Starkowski v HM Attorney General (Starkowski and Others Cited)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL |
| Judgment Date | 30 July 1952 |
| Judgment citation (vLex) | [1952] EWCA Civ J0730-2 |
| Court | Court of Appeal |
| Date | 30 July 1952 |
[1952] EWCA Civ J0730-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
LORD JUSTICE SOMERVELL
LORD JUSTICE DENNING and
LORD JUSTICE ROMER.
MR. H. HEATHCOTE-WILLIAMS, Q.C., and MR. GEORGE DOBRY (instructed by Messrs. George & George) appeared on behalf of the Appellant (Petitioner) and the first party cited.
MR. W. LATEY, Q.C., and MR. G. H. CRISPIN (instructed by Messrs, Culross & Trelawny) appeared on behalf of the second and third named parties.
MR. COLIN DUNCAN (instructed by the Treasury Solicitor) appeared on behalf of Her Majesty's Attorney General.
The Judgment I am about to read is the Judgment of the Court.
A child born on 27th March, 1949, suing by his motheras next friend petitions for a declaration of legitimacy under the Legitimacy Act 1926 and Section 17 of the Matrimonial Causes Act 1950. His father and mother went through a ceremony of marriage on 11th February, 1950. If that marriage was valid the petition succeeds. Its validity is challenged on behalf of a previous child of the mother and the father of that child who allege that on the 11th February 1950, the mother was the wife of that father. The learned Judge has held that the marriage of February, 1950, was invalid and the Petitioner appeals.
The mother, Henrica Juszczkiewcz, and Ryszard Urbanski were Polish Nationals domiciled and resident in Poland until the autumn of 1944, when they went to Kitzbuhl in Austria. Henrica was pregnant by Urbanski and they were anxious to marry. They were Roman Catholics and wished to be married by a priest. Prior to 1938 marriage by a priest according to the rites of the Roman Catholic church constituted a valid marriage in Austria. In 1938 the German marriage law became part of the law of Austria under which a valid marriage could only be concluded before the civil authorities. It could no doubt be followed by a religious ceremony but it was an offence for a priest to purport to celebrate a marriage between persons who had not been married civilly. On 27th April, 1945, Austria was liberated and this part of Austria was occupied by American troops. There was a good deal of confusion as to the law. Some at any rate, according to the evidence, thought that the German marriage law which had been imposed by the Mazis in 1938 automatically went with the liberation, reviving the status quo ante. On 19th May, 1945, they went through a ceremony of marriage at the parish church at Kitzbuhl according to the rites of the Roman Catholic faith. The German marriage law was still in force and that ceremony did not, therefore, constitute a valid marriage according to Austrian law.
A translation of the certificate is before us which gives the details as to the marriage according to Roman Catholic rites. On 12th June, Barbara, the third party cited, was born. On 16th June the birth was registered by the midwife with the civil authorities, the name of the father being left blank and the mother's maiden name being given.
On 26th June, the Provisional Government of Austria enacted Order 31 which itself indicates that there had been the confusion to which we have referred and that other priests had conducted ceremonies no doubt believing them to be lawful. The relevant paragraphs are as follows: ""(1) Marriages which were solemnized during the period from April 1, 1945, to the coming into force of this law before incompetent lay authorities or before ministers of a recognized church or religious community have the effect of a marriage solemnized at a register office in accordance with sections 15 et seq, of the Marriage Law of July 6, 1938, as from the day of solemnization, as soon as they have been registered in the family book kept by the register office". (2) "The offices in which such marriages have been solemnized shall forward without delay to the register office which would have been competent to solemnize the marriage at the time of its solemnization in respect of the bridegroom, true copies of the entries made in their marriage register showing exactly the words, figures and letters". (S.5(1) "The register offices are to enter in their register the occurrences affecting personal status communicated to them in accordance with sections 1 and 4'". On the evidence of the three Austrian lawyers and as found by the learned Judge, the marriages covered by the Order were validated as from the day of solemnization when registration took place. It had been suggested that the marriages were validated as from the date when the Order came into force. It is, however, clear that no act of the parties was required for, or couldprevent, validation. The Order clearly contemplated that registration should take place without delay. There was a long delay in the present case as will be seen. It was not really suggested to the lawyers that the absence of delay was a condition precedent and they all agreed that the marriage became a valid marriage under Austrian law as from the date of solemnization when it was registered on 18th July, 1949.
There was no direct evidence as to the cause of the delay but one of the lawyers suggested that Kitzbuhl being a small and remote place, the priest in charge might not have heard of the Order. On 15th...
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