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FAMILY DIVISION PUTTICK v.
ATTORNEY-GENERAL AND ANOTHER Reported at: [1980] Fam. 1 COUNSEL: Barbara Calvert Q.C.
and Owen Davies for the petitioner. Bernard Hargrove for the Attorney-General, the first respondent. Bruce Blair for the second respondent. JUDGE: Sir George Baker P. DATES: 1979 April 30; May 1,
2, 3, 4, 8 PETITION The petitioner, Anna Puttick, and the second respondent, Robin
Esmond Scott Puttick, were married at the Stepney Register Office, Tower
Hamlets in Greater London on January 22, 1975. By her petition filed on January
15, 1979, the petitioner prayed for a declaration that the marriage was a valid
and subsisting marriage. The petition stated, inter alia, that the petitioner
was born Astrid Huberta Isolde Marie Luise Hildegard Proll on May 29, 1947, at
Kassel in the Federal Republic of Germany and that her mother’s maiden
name was Müller; that the petitioner, after taking up residence in
England and Wales in August 1974, had been known as Senta Gretel Sauerbier or
Anna Sauerbier; that at the marriage ceremony the petitioner falsely
represented that she had been born Senta Gretel Sauerbier and as having been
divorced from a previous marriage together with other false particulars about
herself which were required to be given by her in order to marry; that the
petitioner was domiciled in England and Wales; and that she had been habitually
resident in England and Wales for one year preceding the presentation of the
petition. By an answer filed on February 14, 1979, the Attorney-General
put in issue the validity of the marriage and denied that the petitioner was
entitled to any of the relief for which she prayed. By an affidavit sworn in Poona, Maharashtra State, India, on
February 16, 1979, the second respondent, Robin Esmond Scott Puttick, stated,
inter alia, that he was born in England, had British nationality [*4] and
retained his English domicile of origin; that he had married the petitioner on
January 22, 1975, believing her to be Senta Gretel Sauerbier but knowing her by
the forename Anna and that he did not oppose the granting of a declaration that
the marriage between the petitioner and himself was a valid and subsisting
marriage and that he would be happy if the court granted to the petitioner the
relief for which she prayed. SIR GEORGE BAKER P. The petition is founded on section 45 of the Matrimonial Causes
Act 1973, the relevant part of which reads:
The prayer of the petition seeks a declaration that the marriage
celebrated on January 22, 1975, between the petitioner and the second
respondent may be declared a valid and subsisting marriage. In paragraph 4 of
the petition it is said: “At the said marriage the petitioner
falsely represented herself as having been born Senta Gretel Sauerbier and
having been divorced from a previous marriage and gave other false particulars
about herself which were required to be given by her for the said
marriage.” The first respondent, the Attorney-General, asked for further
particulars of paragraph 4. The first is whether there was any person entitled
to the names of Senta Gretel Sauerbier and identifying such person. The answer
to that is: “The person entitled to the name
Senta Gretel Sauerbier is a German national residing in West Berlin, in the
Federal Republic of Germany. Her address is not known to the petitioner but she
is represented by lawyers acting on her behalf…” Then she was asked whether it is alleged that at any other time,
apart from the occasion of the said marriage alleged in paragraph 4, the
petitioner so represented herself in relation to having been divorced from a
previous marriage and she said that on no other occasion, apart from her said
marriage, had she represented herself was having been divorced from a previous
marriage. That is not true. She was further asked what other false particulars
she alleges she gave about herself and whether such false information was given
knowingly. The answer is: [*5] “Apart from the false particulars
specifically set out in paragraph 4 of the petition the petitioner further
falsely stated that she was at the time a student of sociology, that her
father’s name was Eric Schulz and that her father’s
occupation was that of a machine engineer, all the false particulars being
related to the person entitled to the name Senta Gretel Sauerbier. All the said
false information was given knowingly by the petitioner.” In her affidavit in support of the petition, she says: “These proceedings are brought by me
in order to establish my entitlement to registration as a citizen of the United
Kingdom and Colonies under section 6 (2) of the British Nationality Act
1948.” Appropriate action has been taken in accordance with rule 110 of
the Matrimonial Causes Rules 1977 to notify and join the Attorney-General as is
required by section 45 (6) of the Matrimonial Causes Act 1973. By his answer
the Attorney-General puts all the matters alleged in the petition in issue and
denies that the petitioner is entitled to the relief claimed or any relief. For centuries it has been a fundamental legal principle in this
country that no man can take advantage of his own wrong. That is to be found in
Broom’s Legal Maxims, 10th ed. (1939), p. 191, citing Coke upon
Littleton, that is, Lord Coke’s commentaries on The Laws of England by Littleton,
published first around the year 1600. The quotation is in Latin: Nullus
commodum capere potest de injuria sua propria — “No man can take
advantage of his own wrong.” Broom continues: “It is a maxim of law, recognised and
established, that no man shall take advantage of his own wrong; and this maxim,
which is based on elementary principles, is fully recognised in courts of law
and of equity, and, indeed, admits of illustration from every branch of legal
procedure.” It is closely allied to the maxim ex dolo malo non oritur actio,
