Preston (orse. Putynski) v Preston (orse. Putynska) (orse. Basinska)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE RUSSELL |
| Judgment Date | 04 April 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0404-1 |
| Court | Court of Appeal |
| Date | 04 April 1963 |
[1963] EWCA Civ J0404-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod.
Lord Justice Donovan and
Lord Justice Russell
MR R.L. BAYNE POWELL (instructed by Messrs Cooper, Bake, Fettes Roche & Wade) appeared as Counsel on behalf of the Appellant (Plaintiff).
MR GEORGE DOBRY (instructed by Messrs Martin, Nicholson, Hortin & Nash) appeared as Counsel on behalf of the Respondent (Defendant).
This appeal is from a decision of Mr Justice Cairns that a marriage between the parties in this case, (whom I will call the "husband" and "wife"), celebrated in Germany on the 3rd June, 1945, was a valid marriage. The parties are of Polish origin. The husband was called Putynski, but in 1953 he became a naturalised Englishman and changed his name to Preston. He is now domiciled in England. On the 19th October, 1960, the husband filed a petition for a declaration that the marriage was null and void as it was not celebratedin accordance with the lex loci celebration is. The wife's case is that the marriage was an English common law marriage, and therefore valid. She said further that the marriage was valid according to Polish law. That submission was not pressed on behalf of the wife, and indeed, in my judgment, there is no substance in it. It was not in issue that the marriage was not in accordance with German civil law, by which the only valid marriage is one performed in the presence of a civil registrar. For the sake of completeness, I should add that the wife in her Answer alleged cruelty and adultery on the part of the husband, and cross-prayed for a decree nisi on those grounds. On the 3rd July, 1961, Mr Justice Phillimore directed a trial of the issue of the validity of the marriage, which is the issue with which the Court is now concerned.
The marriage was performed in a camp at Nordheim by a Roman Catholic priest. It is not in issue that he was an episcopally ordained priest. Nor is it questioned that the parties were capable of contracting a valid marriage, and believed they had done so. There were no children, but the parties cohabited as husband and wife for many years.
The nature of the camp and the status of the husband at the time of the marriage are relevant questions. The husband was born in Warsaw in February, 1924, and was domiciled in Poland. After the war broke out he joined the Polish underground movement, which later became the Polish Home Army and was recognised as a belligerent army by His Majesty's Government in 1944. He took the army oath in 1942, and in 1943 went to an officers' training school and became a Cadet Corporal, which entitled him to wear the uniform and badges of his rank. He took part on the 1st August, 1944" in the Polish rising against the Germans. He was at legjonowo, where the rising failed after two weeks. He then went to Praga, but was evacuated from there by the Germans, and came eventually to Poznan, in German-occupied Poland. He worked in a laundry there and metthe wife, who was born in Berlin of Polish parents but had always lived in Poland from the age of two and was domiciled there. The parties became attached to one another and wanted to marry, but there were difficulties, although a priest gave them his blessing before they left Poznan. According to the finding of the learned Judge, they left Poznan to escape the Russian advance, and went to Dessau and then to Leipzig, Although the parties were not then married they appear to have been behaving as a married couple. In April or May, 1945, the Americans occupied Leipzig, and, about the end of May, the parties got permission to go to Nordheim. This is the description of the camp given by the learned Judges "This was a military camp, set up by the Americans but shortly afterwards taken over by the British for the reception of Polish military personnel. The Commandant was a Polish officer and the purpose of the camp was to train men and women who had served in the Polish forces to fit them for service in Germany or Italy or elsewhere. In May, 1945, the organisation of the camp was rudimentary and it was some time before regular drill etc., began; but the camp had a military purpose and was not a mere reception centre for displaced persons".
Evidence of the conditions in the camp was given by Mrs Osuchowska, the Commandant of the women's block. Mrs Osuchowska had been a prisoner of war in German hands. She said the wife was treated as a single woman and was housed in her block, where the husband was allowed to visit her, but only as a finance. The learned Judge found this to be so, and found too that the parties did not pass as husband and wife when they first came to the camp. Mrs Osuchowska said, too, that anyone who wished to leave the camp or to be away for a night had to give notice, but this was because of rations. There was some elementary military training in the camp, and this developed as time went on. It appear, too, that the camp was in charge of a Polish military officer, although there was no evidence of hisplace in the chain of command of the Polish Army. The Judge came to the conclusion that the purpose of the camp was to train men and women who had served in the Polish forces to fit them for service in Germany or Italy or elsewhere. He concluded that it was a military camp and not a camp for displaced persons, as was the conclusion of Mr Justice Sachs in Kochatmki (a conclusion arrived at on different evidence). It may not be important to be able to describe the camp exactly. There is little evidence to show what discipline, if any, was exercised over" the inmates of the camp. There is, however, in my judgment, enough evidence to show that the camp was at least a part of the organisation of the Allied Armed Forces, that its inmates were associated with, if not members of, those forces, and that preparations were being made to integrate them more closely with one or another of the Allied armies.
