Thynne v Thynne

JurisdictionEngland & Wales
Judgment Date27 July 1955
Judgment citation (vLex)[1955] EWCA Civ J0727-1
CourtCourt of Appeal
Date27 July 1955
Daphne Winifred Louise Thynne (Marchioness of Bath)
(Petitioner) Appellant
and
Henry Frederick Thynne (Marquese of Bath)
(Respondent) Respondent

[1955] EWCA Civ J0727-1

Before:

Lord Justice Sihgleton

Lord Justice Hodern

Lord Justice Morris

In The Supreme Court of Judicature

Court of Appeal

MR. GEOFFREY LAWRENCE. Q.C. and MR. ANTHONY HARMSWORTH. instructed by Messrs.' Gordon Dadds & Co., appeared for the Appellant.

MR. G.E.S. SIMON, Q.C., M.P. and THE HON. VICTOR RUSSELL, instructed by Messrs. Charles Russell & Co., appeared for the Respondent.

THE SOLICITOR-GENERAL (sir Marry Hylton-Foster, Q.C.) and MR. OOLIN DUNCAN, instructed by the Queen's Froctor, appeared as amicus our.

1

LORD JUSTICE SINGLETOM The petitioner and the rospondent were married at St. Paul's Church, Knightsbridge, on the 8th Ootober, 1926. They were both quite young: as there was some objection on the part of relations, they had decided to get carried secretly.

2

In paragraph 3 of her affidavit in support ofhe S the petitioner deposes: "In order that our proposed marriage sight not be discovered my former husband, when applying for the Marriage Licence, transposed his Christian Bases and omitted my first Christian name On the 8th day of October, 1926, we were married at 8 Pauls church, in the Parish of St Pauls, Khightsbridge, in the County of Middlesex Hone of our friends or relations were present at the said ceremony There is now produced sad shown to marked 'A' a certified copy of the entry in the Register relying to the said marriage " Everyone agrees that the marriage of 8th October 1926, was a lawful marriage

3

On 27th October 1927, they went through a second ceremony of marriage - this time at St. Martin-in-the-Fields - and their friends and relations were present

4

On 20th January 1953 the petitioner launched a petition in which she sought a dissolution of marriage on the ground of the adultery of the respondent, and she asked for the discretionof the court to be exercised in her favour.

5

The petition was heard by His Honour Judge ale, sitting as Special Commissioner, on 15th May, 1953, and he granted a decree nisi of dissolution to the petitioner. The decree was madeabsolute on 27th June 1953.

6

Some time afterwards the petitioner wrote a book in which she referred to the secret marriage of which her legal advisers had had no knowledge In the result there came a summons dated 20th April, 1955, by which the petitioner sought liberty to amend paragraph 1 of the petition, "by striking out the date '27th day of October 1927' and inserting in place thereof the date '8th day of October 1926'; by inserting after the word 'Vivian' the words 'in the marriage certificate described as Winifred Louise Vivian': by Inserting after the words 'Viscount Weymouth' the words 'in the marriage certificate described as Frederick Henry Thynne' and by striking out the words 'the Parish Church in the Parish of St Martinia-the-Fields in the County of London' and insertlag in placethereof the words 'st. Pauls Church in the parish of St Pauls, Knightsbridge in the County of Middlesex', and ens also asked for as Order that consequential amendments should be made in the decrse nis and in the decre absolute

7

The patitioner had said that she was married on 27th October 1927 at St. Martin-in-the-Fields and the dsores which was granted to her was drawn upon that basis

8

With reference to the second ceremony, the petitioner in her affidavit said in paragraph 7: "Thereafter, in the course of time X came to look upon the latter ceremony as the valid marriage, and I have in fast at all times regarded such ceremony as constituting a valid marriage

9

(8) When I gave instructions to my solicitors to present my said petition for divorce I had firmly in my mind that the said second ceremony of marriage vao the one to be dissolved and I gave no thought to the said seoret marriages, nor did I inform my solicitors thereof.

10

(9) On the 11th day of July, 1953, I was married to my present husband, Alexander Fielding, believing that I was free and fully entitled to do so. I am informed by my former husband andverily believe that he vas married on the 15th day of July 1933 to Virginia Teant. the woman Based in my petition

11

(10) I have recently published a book of reminiscences in which I referred to my said secret marriage and it was only after the publication thereof that the matter in question was brought to my attention by my solicitors

12

(11) Subsequently I instructed by solicitors to take steps if possible to pt the matter right.