that is, a right of action cannot arise out of fraud, and ex turpi causa non
oritur actio, which in effect means the same thing. Coke upon Littleton has through the centuries been accepted as
defining the laws of England as they were at the turn of the 16th century. The
19th edition, published in 1832, which is the extant edition, refers on the
title page to “The Institutes of the Laws of England or a Commentary
upon Littleton, not the name of the author only but of the law
itself.” On the title page of Broom’s Legal Maxims there is a
quotation attributed to Sir J. Mackintosh that “Maxims are the
condensed good sense of nations.” It seemed to me at the start of this hearing that there was indeed
a strong case on the pleadings for the court to reject out of hand as failing
in limine a petition founded as it is on fraud, perjury, false pretences, and
forgery. However, I thought it better to examine the facts and statute law, as
this is a novel case. It is important to everybody and a decision is obviously
urgent. [*6] The facts and my findings The petition is brought in the name of Anna Puttick. In paragraph
2 she states: “The petitioner was born Astrid
Huberta Isolde Marie Luise Hildegard Proll on May 29, 1947, at Kassel, in the
Federal Republic of Germany. The maiden name of her mother was
Müller.” I have no reason to doubt that that is so, or to doubt that her
domicile of origin is German, although that is not admitted by the
Attorney-General. I find that the woman who has appeared and given evidence as
petitioner before this court is in fact Astrid Proll. In May 1971 she was
arrested in Germany on criminal offences including attempted murder and
robbery. She does not admit these offences and has tendered what would amount
in our procedure to a plea of not guilty. In September 1973 the trial began,
and February 4, 1974 — an important date — the trial was
adjourned because of her ill health, and she was granted bail by the German
authorities. Her evidence is that she remained in Germany for six weeks, which
would take her to April 1, 1974, although I do not, of course, seek to be exact
as to dates. She then, what we would colloquially call, “jumped her
bail.” She went first to Italy, having in her possession DM5,000,
which were then 5.5275-5.5375 marks to the pound, to give some idea of the
amount in English money. But money alone, of course, was not enough: she had
also a passport. Her evidence is that she bought it from another person for
DM3,000, who in turn had bought it on the criminal market. The passport is in
the name of Senta Gretel Sauerbier, born Schulz, in Bremen on June 22, 1947,
who had resided in Hamburg. It gave the shape of her face and the colour of her
eyes, and her height; and then said that she had no distinguishing marks. That
would not quite coincide with the petitioner, who agrees that she had upon her
arm a tattoo of Mickey Mouse, which was subsequently removed in this country
— under the national health scheme — and thereafter she could
stand full inspection on the passport. It was valid from December 29, 1972 (the date of issue) to
December 28, 1977, and was renewed in London on November 19, 1977. The
photograph on the passport is a photograph of Astrid Proll, the petitioner.
There is clearly a forgery because the photograph is partly covered by what
appears to be the official stamp of Hamburg. The passport also contains a visa
for the United States of America. The petitioner has said that it is purely a
coincidence that there is an American visa on the passport. I do not believe
that, and for this reason — and this is why the date of February 4,
1974, and the eight weeks, is important — the visa is dated April 10,
1974, that is, 10 days after the expiration of the eight weeks which the
petitioner says she spent in Germany before going to Italy. The irresistible
inference, having regard also to the facts that the petitioner’s
mother is in America, that the petitioner has been to America, she says, on
three occasions, having on one occasion spent some months there and that she
has been to school there, is that this visa, which was valid until April 10,
1975, was put on the passport after it came into the possession [*7]
of the petitioner or her agent who was acquiring it for her on the
criminal market. Senta Sauerbier, who I will call hereafter Dr. Sauerbier, has
given evidence, and says that she is a physician, was married in April 1971 and
divorced in June 1972. No divorce papers are now produced; the petitioner says
they have been lost. There is no evidence of how the petitioner obtained the
divorce papers. Dr. Sauerbier was not a helpful witness. She said that she is
now known as Schulz (her maiden name) and that she was married to Sauerbier. I
was invited to give her the warning that she need not answer questions which
she thought might incriminate her and I did so. She said that she had never met
the petitioner, that it was not her photograph on the passport, but added:
“The passport appears to be an earlier passport of mine.”
This was the first time that she had been in England. Then she refused to
answer, as she was entitled to do, the question: “What happened to the
passport?” She was asked in cross-examination if she knew Astrid
Proll, the lady in court. After a long pause she said that she did not, and
then she said she did not wish to say whether she knew her or not. But I am
satisfied, and find, that Dr. Sauerbier (or Schulz) is not the woman who was
concerned in the marriage of January 22, 1975, alleged by the petitioner. The purpose and intention of the petitioner, to quote her own
words, is as follows: “My intention was to get as far away
from Germany as possible. I purchased a German passport to cross borders to
work, and to identify myself because I could not use papers under my own
name.” That has been the continuing purpose of the petitioner throughout.
