Whitehead v Whitehead (orse. Vasbor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 19 July 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0719-3 |
| Court | Court of Appeal |
| Date | 19 July 1962 |
[1962] EWCA Civ J0719-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Willmer
Lord Justice Upjohn and
Lord Justice Russell
MR. JOHN SYMS, Q. C. and MR. A. B. EWBANK (instructed by Messrs Martin Samuels & Co.) appeared as Counsel for the Appellant.
MR. R. J. A. TEMPLE, Q. C. and MR. JOHN GARDNER (Instructed by Messrs Boyce, Evans & Sheppard) appeared as Counsel for the Respondent.
LORD JUSTICE WILLER: I will for the purposes of convenience refer to the parties in this case as "husband" and "wife".
This is a wife's application for leave to appeal from a decree absolute of nullity which was pronounced as long ago as the 21st August, 1950. The decree followed a hearing before Mr. Justice Hodson, as he then was, who pronounced a decree nisi on the 3rd July, 1950. The ground of the application is that the wife never had time and opportunity to appeal from the decree nisi within Section 31(l)(e) of the Judicature Act, 1925.
The husband is a domiciled Englishman. The wife is a lady of Russian origin. The ceremony of marriage which was in question took place in Moscow on the 19th May, 1948. At that time the husband was serving in Russia as a member of the British Military Mission, and had been in Russia since about March of 1944 it appears that some time during 1944 he became acquainted with the wife. They became friendly and in due course agreed to get married. The ceremony of marriage took place before a representative of the "Bureau of Civil Status" in Moscow. it is, and it was at the trial, the husband's case that immediately following the ceremony of marriage he went away to Odessa, having previously received posting orders for Odessa, and remained in Odessa until he was finally repatriated to England in July 1946. it is his case that from the time of the marriage ceremony he never lived with the wife, and certainly never had sexual Intercourse with her. So far as the evidence which he gave at the trial went, he made it clear that he never saw her again after he left Moscow for Odessa; but in the light of what we are now told, it appears that the parties did meet again in Odessa in July 1945, shortly before the husband loft Russia. Since his return to this country, the husband has never seen the wife again. For a year or two they corresponded to a certain extent, and the final letter of that correspondence was a letter from the wife dated the 7th June, 1948. That letterhas been preserved and has been put before us. I can only describe it as an immensely pathetic letter. it was written, as will be seen, some three years after the marriage ceremony had taken place, and substantially three years since the parties had met. in it the wife complained that she found herself in considerable trouble with the Russian authorities, as did other Russian woman who had married or associated with foreigners. it is clearly a letter written at a time when she went in fear that she might be arrested and punished. in fact, as we now know, within a month of her writing that letter she was arrested and sent to prison. She remained in prison until January 1956, when she was released.
In the meantime, however, the husband had brought proceedings for nullity, his petition being dated the 10th August, 1948. it appears from voluminous correspondence which we have before us that every possible attempt was made to trace the wife, so that the petition could be served upon her. As we now know, however, the wife was already in prison, and it is the fact that it proved impossible at that time to trace her. in those circumstances an order was made by Mr. Justice Pilcher on the 15th June, 1949, granting the husband leave to dispense with service.
The case came on for trial in October and November, 1949, before Mr. Justice Hodson as an undefended cause. it was tried at the same time as three other cases, one of which was the case of Kenward v. Kanward. which is a reported case, being reported in (1961) Probate, 124. At the hearing of those four cases evidence of Russian law was given by a Russian lawyer, Dr. Wolff, the evidence given by him being, I understand, common to all the four cases. The grounds of the husband's petition in this case were three-fold. First, it was alleged that the Russian marriage which he had contracted had none of the attributes essential to marriage as understood according to English notions; in particular it was said that it did not import any obligation on the spouses to live together.secondly, it was said that the ceremony was vitiated by the fact that there was no consensus ad Idem, the reason for that submission being that the parties bad completely different understandings as to the nature of the obligations they were incurring. Thirdly, it was sought to apply the doctrine of frustration, and it was said that the marriage was frustrated by the fact that the parties were prevented by the authorities from ever living together. it is true to say that Mr. Justice Hodson rejected all those three grounds on which the petition was based. He took the same course in the case of Kenward. I do not refer to the other two cases because there were certain distinguishing features in relation to the other two cases. What the learned Judge did was to dismiss the petition in nward's case. So far as the petition in this case was concerned, he adjourned it pending the hearing of an appeal which had been adumbrated in Kenward's case.
In due course nward's case came on for hearing in this Court, and by its decision of the 8th June, 1950, this Court reversed Mr. Justice Hodson's decision. This Court decided that a decree of nullity should be pronounced, on the ground that there was a want of certain essential formalities in the marriage ceremony. The finding as to lack of formalities was largely based on the evidence of Russian law given by Dr. Wolff. I do not think I need deal in detail with the respects in which this Court found that there was a lack of formalities. Baslcally the evidence of Russian law was that marriage in Russia was regulated by a code of 1926, as amended by an enactment in April 1945, that is to say an enactment only a month or so before the ceremony of marriage in the present case, it was proved that in order to comply with the Russian requirements, it was necessary for the parties to produce certain documents establishing their identity and status. They were also bound to disclose whether they were suffering, or had ever suffered, from certain diseases. it was provided that the officialbefore whom the ceremony took place was obliged to read to the parties certain articles of the code, and to warn them specifically of the penal consequences which might follow in the event of their making false statements. it was further provided that an entry should be made in the passport or other Identity document of each of the parties. There was also a provision that registration of the marriage should be indisputable evidence of the marriage; but, as I understand the evidence of Dr. Wolff, he expressed the view that that, although binding the parties, would not prevent the Court from investigating whether in any particular case there was a valid ceremony. The husband's evidence before Mr. Justice Hodson had been to the effect that none of these necessary formalities was observed in his particular case. The decision of the Court of Appeal, as I have said, was based upon a finding that these formalities were not observed, and a further finding that the absence of these formalities was a matter which in the circumstances went to the root of the marriage. The gist of the decision of the majority, consisting of the learned Master of the Rolls and Lord Justice Bucknill, was contained in a passage which I think is worth reading from the Judgment of the Master of the Rolls. it should be added that the third Member of the Court, Lord Justice Denning, whilst agreeing with the conclusion at which the majority arrived, based his own decision on other grounds. The learned Master of the Rolls said this at page 6 of the transcript: "I will deal, I hope adequately, with all these matters; but, anticipating at this stage the conclusion which I have reached, I am prepared in this case to hold that, in all the circumstances, there was hare no marriage. it is plain and I shall develop the point presently – that all the formalities required by the law of Russia were not compiled with. I should for my part be inclined to think that those matters of themselves might not go sufficiently to the root of the matter to enable the marriage to be challenged, assuming it to be open to challenge having regardto other parts of the Code. Bat it is not here merely a matter of failure to comply with certain formal requirements of the marriage code. One has to judge, as it seems to me, whether that failure was essential or not by considering it in the light of other facts and (again I am anticipating my conclusion) two other very important facte in particular.
"The first is that, not long after this so-called marriage had occurred, the law of Russia was amended by adding a provision to the code that all marriages between Russian citizens and foreigners were altogether forbidden. Secondly, as I have already stated, the Russian authorities from the first moment When they were approached made it as plain as human agency can make it that, in no circumstances whatever, would they permit the two parties to this so-called marriage to rejoin each other. When those two matters are added to the absence of formalities, the inference I draw is that the authorities responsible in this case, though they eventually if somewhat casually carried through the necessary ceremony at 9.30 in the evening of the 16th October" – that was the date when Mr....
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