Preston (Putynski) v Preston (Putynska) (Basinska)
| Jurisdiction | England & Wales |
| Judgment Date | 04 April 1963 |
| Date | 04 April 1963 |
| Court | Court of Appeal |
(Cairns J.)
(Ormerod, Donovan and Russell L.JJ.)
Warfare on land Occupation of enemy territory Nature and effects of Applicability of local law to members of occupying forces Local law relating to formalities of marriage Applicability to member of forces associated with and under control of occupying forces Status of Polish Army in Germany in 1945 Whether Polish forces were in belligerent occupation of Germany The law of England.
The Facts.This was a separate trial of an issue in proceedings on a petition for a decree of nullity. The issue tried was the validity of the marriage of the parties.
The parties, both of whom were of Polish origin, went through a ceremony of marriage on 3 June 1945 at a military camp at Northeim, in Germany. At that time the husband was a member of the Polish forces. The camp, in which both parties were living, was for the reception of Polish military personnel. Its inhabitants were a separate community, not mingling freely with the German population, and were under the control of the camp commandant. The marriage ceremony was performed by the camp chaplain, who held Polish military rank and had been duly appointed under the authority of the field bishop. The ceremony was void by German law because no civil registrar was present. As to Polish law, the evidence of an expert was that for Poles marrying abroad a form of marriage in accordance with the ceremony appropriate to that province of Poland where either party was permanently resident was valid. The wife's permanent residence was in the central province of Poland, where a religious ceremony was sufficient. The husband's permanent residence was in the western province, where the marriage law differed from that of the central province. As a result of a questionnaire addressed by the Court to the Foreign Office and the War Office, it was established that at the date of the marriage ceremony the husband was not a member of the forces in belligerent occupation of Germany, but that he was associated with the occupying forces in that he was a serving soldier in a camp under Allied control, the Allies being in belligerent occupation of Germany.
The parties lived together until 1959, by which time they had acquired a domicile in England.
On 19 October 1960, the husband petitioned for a decree that the marriage was null and void on the ground that it was not celebrated in accordance with German law and was not celebrated in such circumstances as to make it valid despite non-compliance with that law. The wife submitted that the marriage was valid as an English common law marriage. She cross-petitioned for divorce.
The Court ordered that the validity of the marriage be tried as an issue, and decided that certain information must be sought from the Secretary of State for Foreign Affairs and from the Secretary of State for War. The following were the questions put and the answers of the Foreign Office:
The War Office, upon inquiry being made of them, answered as follows:
Held (by the Probate Division of the High Court): that the marriage was valid by English common law. The exception to the principle that the formal validity of a marriage is to be determined by the lex loci celebrationis, which exists in the case of members of armed forces in belligerent occupation of the place of celebration, applies also to a member of forces associated with and serving under the control of the occupying force. The husband had been a member of an associated force at the time of the marriage ceremony.
The Court said:
Without prejudice to the issue that I have to try I shall refer to the parties as the husband and the wife. [The Court reviewed the evidence relating to the earlier life of the husband, prior to the marriage ceremony, and continued:]
In April or May, 1945, the Americans arrived in Leipzig and towards the end of May the parties obtained permission to go further west to a camp at Northeim. 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 organization 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. The husband was received there because he had been a member of the Polish Home Army and in Polish contemplation was still a Polish soldier, because although the Home Army had been disbanded the husband had not had notice thereof. The husband arrived at the camp in civilian clothes but soon obtained in some way a uniform of sorts, and attached to it the insignia of his old rank of cadet corporal. 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) the evidence of Miss Osuchowska, commandant of a women's block at the camp, that it was always a military camp; (3) the husband's unquestioned wearing of uniform with badges of rank in the camp.
It is not at all clear how or in what capacity the wife came to be accepted at the camp. The husband says that there were plenty of civilians there, but I disbelieve this because of Miss Osuchowska's evidence. The husband also says that the wife passed for his wife from arrival and on this matter the wife's evidence was so contradictory that I give no weight to it. They may at first have said that they were married, but again I accept the evidence of Miss Osuchowska; the wife was treated as a single woman, was housed with other single women in her block, and the husband was allowed to visit her as a fianc and not as a husband. It follows from Miss Osuchowska's evidence that they arrived late in May, 1945, did not live outside the camp before marriage, and were not, as the husband alleged, married with any secrecy.
The wedding was on June 3 in the open air and was performed by Father Paraszewski, the camp chaplain, who held Polish military rank and had been duly appointed under the authority of the field bishop. He performed many similar ceremonies in the camp and they were ceremonies which would have been valid marriages if celebrated in Poland. The parties regarded the ceremony as a valid legal marriage at all times up to 1959.
I am satisfied that the people in this camp were a separate community, not mingling freely with the German population. They were under the control of the camp commandant and were not allowed to sleep outside except by leave of the camp authorities, given only in special circumstances. They could, however, have some contact with the Germans; the parties were able to go out and have a wedding photograph taken at a photographer's in the town and the wife was able, by leave, after marriage, to obtain lodgings in a German house intended to be shared with the husband. The husband said that he and others engaged in considerable black market transactions with the German inhabitants, but I am not satisfied that this took place on any extensive scale. The wife said that the husband went out to steal a German car and was put in a German prison for a night, but I am not satisfied that this happened. The husband said that he had no hatred for the Germans and there is no evidence that he or the other occupants of the camp had any strong feelings of destestation towards the Germans or their institutionsthe time being after the collapse of the Hitler rgime. On the other hand, there is no evidence of any association with Germans other than such dealings as individual occupants of the camp might find convenient for such purposes as obtaining a matrimonial home or buying photographs, clothing or a motor-cycle, or other articles not to be had within the camp.
The history from the time of the marriage can be briefly related. The husband (probably during June) obtained a motor-cycle. I am not sufficiently satisfied by the evidence of either party to make any positive findings as to how he obtained it except that he bought it from...
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