She left Italy after three months, that is, some time in July, she says because
there were too many German tourists and she was frightened of recognition. On August
6, 1974, she arrived in England as Senta Gretel Sauerbier. Her passport is
stamped on arrival, with permission to stay for six months. She had with her,
she says, something in the neighbourhood of £1,000, and received money to the
extent of DM2,000 when she was here, so obviously some person knew how to find
her. She did not work until after the marriage in January, and she stayed in
various establishments, some of which are what we colloquially call
“squats.” She was asked to give particulars of the places where she had
resided, and she says in her affidavit: “To the best of her
recollection the petitioner took up the following residences in England and
Wales:” and she has identified in her evidence which of these were “squats,”
which were rented, and which belonged to a friend. It is clear beyond
peradventure that these further particulars are in many respects inaccurate
— the petitioner says “imprecise,” but I am afraid
that they are a good deal worse than that. The first address at which she
stayed, in Holland Park Avenue (she cannot remember exactly where) seems to
have been arranged from Italy. The third address that she gives, 37, Belgrave
Street, London, E.1, which she says was a “squat,” is not an
address at which I think she ever lived at all. It was the address of Robin
Puttick. As will appear, there are other inaccuracies. I appreciate that it may
well be that she cannot remember exactly where she was, particularly as she
says that she always [*8] used false addresses for documents and
never put a true one unless she had to, in case she was found out. In October 1974, that is, a couple of months after she arrived or
a little more, she met the second respondent, Robin Esmond Scott Puttick (whom
I will call Robin Puttick), at a birthday party given by a woman, Mrs. Julia
Mainwaring, who has appeared and given evidence. Her birthday was on October
27, 1974, and the party was probably about that time, in Julia
Mainwaring’s premises of which she was, and I think she still is, the
tenant. The evidence of the second respondent, Robin Puttick, is given in
an affidavit (and the weight to which I give all this will be apparent in due
course). He states: “I met the petitioner for the first time some-time
in August/September 1974…” That is not the evidence before
the court which is that it was towards the end of October. He continues: “… when living in the same
area as other squatters — 37, Belgrave Street, London, E.1 and 10,
Aston Street, London, E.11. I understood at that time that the petitioner had
an address in Hackney. We became acquainted with each other by moving in the
same social circle, that is to say East London squatters.” He had a brother who lived in Aston Street but I do not accept
that he lived there at all, or that she lived there, and they certainly did not
live there together. His home was 37, Belgrave Street, so far as he had a home;
and she was living, at the end of 1974 — she says, “in or
about the summer of 1975” — at 25, Marlborough Avenue, which
was her first “squat.” Her story is that he was a plumber and electrician and his
practical work was important to her. She watched him at work, and sexual
intercourse began between them in December 1974. In so far as there was sexual
intercourse, I find that it was casual, infrequent and meaningless to her; but
from her side with a purpose which she, in fact, achieved. She never moved in
with him, or he with her, either before or after marriage, because, she said,
it was very important for her to have her own place. She wanted to avoid
people, and they always had separate addresses. That, I think, is true. Her
permission to stay in England was due to end on February 6, 1975, at the
expiration of the six months. She knew it would be dangerous to overstay, for
if she was caught so doing attention would be drawn to her and questions asked.
She was, I think, desperate to have her visa extended, preferably indefinitely.
A way to achieve this was by marriage to an Englishman. So at about Christmas
time she raised the question with Robin Puttick, who first knew her as Anna,
and later, at the time of her marriage, as Senta Gretel Sauerbier. Neither, so it is said, inquired about the background or family of
the other. She says that she was not interested in his parents and made it
quite clear to him that she did not want to be asked about her past, and he
respected her wishes. He knew, however, that she was very interested in becoming
a British national. That is apparent from his affidavit, where he says: “The question of the petitioner
acquiring British nationality only arose after the marriage. The petitioner
seemed very interested in
[*9] becoming a British
national, but I did not realise the reason for this.” The inducements which she held out to him, namely, that marriage
would enable her to stay in the United Kingdom, so that their sexual
relationship could continue and that he would have a married man’s tax
allowance prevailed. He discussed marriage with his friend, Mrs. Main-@waring,
who was a sociologist. At first she did not agree, having regard to her own
history, but changed her mind after meeting the petitioner once, and being
“pleased that they had established a relationship,” whatever
that means. The petitioner appeared to me to be a clever witness and a
persuasive woman. I am sure, and find, that the purpose of the marriage and on
her side the sole purpose, was to be able to remain in the United Kingdom and
subsequently to obtain citizenship. Two of the witnesses to the ceremony,
Gillian Lees and Monty Hurman, have said in evidence that they assumed it was a
marriage of convenience, and some time has been devoted to that question. “Marriage
of convenience” is a popular, not a legal, description. All I need say
is that this marriage lacked all the purposes and intentions of a genuine and
generally accepted union, namely, mutual love, support and comfort;
cohabitation in the matrimonial home as husband and wife; a union for life and
the production of children. But that is immaterial to the validity of the
marriage: see Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728,
although I think it is relevant when considering the question of domicile. One of them telephoned the Stepney Register Office, and on January
20, 1975, they went there together. She produced the passport and the divorce
papers. A notice of marriage was completed and signed in the presence of the
superintendent registrar by Robin Puttick, and confirmed by the signature (or
alleged signature) of the petitioner. That signature is not unlike the one on
the passport, but there is no evidence of who wrote the one on the passport.
