Vervaeke (formerly Messina) v Smith
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hailsham of St. Marylebone,Lord Diplock,Lord Simon of Glaisdale,Lord Keith of Kinkel,Lord Brandon of Oakbrook |
| Judgment Date | 07 April 1982 |
| Judgment citation (vLex) | [1982] UKHL J0407-1 |
| Date | 07 April 1982 |
| Court | House of Lords |
[1982] UKHL J0407-1
Lord Chancellor
Lord Diplock
Lord Simon of Glaisdale
Lord Keith of Kinkel
Lord Brandon of Oakbrook
House of Lords
My Lords,
The more I reflect about this appeal, the more convinced I become that on a correct analysis of the facts and issues the appellant's position is unsustainable. We have before us in effect two petitions. The first dated the 7th September 1973, prays for a declaration that a decree of nullity obtained in Belgium in respect of a ceremony of marriage between her and William George Smith, the original respondent to the petition, but who has played no part in the proceedings beyond acknowledging service and giving notice that he did not desire to defend the proceedings, is entitled to be recognised in this country. This prayer for relief was formulated under O. 15 r. 16 of the Rules of the Supreme Court. The second, amending the first, filed on the 20th April 1979 pursuant to leave granted by order of Waterhouse J. granted on the 22nd March 1979 as a result of his refusal to grant the first prayer, is founded on section 45 of the Matrimonial Causes Act 1973 and prays that the marriage celebrated in Italy on the 12th March 1970 between the appellant and Eugenio Messina was a valid marriage still subsisting at the date of Eugenio Messina's death. To both these proceedings William George Smith was the original respondent, but, as I have indicated, has played no part in resisting either prayer, and has now, indeed, died. Both petitions are however resisted by two interveners (respondents to the appeal), namely (1) Salvatore Messina, who, after his death was replaced as from the 30th August 1977 by Attilio Messina, both being the brothers of Eugenio Messina, and (2) the Attorney General, who intervenes pursuant to the Order of Waterhouse J. made the 20th March 1979. The result of the appeal depends on the decision of your Lordships as to the validity of a ceremony of marriage performed in England on the 11th August 1954 between the appellant and William George Smith, and this, in turn, depends on the recognition (or otherwise) by your Lordships of the above-mentioned Belgian nullity decree. The real bone of contention between the parties is, however, the right to succeed to the property in England of Eugenio Messina, which, at the time of his death, was considerable. The appellant has failed before Waterhouse J. and the Court of Appeal (Arnold P. and Cumming-Bruce and Eveleigh L.JJ.) and now, by leave of the Court of Appeal, appeals to your Lordships' House.
The time has now come when I must rehearse the facts.
On the 11th August 1954 at the Register Office in the District of Paddington the appellant, at that time a spinster, of Belgian nationality and Belgian domicile, went through a ceremony of marriage with William George Smith, a man of British nationality, according to his own account down and out in London, drinking, and out of work, and induced to take part in the ceremony in return for a bribe of £50 and a ticket to South Africa. At one time it was alleged that this marriage was bigamous since William George Smith had previously been married in the Far East to a Russian woman, Helen Josephine Gavrilinka, but it has since been determined that at the relevant date that marriage had been dissolved by a Nevada divorce which, under the rules of English law, was recognised as valid by the English courts. See Messina (formerly Smith, otherwise Vervaeke) v. Smith (Messina intervening) [1971] P.322.
Although valid in point of form the marriage with Smith was not in any sense an ordinary one. There was no intention to cohabit as man and wife. To quote from Ormrod J. in the previous proceedings:
"This was a mere marriage of convenience between a man and a woman who were unknown to one another, for the sole purpose of enabling the woman to apply for British nationality so that she could not be deported as a prostitute or an undesirable alien."
The expression "marriage of convenience" in the above sentence is unfortunate. It is obvious from the context that Ormrod J. was not finding the marriage to be a "marriage of convenience" in the popular sense. But the marriage achieved its purpose. Again quoting from the same judgment, the appellant:
"worked as a prostitute between 1954 and 1963 in various brothels in London run by the Messina organisation. During this period she accumulated over 100 convictions for soliciting."
By means of the marriage ceremony with Smith, the appellant had acquired the British nationality she sought, a British passport, and the legal right to reside in the United Kingdom despite her hundred convictions.
In point of fact the appellant parted from Smith at the doors of the Register Office and saw him only one or twice thereafter in connexion with her application for British nationality and for a British passport.
It is obvious that proceedings of this kind, described by Ormrod J. as part of "a horrible and sordid story" can raise issues of public policy, as to which there can be more than one possible answer. The first is given by Ormrod J. in the passage immediately following that which I have just quoted.
According to Ormrod J.:
"Where a man and woman consent to marry one another in a formal ceremony conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony it is immaterial that they do not intend to live together as man and wife. It is, of course, quite otherwise where one of the parties believes that the ceremony is something different, e.g. a formal betrothal ceremony as in Kelly (otherwise Hyman) v. Kelly (1932) 49 TLR 99 … or as in Mehta (otherwise Kohn) v. Mehta [1945] 2 All H.R. 690, a ceremony of religious conversion. In such cases, the essence of marriage, the mutual exchange of consents accompanied by the formalities required by law, is missing, and such marriages are, therefore, void or perhaps voidable. On the other hand, if the parties exchange consents to marry with due formality, intending to acquire the status of married persons, it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about, or unaware of, some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the system of registration of marriages upon which so much depends in a modem community. Lord Merrivale in Kelly v. Kelly (supra) said: 'In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage law could be played with by people who thought fit to go to a Register Office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so reeard it. See also the observations of Hodson J. in Way v. Way [1950] P.71 at 79, approved by the Court of Appeal in Kenward v. Kenward [1961] P.124 at 133 and Silver v. Silver [1955] 2 All E.R. 614.'"
There has been no serious dispute before your Lordships that the above statement is a correct statement of English law. Nor, in the light of the quotation from Lord Merrivale above can it seriously be contested that the law as there enunciated is based on grounds of public policy, at least as regards marriages in England between British subjects. I would not wish to be thought to extend this doctrine into a statement of universal application, but I have no doubt that it would extend to a marriage as here celebrated in England between a British to a foreign national in circumstances where the ceremony was intended to achieve the status of British nationality in the foreign national by means of the marriage and the private arrangement between the parties was simply to limit their personal relationships to the achievement of the status of married person with a view to acquiring British nationality for the previously alien partner. In addition to the citation of authority by Ormrod J. in the passage above quoted one might also refer to the decision in Brodie v. Brodie [1917] P.271. However, I regard the position as incontestable at least to the extent that I have stated above. The fact is that in the English law of marriage there is no room for mental reservations or private arrangements regarding the parties' personal relationships once it is established that the parties are free to marry one another, have consented to the achievement of the married state and observed the necessary formalities. If further authority is required for this proposition, I refer to the impressive array of citations in Morgan v. Morgan [1959] 1 All E.R. 539.
Whilst all civilised nations deplore the transaction above described as morally indefensible, it by no means follows that the public policy of all civilised systems of jurisprudence agree that the consequence, viz. that the marriage must stand as valid, is the correct result. In particular it is not the view adopted by those European countries which follow the tradition of the Code Napoleon or the Roman Curia in their civil codes, and in further particular we know from the present proceedings that it is not the view recognised in the Belgian courts. According to this alternative view such a marriage as is under discussion is so repugnant that, if validly brought to the attention of a court of competent jurisdiction, it will be declared void ab initio on the ground that what has been consented to is not a marriage. In this connexion I quote in the translation afforded us the language used in relation to the impugned marriage in the present case of the Belgian Court...
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