Green & Anor v Montagu & Anor

By this action, the claimants, to whom I shall refer as “the trustees”, seek the directions of the court as to whether they can, under the terms of the 10^th Duke of Manchester’s English and Irish settlements (“the settlements”), benefit the the first and second defendants, Alexander and Ashley, who are the children of the 13^th Duke and Wendy Dawn Montagu (nee Buford). The third defendant, the brother of the 13^th Duke, has been appointed to represent the competing interests of other beneficiaries under the settlements. He has provided a witness statement in which he states that he is content to accept the decision of the court and has not been represented by counsel. At the conclusion of the hearing I made it clear that I would grant the trustees the relief that they seek, but that I would put my reasons in writing. These are my reasons.

Entitlement under each of the settlements depends on whether the children can be described as “issue” of the 13^th Duke’s father or as “descendants” of the 1^st Duke. Applying conventional approaches to construction of such documents leads one to the conclusion, at least at first blush, that only the legitimate issue or legitimate descendants can benefit.

The 13^th Duke has lived in sequence in Australia and in California in the United States. He moved to California in about 1986. In 1992 he met Wendy Buford. On 7^th May 1993 he went through a ceremony of marriage with her. On 13^th May 1993 their first son, Alexander, was born. On 16^th June 1999 their daughter Ashley was born. As she is not yet 18 years old, she was represented in these proceedings by her mother. Both children were born in California.

Wendy was 24 when she met the Duke. She was at that time employed in a law firm in Orange County, California. She had gone to a country music night club with her room mate. The 13^th Duke was also at the club with a group of friends. The Duke introduced himself to Wendy and showed her his business card which displayed his family crest and title. He asked for Wendy’s phone number so he could take her out to dinner. A year long courtship followed, leading to the ceremony which I have mentioned. What the Duke failed to mention throughout this time was that, at the date of the purported marriage, he was already validly married to Marion Stoner in Australia. He had married Marion Stoner on 17^th March 1984. His marriage to Wendy was therefore bigamous and void. That fact did not come to light until June 2009. The Duke had not troubled to become divorced from Marion Stoner until 1996, three years into his purported marriage to Wendy.

The Duke separated from Wendy in 2006/7 and the void marriage was dissolved in California in August 2007. The trustees, who had until then been providing maintenance for the two children, ceased to do so in 2009 when they discovered that the marriage was bigamous.

The Legitimacy Act 1959, the Act in force at the date of the settlements, provided as follows:

(1)

Subject to the provisions of this section, the child of a void marriage, whether born before or after the commencement of this Act, shall be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid.

(2)

This section applies, and applies only, where the father of the child was domiciled in England at the time of the birth or, if he died before the birth, was so domiciled immediately before his death.

The Legitimacy Act 1976 is to the same effect. The Family Law Reform Act 1987 provides for a statutory presumption that one of the parents reasonably believed that the marriage was valid where the child was born after 4^th April 1988. There is no need to rely on that presumption here because there is absolutely no doubt that at the relevant times Wendy reasonably believed that the marriage was valid. So the conditions for treating the children as legitimate, set out in subsection (1), are satisfied. However, by subsection (2), the section as a whole is to apply only where the father of the child is domiciled in England at the time of the birth.

The domicile of the 13^th Duke is not an easy matter to establish, and I was not invited to come to any conclusion on the facts here, as a conclusion on that matter may have wider consequences. Whilst it is possible that he remained domiciled in England & Wales at the relevant time, as the possible domicile of his father at the date of birth only two other possibilities exist: Australia (Victoria/New South Wales) and the United States (California).

In 1969, when the settlements were created, the laws of Australia and California both had provisions enabling one to treat the children of a bigamous marriage as legitimate:

In California, by virtue of section 195 of the Civil Code, children of any void marriage were legitimate. There was no requirement as to belief of the parents in the validity of the marriage.

Thus the domestic law of all possibly relevant domiciles of the parents, that is to say the possible domiciles of the father, the 13^th Duke, and the Californian domicile of the mother, of Alexander and Ashley, Wendy, treats the children of a void marriage as legitimate. How then should they be treated as a matter of English law for the purposes of the settlements?

In re Bischoffsheim [1948] 1 Ch 1979, the wife, Nesta, had married twice, once to Lord Richard Wellesley, who had died in 1914 and then, after his death, again to Lord George Wellesley, the brother of her first husband. The second marriage would have been void by the law of England under the Marriage Act 1835. But the couple were married in New York where no such invalidity arose. By the time that their son, Richard, was born they had acquired a domicile of choice in the United States. The question was whether Richard could take under a gift to Nesta’s (legitimate) children. Romer J summarised the argument advanced for the legitimacy of Richard in the following way:

“Admitting that only a legitimate child could take under the gift to Nesta …’s children, legitimacy is a question of status. That status is conferred or withheld, as the case may be, by the law of the domicile of origin, which is the law of the domicile of the parents at the time when the person whose legitimacy is in question was born. The status, once confirmed, remains with the person concerned throughout his or her life and will be recognized and given effect to by our courts, save only in cases where the person claims to succeed to real estate in England. It is established by the evidence that Richard Wellesley received at birth the status of legitimacy by the law of New York and, accordingly, it was contended, his claim, as a child of his parents, to a fund of English personalty will be recognised by the courts of this country."

Romer J held that those arguments “must prevail”. He did so principally on the basis of a decision of the Court of Appeal in re Goodman’s Trusts (1881) 17 Ch D 266. That was a decision about statutory legitimation, as opposed to deemed legitimacy, but Cotton LJ expressed his views in very general terms. He said this at page 291:

“It was urged … that the law of England recognises as legitimate those children only who are born in wedlock. This is correct as regards the children of persons who were at the time of the children's birth domiciled in England. But the question as to legitimacy is one of status and in my opinion by the law of England questions of status depend on the law of the domicil.”