The “Notice of Marriage by Certificate and Licence” gives the
particulars of Robin Puttick and of Senta Gretel Sauerbier; aged 27 years. That
is right. Her previous marriage had been dissolved; she was a student of
sociology. The place of residence in both instances is given as 10, Aston
Street; the period of residence “more than a month” in each
case. That was all untrue, and Robin Puttick must have realised that the
residence and period of residence were false. Then he signed and she confirmed.
There is a note on the first page: “22/1/75,” the date which
apparently was booked for the wedding. On the second page her father’s
name is given, and his occupation “Engineer,” and then
“P/P seen” — that must mean “passport
seen” — and “West German” and the number of
the passport, which is the actual number of the Sauerbier passport, is given.
Then there is mention of a divorce decree, in writing which I am not
immediately able to decipher. On the same day the superintendent registrar wrote to the
Registrar-General as follows: “Because of the urgency expressed by
the parties concerned I send herewith a copy of notice of marriage taken here
this morning for a proposed marriage by licence at this office between Robin Esmond [*10] Scott Puttick and Senta Gretel Sauerbier both resident in
this district. Mrs. Sauerbier has been previously married and submits her
German divorce decree together with translation of the document. I will be glad
to know that the decree is acceptable and that we may proceed with the marriage
in due course.” On January 21, a reply was received from the General Register
Office saying, in effect, that the certificate and licence could be issued, and
then a warning about the validity of the divorce which does not arise. It is not established that Robin Puttick knew that she was other
than as described, although he knew that the residence columns were untrue. On January 22 Robin Puttick went to the register office and met
there the petitioner who had been driven to the register office by a girl, Jane
Grant, whose house or squat, 25, Marlborough Avenue, she says she shared at
that time. Monty Hurman, Julia Mainwaring and her small daughter, and Gillian
Lees were present, and the parties were married. Of course, the same lies
appear on the certificate as on the notice; that followed from the
impersonation. There are two matters in relation to the ceremony which I have
considered. There was a ring, a gold band. It was given to the petitioner, she
says, by a friend two days, or shortly before the ceremony. The friend was a
male named Phil. She appeared very reluctant to reply to questions in
cross-examination about the ring, but I have concluded that the only
significance is that she wore it for but a short time only and gave it up, she
says, because of her work. The other matter is that Hurman never saw Robin Puttick with a
beard. Mrs. Mainwaring did not think, according to her evidence, that he had
one at the wedding. They both knew him well. The petitioner, on the other hand,
when she identified Robin Puttick in recently taken photographs was asked,
“When you married him, did he look like that or are there any
differences?” She answered: “He has a longer beard now and longer
hair.” “Have you any doubts that it is him?” Answer:
“No.” Then I asked a question: “He seems to have
been cleanshaven at one time?” and I referred to an old passport of
his which shows him to be cleanshaven. She was then asked by her counsel,
“Was he cleanshaven when you married him?” Answer:
“No, I have never known him without a beard.” However, I do
not now think that that evidence goes to identity; it merely tends to show that
the premarital relationship was both casual and infrequent. I find that the two persons married on January 22, 1975, were in
fact the petitioner Astrid Proll and the second respondent Robin Puttick. After the marriage they all went to a public house and then to a
restaurant. I am not even satisfied that the two of them spent that night
together at 10, Aston Street, or anywhere else. The next event was that the husband went to the Home Office two
days later on January 24, and had the time limit for her stay removed, because
of her marriage to him. That, again, appears on the face of the passport. Their relationship, such as it was, and I do not accept that it
was anything like as close as she would have me believe, cooled rapidly. They
never had a home, nor did he support her, even before she started work [*11]
in the spring of 1975. She says that sexual intercourse continued until
June or July 1975. Then, she says, it ceased at about the end of that year:
“We just drifted apart.” They were last seen together in the
Lake District in the second week in August by Mrs. Mainwaring, who was camping
there. They called in on their way to Scotland. That is the only convincing
evidence of their being together. He became increasingly interested in an
Indian religious sect and, according to the petitioner, was already thinking of
going to India by May 28, 1975. There was no suggestion that she should
accompany him. He left for Poona, India, on August 5, 1976. So, if Mrs.