A further question to be decided is the status of the husband at the time of the marriage. The Judge concluded that he was a member of the Polish Armed Forces. He said this: "In my view the husband was at the material time a member of the Polish forces. I base this conclusion on three factors: (1) the evidence of General Pelczynski, former Chief of Staff to the Polish Commander-in-Chief, as to his technical status; (2) evidence of Mrs Osuchowska, Commandant of a women's block at the camp, that it was always a military camp; (5) the husband's unquestioned wearing of uniform with badges of rank in the camp". According to the evidence of the General most of the members of the Home Army who took part in the Warsaw rising were taken prisoner by the Germans, but some mixed with the civilian population. He said that the Home Army was part of the Polish forces commanded by the Polish Commander-in-Chief from London. It would appear, therefore, there can be no doubt that the husband was at one time a member of the Polish forces. On the 19th January, 1945, however, the Home Army was dissolved, and the question arises whether the husband then ceased to be asoldier. In re-examination the General said this: "(Q) General, did this dissolution apply to all soldiers who were then in Poland, in Germany, and elsewhere? (A) With the exception of those who have been staying living in Poland. (Q) Did it apply to those who were in Poland or to those who were outside Poland? (A) The Order dealt with dissolution of the Home Army as such and could be applied only to those soldiers who have been in Poland under the commandment of Polish Commanders and obviously could not be applied to those soldiers who have been prisoners of war, and therefore outside the power and scope of the Polish Commanders, or could not be applied to those soldiers who were deported to Germany and were under German power and in the hands of the Germans. (Q) Pursuant to that Order would any discharge formalities have to be gone through? (A) What do you mean by formalities in this case? (Q) Would anybody have to tell a soldier, 'You are now discharged'? (A) Yes. (Q) Then two more questions, General. You mentioned that during the rising some soldiers were accepted without swearing-in? (A) Yes. (Q) Having regard to the records, can you tell my Lord whether Corporal Putynski was accepted to the Army without swearing-in? (A) On the contrary. Corporal Putynski has been accepted to the Army and has made his Oath. He has been sworn-in. (Q) In Germany, you were asked about this, there were four Zones - British, American, French and Russian. In which Zone did the Polish troops serve as an occupying force as you said? (A) In the British Zone". Then learned Counsel said: "I have no further questions". Then the learned Judge saidi "I have one question I want to ask you. I want you to consider the case of a man who had been a sworn member of the Home Army, who after the Warsaw rising had been removed by the Germans to Poznan, and who after that had been able to go himself to Dessau, and then to Leipzig, and then to Nordheim. If anybody had asked such a man after the 19th January, 1945, 'Are you at present a member of the Polish Home Army?', what would the true answer have been?(The Witness): According to my opinion the true answer of such a man should have been, ' lee, I am a member of the Home Army', and that is why it is because when being on German territory such a man could not have been officially informed about the Order of 19th January, 1945. He could not be informed or notified, (Mr Justice Cairns): Yes, thank you, General."
The second reason given by the Judge, that the camp was a military camp, supports the General's evidence in that it seemed unlikely that the husband (and consequently the wife) would have been admitted to the camp if he had not been regarded as a member of the Polish Army.
The Judge...
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Lin, Re, (1992) 137 A.R. 1 (QB)
...122 (Vic. Sup. Ct.), refd to. [para. 17]. Taczanowska v. Taczanowska, [1957] 2 All E.R. 563, refd to. [para. 17]. Preston v. Preston, [1963] 2 All E.R. 405 (C.A.), refd to. [para. Caterall v. Sweetman, [1845] 1 Rob. Ecc. 304; 163 E.R. 1047, refd to. [para. 19]. Wylie v. Paton, [1930] 1 W.W.......