not affected by any subsequent event.
An exception appears in the form of decree of nullity for wilful
refusal to consummate the marriage but that this exception is
apparent only was recently emphasised again by Lord Goddard
C.J.
in
R.
v.
Algar.2
It
is also of the essence
of
the marriage relation
1
[1953] 3
W.L.R.
849.
2
[1953]
2
All
E.R.
1381,
1384.
See
also
Re
Eaaes
[1940]
Ch.
109.
149
VOL.
17
10
150
THE MODERN LAW REVIEW
VOL.
17
that, once it is validly established, the parties cannot by agreement
effect its annulment
or
dissolution.
None of the authorities cited in the case appears very relevant
or
helpful to the decision, since admittedly there was no precedent
for the annulment of a marriage on the grounds of fear
or
duress
emanating other than from the other party. The case was put of
the effect of an announcement by the Hungarian authorities
before the ceremony that all single women would be put into
brothels, but such a case seems not parallel, since it postulates the
threat of some definite action. Indeed all the previous cases on
duress appear to have involved the threat of specific action, and
a
vague and general fear of unpleasant consequences appears never
to have been successfully pleaded before. In this case, on the
other hand, the evidence was that the girl had survived the Soviet
occupation and some years of the Communist r6gime without loss
of chastity
or
liberty, and no evidence was adduced of
a
definite
threat to either. Again, where does one draw the line? Fear
of
social obloquy would scarcely be sufficient to invalidate a marriage
celebrated under the threat of
it,
nor
fear that the woman’s child
will be born illegitimate. Would fears for liberty alone suffice?
Suppose a man marries a woman to prevent her testifying against
him on some criminal charge, can he later avoid the marriage
?
In sum,
it
would seem that this is the hard case that makes bad
law. The girl preferred marrying a foreigner, on an understanding
that there would be no subsequent cohabitation, to remaining in
Hungary. There seems no compelling reason why, once
in comparative safety, she should be permitted, having escaped
the greater evil, to avoid the lesser.
It
may, however, be rele-
vant that, assuming the validity of a marriage, English law insists
upon a matrimonial offence before granting dissolution. Two
other women gave evidence in the case that they had in similar
circumstances contracted similar marriages
;
both of these had
sub-
sequently been dissolved. The report does not specify where they
had been dissolved
or
whether any question of collusion might arise,
and it may well
be
that consideration of this difficulty coloured the
decision.
It
may, perhaps, be hoped that the judges will in future more
severely limit the warping effects
on
the English law of marriage
of
conditions in the iron curtain countries.
Now
that some of the
dust has settled, relief may perhaps be expressed that the majority
of the Court of Appeal held that the Soviet marriages in
Kenward
v.
Kenward
were invalid on the ground of defect of
form,
and
that the sweeping theories
of
mistake adumbrated in that case
have not found their way into English marriage law.
So
be it.
0.
M.
STONE.
3
[1951]
P.
124.
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