Mainwaring is right about seeing them in the second week of August, it must
have been 1975, and not 1976 as he says in his affidavit. Late in the case Mrs. Mainwaring, who was the second last witness,
disclosed that he returned from India 18 months to two years ago, and then went
back. The inference is that he never saw or attempted to find the petitioner. Meanwhile, the petitioner made an application for British
citizenship under section 6 (2) of the British Nationality Act 1948, which
reads: “Subject to the provisions of
subsection (3) of this section, a woman who has been married to a citizen of
the United Kingdom and Colonies shall be entitled, on making application
therefor to the Secretary of State in the prescribed manner, and, if she is a
British protected person or an alien, on taking an oath of allegiance in the
form specified in Schedule 1 to this Act, to be registered as a citizen of the
United Kingdom and Colonies, whether or not she is of full age and
capacity.” Subsection (3) merely refers to a person who has renounced or been
deprived of citizenship. The application, typed, signed, and declared by her to
be true, before a solicitor empowered to administer oaths, repeats all the
former lies. It is unnecessary for me to go through it in detail, because it
sets out everything which identifies her as Sauerbier but, of course, giving
the surname now of Puttick. It was consistent with the Sauerbier passport and
produces a signature about which no evidence has been given, but it seems to be
“Senta Puttick.” It contains the same lies about her father
and about the divorce. That was sent to the Home Office. Had this fraud succeeded, the Secretary of State had power to
deprive her of her citizenship under section 20 of the British Nationality Act
1948, which reads: “(2) Subject to the provisions of
this section the Secretary of State may by order deprive any such citizen of
his citizenship if he is satisfied that the registration or certificate of
naturalisation was obtained by means of fraud, false representation or the
concealment of any material fact…. (5) The Secretary of State shall
not deprive a person of citizenship under this section unless he is satisfied
that it is not conducive to the public good that that person should continue to
be a citizen of the United Kingdom and Colonies.” On May 28, 1975, Robin Puttick wrote to the Home Office: “Thank you for your letter of May 22,
1975. We enclose the £2, which was overlooked by my wife. We
originally enclosed both of [*12] our passports, mine as proof of
identity etc. If you think there likely to be a delay of more than 3-4 weeks
before completing the application of my wife, can I (Robin Puttick) have my
passport back, as I need it….” This was the time when she says he was contemplating going to
India. The letter continues: “Ideally, I should like my wife to
come with me, so I’d like hers back as well. If you can’t
return it (and I understand you are very busy these days) please tell me how
long it is likely to take.” Then on August 8, 1975 (there had obviously been some further
correspondence in between), she wrote: “I regret this delay in responding to
your letter of July 10. In that letter you asked that I take the oath of
allegiance and submit it to you within a month. Family matters have made it
very difficult for me to do so thus far, but I should be able to do this within
the next month. I would like to apologise for any inconvenience this might
cause your department and trust that if this raises any complications to my application
you will let me know.” The truth of the matter must be, I think, that she was
apprehensive about being called upon to take an oath of allegiance. Then,
finally, on December 10, she writes: “In response to your letter of
November 4, 1975, I have decided to cancel my application for registration as a
citizen of the U.K. which I made July 10, 1975. I apologise for the
delay.” She says, and I think this may well be right, that she withdrew
her application because she was apprehensive that the Home Office might consult
the German authorities. She obtained work first with the Hackney London Borough Council in
the spring of 1975 and later, in 1977, as a fitter’s mate, and then as
a supervisor. She obtained work qualifications and various documents, including
a union card and a driving licence, all in the name of and with the identity of
Sauerbier, although in her married name of Puttick. How she came to obtain a
driving licence — whether she took a test or what happened — has
not been a matter of evidence but in any event the driving licence application
must have given a false or an accommodation address, because that appears on
her licence which has been produced. On September 15, 1978, she was arrested as Astrid Proll. On
October 10, 1978, after her arrest, she again applied for British citizenship
under section 6 (2) of the British Nationality Act 1948 in her true name and,
so far as is known, with her true particulars. Section 20 (2) of the Act of
1948, which I have read, would therefore not apply. She sought a judicial
review to compel the Home Secretary to act, but this was refused both by the
Queen’s Bench Divisional Court and by the Court of Appeal, who said, I
am told, that her proper forum as the validity of her marriage was in question
was the Family Division. She filed this petition on January 15, 1979. On
February 5, 1979, the Chief Magistrate made an order for her extradition. On
February 15, that is to say 10 days later, she applied for [*13]
habeas corpus from the Queen’s Bench Divisional Court who, I am
told, adjourned her application pending this hearing. The only other material fact is that on March 19, 1979, the Senior
Registrar gave Robin Puttick leave to give his evidence on affidavit. This was
supported by affidavits of the second respondent and his solicitor that he was
unable to come to England, that there would be serious disruption of his
religious way of life and to other members of the community in which he lives
in Poona. There could also be obstacles to his return to India by the
Government of India, and he would not come. The Attorney-General opposed the
application and renewed his opposition before me on grounds which appeared to
me to be sound. I refused to admit the second respondent’s affidavit