Later at page 292, Cotton LJ said:

“If, as in my opinion is the case, the question whether a person is legitimate depends on the low level place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere, and I am of opinion that if a child is legitimate by the law of the country where at the time of its birth its parents were domiciled, the law of England, except in the case of succession to real estate in England, recognises and acts on these status thus declared by the law of the domicil.”

James LJ was forthright on this question as well. At page 296 he said:

“But the question is, what is the Rule which the English law adopts and applies to a non-English child? This is a question of international comity and international law. According to that law as recognised, and that comity as practised, in all other civilized communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the lawyer of the country of his origin - the law under which he was born. It appears to me that it would require great force of argument to arrive from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world. On principle, it appears to me that every consideration goes strongly to shew, at least, that we ought not so to stand. The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilized country, should be respected and acknowledged by every other member of the great community of nations."

For my part I would hold that those underlying principles should apply as much to legitimacy as legitimation. Whilst it is true that there are differences between the concepts of legitimacy and legitimation, I cannot see why the resulting status should be treated differently in the two cases.

Lord Chelmsford also regarded the matter as depending on the “effect of a divorce in Scotland dissolving the marriage”. He nevertheless did touch on an argument of the Appellants that the law of Scotland would render the children legitimate and that, therefore, the “status of legitimacy of the Appellants being established in Scotland must be recognised everywhere”. He rejected that argument on the basis that:

“… if a constructive legitimacy of this kind would, under the circumstances, have arisen in Scotland, I cannot think that we could be bound to recognise it so far as to qualify the offspring of a void marriage to take under the description of “children” in an English will”

He concluded:

“Whatever may be the view of the Scotch Courts as to the legitimacy of the Appellants, your Lordships are called upon to determine whether they answer a particular description upon principles of English law, and by the rules of construction of an English will. It is clear that the words "son lawfully begotten" and "children" in the will in question can apply only to a legitimate son or to legitimate children, and that the Appellants, not having the character of legitimacy according to English law, cannot take under these descriptions".

Lord Westbury also described the question as depending on "whether a marriage solemnized in England between two English subjects, domiciled in England at the time, can be dissolved by the decree of a foreign tribunal”.

That case was decided at a time when a marriage in this country was not dissoluble by an order of our courts. It required an Act of Parliament. It is fair to say therefore that the focus of the argument in that case surrounded the validity for the purposes of English law of the Scottish divorce. If the Scottish divorce was of no effect, then, so the argument ran, the subsequent marriage was void and the children were illegitimate. As Romer LJ said in re Bischoffsheim at 91, the noble Lords

“… approached the case, as also had Kindersley V.-C., on the footing that the legitimacy of the appellants depended on the validity of their parents' marriage, which, in its turn, depended on the validity of the Scottish divorce. If the validity of the divorce was regarded as a legitimate subject for enquiry, and if it was invalid, as the Lords held it to be, it necessarily followed as a result of those considerations, when taken by themselves, that the appellants' domicile of origin was English, as their mother's domicile remains that of her lawful husband, Buxton. Accordingly, on the sequence of reasoning which was adopted by the House in their approach to the case as a whole, they claim are founded on international acceptance of a status conferred by what was certainly the domicile of origin if the validity of the divorce was regarded as irrelevant, namely: by the law of Scotland, could not succeed or, indeed, arise; it was, so to speak, stillborn."

Romer J also said that it appeared that their Lordships assumed that whole matter turned on the validity of the Scottish decree. I agree with that analysis.

Shaw v Gould must I think now be regarded as a case very closely confined to its own particular facts, and as deciding only a question concerned with the recognition of a divorce, an issue which would not arise now. The notion of legitimacy as a status, capable of recognition in private international law, is now, but was not at the time of that decision, well established. Lord Chelmsford emphasised how narrowly he regarded the principles established by that case:

“My opinion in this case is founded entirely upon the peculiar circumstances attending it; the first marriage having taken place in England between parties having an English domicile which they never changed, and the divorce in Scotland having been obtained by pre-concerted arrangement, the parties resorting to the Scotch courts for the sole purpose of making it instrumental to the attainment of their objects. … I do not think that the tribunals of this country can regard a divorce obtained in those circumstances as binding on their judgement.”

No question of the reception to be given in England to a decree of divorce propounded by a foreign court arises in the present action, far less of any difference between the approach of our courts to questions of legitimacy to that of foreign courts. It is noteworthy that the authors of two of the principal text books on private international law both support the proposition that the English courts will recognise the status of legitimacy conferred on children by the law of their parents’ domicile. In Dicey, Morris and Collins on The Conflict of Laws 14^th Edition 2006 the authors formulate the following Rule under the heading “Recognition of the Status of Legitimacy”:

RULE 104 – (1) A child born anywhere in lawful wedlock is (or may be presumed to be) legitimate in England.

(2)

A child not born in lawful wedlock is (semble) legitimate in England if, and only if, he is legitimate by the law of the domicile of each of his parents at the date of his birth.

The word “semble” reflects the fact that the rule, in particular its requirement for legitimacy by the law of the domicile of both parents, is an attempted synthesis and reconciliation of the decisions in re Bischoffsheim and Shaw v Gould. In Shaw v Gould Elizabeth retained the domicile of her husband Buxton, which was English, whereas in Bischoffsheim both parents had acquired New York domicile.