Taczanowska (orse. Roth) v Taczanowski
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE PARKER,LORD JUSTICE ORMEROD |
| Judgment Date | 06 June 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0606-5 |
| Date | 06 June 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0606-5
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Parker And
Lord Justice Ormerod.
Mr. HAROLD SHOWN, Q.C. and Mr. N.H. CURTIS-RALEIGH (instructed by Messrs, Lawrence & Co.) appeared for the Appellant husband.
The Respondent wife Petitioner was not represented and did not appear.
Mr. ROGER ORMROD appeared on behalf of the Queen's Proctor as amicus curise.
: This is an appeal from an Order of Mr. Justice Karsinaki, who, on October 8th, 1956, pronounoed a decree of nullity of marriage upon the Petition of Krystyna Roth, spinster, against Stanislaw Taczanowski. The Successful Petitioner has not appeared or been represented to support the Judgment under appeal, but the Court has had the benefit of argument by Counsel on behalf of the Queen's Proctor as amicus curise.
The parties went through a form of marriage in the Parish Chureh of the Resurrectionists in Rome on the 16th July, 1946. They were Polish nationals, the Petitioner being a civilian refugee who had been staying in a convent in Rome, and the Respondent an officer in the Polish Second Corps, then serving in Italy in the course of his military duties. The parties lived together until 1950, having from the early part of 1947 lived in England, where it is pleaded that they Mere domiciled at the time of the institution of these proceedings on June 15th, 1955.
The ceremony was performed by a Roman Catholic priest then serving as a Polish Army Chaplain, and there is no question but that the parties intended to enter into marriage, which was followed by the birth of a child who was born in November, 1947.
The Petitioner alleged that the ceremony was null and void because in form it did not comply with the lex leci, namely, Italian law. She relied upon the rule established by the decision of Mr Edward Simpson, sitting in the Consistory Court of London, in ( Sorimshire v. Sorimshire 2 Hagg. Con. 395; 161 E.R., 782). The principle is there clearly stated that in administering the law of this country the rights of the parties are to be determined by our law which applies foreign law in such a case. since by entering into the marriage contract in another country the parties subject themselves to have the validity of the contract determined by the laws of that country.
In ( Middleton v. Jasverin 2 Hagg. Con. 437; 161 E.R. 797) Sir William Wynne referred to this case in these words)) "I also remember to have heard that that Judgment was founded on great deliberation, and that Lord Chancellor Hardwioke was consulted on it."
Lord Dunedin giving his Advice in the Privy Council in ( Berthiause v. Dastous 1930 A.G. 79) at page 83 said: "If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if condueted in the place of the parties' domicile would be a good marriage."
Thus, so far as forms and ceremonies are concerned, the general rule is that where parties contract marriage in a country other than their own, they are taken to subject themselves to the law of that other country.
The Petitioner contended that the law of Italy regulating form had not been complied with.
It was conceded that the municipal law of Italy had not been followed in that Articles 143, 144, and 145 of the Civil Code were not read over to the parties by the officiating priest and in that the ceremony was not registered in the Civil Register of Marriage as required by Italian law. Italian law would, however, according to Article 226 of the General Provisions preliminary to the Italian Civil Code, recognise the validity of the marriage if it was valid by Polish law, since that was at the material date the national law of both spouses.
By the old law of Poland prior to the establishment of the Lublin Government the marriage would have been valid. The relevant law which concerned the ecclesiastical organisation of the Army clergy was passed on the 25th November, 1926, pursuant to a concordat between the Holy See and the Republic of Poland and extended beyond the limits of the Republic to places where there were Polish troops and Chaplains.
Under the heading "Jurisdiction of the Army Clergy". point 10 reads: "The Field Bishop shall exercise Jurisdiction is respect of chaplains, all military persons and their families of catholic denomination in the land Forces and Navy of the Republic of Poland."