evidence unless it was clear that it was impossible for him to come. He has
been given every opportunity to come, fare paid, since the start of this
hearing; but the story now is that his guru will not allow him to come, and
that he has undertaken by vow to live in the community. No mention has been
made of his visit of 18 months or so ago. Finally I agreed to read his
affidavits for what they are worth. Obviously there were many questions which
the Attorney-General’s counsel would wish to ask. The validity of the marriage This marriage is either valid or void. It cannot be voidable, as
the husband accepts it and does not allege that he did not validly consent. I
quote the words of section 11 of the Matrimonial Causes Act 1973: “A marriage celebrated after July 31,
1971, shall be void on the following grounds only, that is to say —
(a) that it is not a valid marriage under the provisions of the Marriages Acts
1949 to 1970 (that is to say where — … (iii) the parties have
intermarried in disregard of certain requirements as to the formation of
marriage).” None of the other matters in paragraphs (a), (b), (c) and (d) are
relevant. This was a marriage by certificate and licence, for which notice in
the prescribed form must be given. Section 27 (3) of the Marriage Act 1949
provides: “A notice of marriage shall state the
name and surname, marital status, occupation and place of residence of each of
the persons to be married and the church or other building in which the
marriage is to be solemnized and — … (b) in the case of a
marriage intended to be solemnized by licence, shall state the period, not
being less than 15 days, during which one of the persons to be married has
resided in the district in which notice of marriage is given.” Section 32, which deals with marriage under certificate by
licence, provides: “(1) Where a marriage is intended to
be solemnized on the authority of a certificate of a superintendent registrar
by licence, the person by whom notice of marriage is given shall state in the
notice that the marriage is intended to be solemnized by licence, and the
notice shall not be suspended in the office of the superintendent
registrar.” [*14] Then follow various other requirements. Then further in section 45
there is provision for the solemnisation of marriage in a register office, and
how it is to be done. Finally, in respect of void marriages, section 49 of the
Marriage Act 1949 provides: “If any persons knowingly and
wilfully intermarry under the provisions of this Part of this Act —
(a) without having given due notice of marriage to the superintendent
registrar; (b) without a certificate for marriage having been duly
issued… (c) without a licence having been so issued, in a case in
which a licence is necessary…” and various other instances
which do not matter in this case, “the marriage shall be
void.” A clear distinction has been recognised by the English courts
between marriage by banns and marriage by licence. In the former a
misdescription of a party renders the marriage void, because there had not been
the required publicity. In the case of marriage by licence there is no such
requirement and no such result follows, for the object of the licence is not
publicity but identity. In Plummer v. Plummer [1917] P. 163,
168-169, Lord Cozens-Hardy M.R. said: “It was a marriage by licence and not
a marriage by banns. There is a distinction as regards the notice required to
be given between a marriage by licence and a marriage by banns. In the case of
the latter a wilful and fraudulent misstatement in the notice to the knowledge
of both parties will invalidate marriage. But in the case of a marriage by
licence a licence can be obtained on payment of a certain sum of money, and
after the application for it and before the marriage takes place no publicity
is necessary, which seems to me to show that the principles which have been
applied to marriages by banns or on notice without licence ought to have no
application to a marriage by licence.” Bankes L.J. said, at p. 172: “It seems to me impossible to draw a
distinction between a case where it is done fraudulently and a case where it
may be said not to be done fraudulently.” Then he cites from a decision of Swinfen Eady J. in In re
Rutter
[1907] 2 Ch. 592, 595 and continues: “The conclusion I have come to is
that there is no authority for saying that the giving of due notice requires
anything more than the giving of notice in due form of law, that is to say, in
the form required by the statute, and that the reasoning applicable to the due
publication of banns does not apply to the case of a notice for a marriage
given under section 4 of the Marriage Act 1836.” Finally, Warrington L.J., in this very strong Court of Appeal,
said, at p. 174: “In my opinion, therefore, it comes
to this: that in the case of a marriage by licence, which is the only case with
which we here have to deal, although both parties may make a false statement as
to the [*15] names for the purpose of the notice and
declaration, yet the marriage will be valid, the consequence of giving the
false notice being not to invalidate the marriage, but to expose the parties to
penalties of perjury.” In that case the court approved the earlier decision and dicta of
Swinfen Eady J. in In re Rutter [1907] 2 Ch. 592. The distinction is to be
found as long ago as 1809 in Cope v. Burt, 1 Hag.Con. 434, and even then Sir
William Scott, at p. 435, considered that the point had been decided in Cockburn
v. Garnault in 1792, and in the Court of Arches in 1793. Then in 1934 the
Court of Criminal Appeal, presided over by Lord Hewart C.J., who had been
counsel for the King’s Proctor in Plummer’s case, sitting with
Avory and Talbot JJ., in Rex v. Lamb (1934) 24 Cr.App.R. 145, did not call upon
counsel for the Crown to argue that that court was bound to follow Rutter’s
case
and Plummer’s case. It is consequently not surprising that Mr. Hargrove,
for the Attorney-General, conceded that I am bound to hold that the assumption
of a false name or description does not avoid the marriage, although I
understand that he wishes to reserve the point for argument elsewhere if
necessary. A distinction could be drawn if the person who gave notice was not
the same individual as the person who appeared at the ceremony. Such a marriage
would, I think, be void: see in Lane v. Goodwin (1843) 3 G. & D.
