Public Policy and the Purpose of Getting Married
| Date | 01 November 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00331.x |
| Author | O. M. Stone |
| Published date | 01 November 1955 |
Nov.
1965
NOTES
OF
CASES
607
where the English court assumes jurisdiction
in
proceedings by
a
wife who is not domiciled here, the law applicable shall be that
which would be applicable
if
both parties were domiciled here.
The provisions of the Matrimonial Causes Act,
1950,
s.
18
(1)
and
(2),
were introduced by Parliament in
1937
and
1949,
respectively,
to mitigate the intolerable hardship caused to wives by the common
law rules limiting jurisdiction in matrimonial causes by the artificial
concept of domicile.
If
the judges are now to cease extending the
application of these discredited rules,
it
is reasonable that they
should discontinue also the insistence upon applying the law
of
the artificial domicile.
0.
1\11.
STONE.
PUBLIC
POLICY
AND
THE
PURPOSE
OF
GETTING
MARRIED
Silver
v.
Silver
exemplifies the problems which arise where
ti
marriage is entered into, not because the parties wish,
or
intend,
to become in fact husband and wife, but because one
or
other
covets some incidental advantage which the law attributes
to
a
spouse.
In
1919,
a German woman became attached to an Englishman
whom she met in Germany.
He
was already married and could
not obtain a divorce. They lived together in England and
Germany and in
1925,
with the sole object of being able to continue
this cohabitation uninterruptedly in England, the woman went
through a ceremony of marriage with his stepbrother, also an
Englishman. By this ceremony, she automatically acquired
British nationality by marriage,2 and with
it
the right to live in
this country where and for as long as she chose. She continued
to
live with her lover here until he died in
1948.
During this
period the only occasion on which she met her husband was when
they visited the Home Office together some six months after
their marriage, to declare falsely that they had cohabited for six
months.
After her lover's death, the woman met a German man whom
she wished to marry, and traced her husband to discuss the
possibility of a divorce. Only in
1954
did she discover that since
1940
he had been living with another woman, by whom he had
had three children. She then petitioned for a declaration of
nullity of the marriage in
1925,
on grounds of lack of consent,
and apparently relied on
H.
V.
H.'
Collingwood
J.
distinguished
H.
v.
H.,
where the spurious marriage had been entered into because
the woman feared what might otherwise happen to her in Hungary,
I
[1955]
1
W.L.R.
728;
[1955]
2
All
E.R.
614.
2
Under the British Nationality
and
Status
of
Aliens Act, 1914,
8.
10.
3
[1954]
P.
258.
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