Point 13: "With regard to the administering of the Blessed Sacrament of Marriage, the Chaplain who has parish Jurisdiction shell (a) publish the banns of the carriages of the military persons and their families (under his care); (b) solemnise legal and valid marriages of military persons and their families within his parochial Jurisdiction."
Under the heading of "Keeping of Parish Banisters", point 20 reads: "Army Chaplains shall discharge the duties of 'Civil Registrars' with regard to military persons and their families according to the regulations trade by the Field Bishop's Curis."
On July 5th, 1945, His Majesty's Government recognised the new Government of Poland, the so-called Lublin Government, and Dr Nissan, an Italian lawyer who gave evidence, stated that in his opinion the same recognition had been accorded by the Government of Italy before the carriage of the parties.
On the 25th September, 1945, the Lublin Government Introduced a new matrimonial law with effect from January 1st, 1946, which provided that only a marriage contracted before an official of civil status should be valid in the eyes of the State.
By Article 1 of the Introductory Provisions It was provided that all previous provisions dealt with by the National law should cease to have effect and Point 20 of the Statute of the 28th November, 1926 (supra) was expressly repealed.
By a note dated the 14th July, 1946, the Polish Ministry of Foreign Affaire stated that as from that date the Polish Forces abroad could no longer be considered units of the Polish Army.
I agree with the reasoning of the learned Judge and with his conclusion, having heard evidence from eminent Polish lawyers, when he found, notwithstanding as ingenious theory put forward by Dr Blook in support of the marriage, that there was no escape from the finding that by Polish law the ceremony of marriage in question was invalid. Professor Kuratowski, whose evidence was accepted, was emphatically of this opinion.
This conclusion of fact is not affected by a doubt expressed by an Italian lawyer, who, under cross-examination, doubted whether the Italian Courts would recognise a law passed by May of unilateral repudiation of a concordat with the Holy See.
Reliance was plated on section 22 of the Foreign Marriage Act, 1892, in order to save the marriage. I cannot, however, agree that this section avails the Appellant. The section reads as follows: "It is hereby declared that all marriages solemnised within the British lines by any chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad, shall be as valid in law as if the same had been solemnised within the united Kingdom, with due observance of all forms required by law."
It Is true that section 12 of the 1893 Act is not limited in terms to marriages between parties of whom at least one is a British subject. It re-enacted 4 George IV, C. 91, section 1, which reads: "Be it declared and enacted, and It is hereby declared and enacted by the King's most Excellent Majesty. by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same. That all such Marriages as aforesaid shall be deemed to be as valid in law as if the same had been solemnised within His Majesty's Dominions, with a due Observance of all Forms required by Law." The preamble is: "Whereas it is expedient to relive the Minds of all His Majesty's Subjects from any Doubt concerning the Validity of Marriages selomnised by a Minister of the Church of England in the Chapel or House of any British Embassedar or Minister residing within the Country to the Court of which he is accredited, or in the Chapel belonging to any British Factory abroad, or in the House of any British Subject residing at such Factory, as well as from any Possibility of Doubt concerning the Validity of Marriages solemnised within the British Lines by any Chaplain or Officer, or other Person officiating under the Orders of the Commanding Officer of a British Army serving abroad."
That Statute is on the face of it of similar general application. In my opinion the construction of the section is not limited by the preamble to marriages contracted by spouses of whom one was a British subject.
Professor Dicey was of this opinion See 2nd Edition page 623), although other learned writers have taken a different view. This construction is I think supported by contrasting the language of 4 George IV, C. 91, with an earlier Statute passed in the same reign, 4 George IV, C. 67, dealing with marriages of British subjects in the Factory of St. Petersburgh. There the reference is to marriages of British subjects.
Further, it would seem anomalous that while aliens may serve in the British Forces, they should not have the privileges conferred by the section.
The difficulty lies in the words "chaplain or officer or other person officiating under the orders of the commanding officer of a British Army serving abroad."
To my mind upon the evidence the Polish 2nd Corps was an independent command and the chaplain who performed the ceremony between the parties cannot truly be...
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