610, 611: “If fraud were practised, as if a
licence given to one person were made use of by another, it would, as is
observed by Sir William Scott in [Cope v. Burt], when before the
Consistory Court, be a fraud which would entirely vary the question.” The Crown further submits that, whereas here it is not simply a
matter of misdescription, even fraudulent misdescription in the licence, but of
impersonation by the complete adoption of the name and identity of a living and
identifiable person, namely Dr. Sauerbier, in order to obtain the status of a
married woman, the marriage is invalid — at least if Mr. Puttick knew
or was wilfully blind to the fact that the woman he was purporting to marry was
Astrid Proll. Such personation would strike at the roots of registration and it
could imperil the status of the person whose identity is assumed, that is Dr.
Sauerbier, who would be recorded as having married in England. Great confusion
could be caused to any descendants of hers, especially after the death of the
parties if it happened before the discovery of the fraud. I cannot accept this
argument, for which the only support appears to be a submission made in Lane
v. Goodwin, 3 G. & D. 610. I am bound by authority. Defects in registration law cannot be
cured by this court; nor can I find that Robin Puttick knew or was wilfully
blind to the true identity of the woman he married. Of course his evidence is
as unsatisfactory as hers on this point, and he says in his affidavit of
February 12, 1979: “I did not know the
petitioner’s true identity and knew very little of her background. I
did not know anything of the alleged offences for which she is being extradited
to West Germany. I did not know that [*16] she was Astrid Proll.
I knew her as Senta Gretel Sauerbier. Basically, I simply knew the petitioner
as Anna.” In his other affidavit of February 16, 1979, he says: “As I have stated in my affidavit of
February 12, 1979, I did not know the petitioner was Astrid Proll. Throughout
the time I knew her by the forename ‘Anna’ and believed her
full name to be Senta Gretel Sauerbier. Only since her arrest in England have I
found out through friends and newspapers that her real name at the time of my
marriage to her was Astrid Proll.” Against this, of course, there was no cross-examination; and Monty
Hurman, who saw her only at the wedding, said that he thought from what Robin
Puttick said that she was a refugee, and he assumed she was from East Germany.
Be that as it may, the evidence is insufficient for me to draw any inference against
Robin Puttick, who does not oppose the prayer of the petition. My conclusion is
that the marriage is valid. The husband’s domicile and the wife’s dependent
domicile His domicile of origin is undoubtedly British. Much time has been
spent in discussing whether the petitioner, as was the submission at the start,
had a dependent domicile at the relevant date, that is, when she made this
application; and whether he had abandoned his domicile of origin, acquiring a
domicile of choice in India. There is much to be said for the view that he has,
although the onus is upon the Crown to prove it. But in my opinion the question
is now irrelevant as a woman no longer acquires the domicile of her husband by
virtue only of her marriage. Section 1 of the Domicile and Matrimonial
Proceedings Act 1973 has a marginal note as follows: “Abolition of
wife’s dependent domicile.” The weight to be given to a
marginal note was considered by the Court of Appeal, whose judgment was
delivered by Upjohn L.J. in Stephens v. Cuckfield Rural District Council [1960] 2 Q.B. 373,
383: “While the marginal note to a section
cannot control the language used in the section, it is at least permissible to
approach a consideration of its general purpose and the mischief at which it is
aimed with the note in mind.” Section 1 of the Domicile and Matrimonial Proceedings Act 1973
reads: “(1) Subject to subsection (2) below,
the domicile of a married woman as at any time after the coming into force of
this section shall, instead of being the same as her husband’s by
virtue only of marriage, be ascertained by reference to the same factors as in
the case of any other individual capable of having an independent
domicile.” Subsection (2) deals with cases where the married woman had the
husband’s domicile by dependence at the coming into force of the Act: “… she is to be treated as
retaining that domicile (as a domicile of choice, if it is not also her
domicile of origin) unless and until it is changed by acquisition or revival of
another domicile either on or after the coming into force of this
section.” [*17] Mrs. Calvert, for the petitioner, argues that the Act of 1973 was
passed to enable a married woman to avoid taking a dependent domicile if she
did not want it, but that she can still take it if she wishes, and so the
petitioner can have, and has, a domicile dependent on the domicile of her
husband, namely, an English domicile. I cannot accept this construction of
section 1. Test it in this way. There have been many cases where English girls
have married service men, mostly American service men serving in this country.
Indeed, divorce law was changed over the years in order to enable such women to
bring proceedings based on residence in this country and not on domicile. The
American service man (and I hope this is not defamatory of Americans, but it
has happened) is posted back to America at the termination of his service here.