13

"(12) I am deeply conscious of the seriousness of the position which has arisen as the result of my neglect to inform my solicitors of my said secret marriage when instructing them toprepare and present my said petition. In the premises I can only pray that this honourable court will accept my assurance that such emission on my part was not intentional orcalculated in any way to deceive or mislead and that, therefore I may be granted the relief which I humbly crave "

14

The summons came before the President, Lord Marriage, and on the 5th May 1955, he held that he bad no option but to dismiss it It say be that he regarded the decree as a mullity andthat he could not by amendment make that which was a mullity into an effective decree. At pages 11 and 12 of the transcript he is recorded as having said: "I need hardly say that both counsel rejected with equal emphasis the bare idea that the decree absolute should be set asideas a nullity. As I have no such application before me, I need only add that, even if I have jurisdiction to accede to the present application, and if the amendments proposed are intendedto enwure that no question shall arise about the validity of the subsequent marriages, I am by no means sure that this object would be attained. If, as is argued, the husband and wife were divorced on the 27th June 1953, when the decree was made absolute, nothing more is necessary. If they were not then divorced by reason of inherent defect in the process from beginningto end, or otherwise, I cannot divorce them now with retroactive effect. It remains, however, to consider whether I have power to correct the decrees, either under the slip rule or by virtue of the inherent jurisdiction of the oourt, whatever the effect of so doing may be"!

15

This leaves the parties in a state of uncertainty. It it is assumed that the decree is a nullity and a new petition is launched it will be met by Rule 3(2) of the Matrimonial Causes Rules 1950 which provides that it cannot be filed so long as there is another petition by the same petitioner which has not been dismissed or otherwise disposed of by final order. And if it is sought to remove the decree, the answer may well be that it is a perfectly good decree or, at least, that it is not void.

16

The petitioner appeals to this court and herappeal was supported by counsel appearing for the respondent. Each asks for the help of the court in determining what the true position is if the court is not prepared to allow the appeal.

17

Following upoa the decree absolute each went through another ceremony of marriage. Thus the detemination of the questions raised is of importance to others beyond the parties to the appeal. these who went through ceremonies of marriage on the faith of the decrees wish to knowwhat their position is. If the decree nisi and the deoree absolute are void andd of no effectthey are not lawfully married; the questions raised are of public interests.

18

It was obvious from the commencement that on this appeal the interests of the petitioner and the respondent were the same, and it was desirable that there should be argument upon the other side. Eappily, the Queen's Prootor was represented by the Solicitor-General and Mr. Colin Dunoan, and we had the advantage of their submissions. The Solicitor General did not ask the oourt to say that the decree nisi was void or a nullity: he submitted that it was voidable, and that it (and the decree absolute) stood unless and until it was set aside. Me submittedfurther that neither a court of first instance, nor the Oourt of Appeal, could make the amendments sought, or any amendment, after judgment was given that is, after the decree nisi was pronounced, or after it was drawn up. It was not suggested that for this purpose there was anydifference to be drawn between the deoree nisi and the decree absolute.

19

The fact that the Solicitor-General did not submit that the decree was a nullity, or that it was void, does not absolve this court from the duty of considering the question. It is, I think, clear that neither Lord Gorellnor Lord Hersey in cases to which I shall refer would have given leave to aend if they had regarded the respective decrees as null and void. In Eaupson's case there had been a lawful marriagat a date earlier than, and at a place other than, that named in the petition and deposed to by the petitioner. a The judge who heard the petition was satisfied that there had bees a lawful marriage between the parties. When the application to amend was heard it was clear that the wrong date, and place, of the lawful marriage had been given, Likewise in the present casethe parties were lawfully married. No one contests it. They had acquired the status of married persons, but the petitioner gave the wrong date and place of the lawful marriage. That constituted a failure to comply with a rule. It is something for which provision is made by Order 70, rule 1. In Woolfenden v. Woolfenden. 1948 Probate, page 27, Mr. Justice Barnard drew attention to the distinction between failure to observe the terms of the statute and non-observance of a rule. Failure to comply with the provisions of the statute, he held, resulted in a decree being void, whereas failure to comply with a rule would make the decree only voidable.

20

The grant of a decree of dissolution puts an end...

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