He says that he will arrange for his wife with whom he has been living here
since the marriage to come over in a week or two, and that is the last that is
heard of him. In these circumstances the wife’s domicile was and
remained dependent on that of her husband, an American domicile, so she had and
retained American domicile. But now, since the passing of this Act, her
domicile on marriage is no longer automatically the domicile of her husband,
and she cannot get an American domicile unless and until she goes to America,
for domicile is acquired partly by intention and partly by residence, there
must be both. I cannot construe section 1 of the Act of 1973 as Mrs. Calvert
suggests. Dependent domicile has been abolished and I find that this woman
could not and did not obtain an English domicile on marriage. Of course, a marriage as normally understood would be strong
evidence that a woman has acquired the same domicile as her husband, for
example, when a foreign woman comes here and marries an Englishman and they
settle down as a married couple, have children and so on; but it is only one
factor in her choice. Its compelling feature is that the woman sets up a home
and lives with the husband. That is not so here. The example was suggested by
Mrs. Calvert of two students marrying, the one studying at Bristol University
and the other at Durham; they meet infrequently and do not get together to set
up a home, at any rate during the time that they are at their studies. But the
difference there is that these two intend to set up a home, to cohabit together
as husband and wife. There is no evidence whatsoever in this case that the
petitioner and Robin Puttick intended any such thing and, indeed, from the
facts the inference, I think, must be the other way. Wife’s domicile of choice Her case is, briefly, that she thinks that by marrying Robin
Puttick she made a decision to stay here, that she had no intention of going
back to Germany but intended to remain here and wanted to make it her permanent
home. At the time of her application she had been here over four years. It is,
of course, for her to prove that she has abandoned her German domicile of
origin. The length of a person’s residence, though material, is rarely
decisive; see per Lord Macnaghten in Winans v Attorney-General [1904] A.C. 287,
297-298: [*18] “Then it was said that the length of
time during which Mr. Winans resided in this country leads to the inference
that he must have become content to make this country his home. Length of time
is of course a very important element in questions of domicil. An unconscious
change may come over a man’s mind. If the man goes about and mixes in
society that is not an improbable result. But in the case of a person like Mr.
Winans, who kept himself to himself and had little or no intercourse with his
fellow men, it seems to me that at the end of any space of time, however long,
his mind would probably be in the state it was at the beginning. When he came
to this country he was a sojourner and a stranger, and he was, I think, a
sojourner and a stranger in it when he died.” Then evidence by a person himself of his or her intentions is
treated with reserve, even where the truth of the evidence is undoubted. Here
the petitioner’s evidence is all suspect, if only because she is a
woman who would tell any lie, use any deceit, to achieve her end, which is in
short not to have to return to Germany. I cannot accept her evidence unless it
is supported, and in particular I cannot accept her evidence about her places
of residence here. To put it colloquially, she was a woman on the run, and I think
the true inference to be drawn from the facts and circumstances is that, if at
any time she had realised, not that she was in danger — that was
constant — but that detection and arrest was imminent, she would have
left England at once for a safer land, given the means to do so. Can anyone
doubt that at all times since her arrest she would, if she could, escape, and
had she the opportunity and means to do so, leave this country as quickly as
possible? She is a fugitive from justice, and her true intent has always been
to avoid having to return to Germany to face the trial. Her intention to remain
in England, for whose laws she has shown contempt, and for whose institutions
and way of life she has never, so far as I know, expressed any admiration, was
a secondary intention forced upon her only as necessary to achieve her primary
object. The mere fact that a person is liable to be deported, for example,
an alien subject who was subject to the Aliens Order 1920 (see Boldrini v.
Boldrini and Martini [1932] P. 9), does not of itself prevent acquisition of a
domicile of choice: but see Briggs v. Briggs (1880) 5 P.D. 163,
where the respondent left the country through fear of his creditors but did not
acquire a domicile of choice in the United States of America. The question is
whether the person is in England primarily to avoid detection, or is it
primarily to set up home? She never set up home here, although she resided and
obtained work qualifications; but she did not want to go back to Germany, her
domicile of origin, because she did not want to surrender to her bail, to be
tried. Her primary purpose in living here was to avoid detection, and no
abandonment of domicile of origin has been proved. She agreed also in her
evidence that she might have returned to Germany if the charges against her
were ever dropped. In my opinion she did not acquire a domicile of choice in
this country. Another way of looking at her alleged domicile of choice is that
it was unilateral. The hosts, that is, the people of England as
represented [*19] by the Crown, had no say in the matter,
for her residence beyond six months was achieved by lies and impersonation and
fraud. Had the truth been known, she would never have been allowed to stay, so
it was not a free choice; see Rayden on Divorce, 13th ed. (1979), vol. 1, p.
61: “Illegal entry and residence would
clearly make the court hostile to an assertion that the illegal immigrant had
thereby acquired a domicil of choice, but the court might take a different
view, for example, where the time factor since the entry was considerable or
where possibly the immigrant genuinely did not appreciate that his entry was
illegal.” Perhaps most important for this case is a passage in Dicey
& Morris, The Conflict of Laws, 9th ed. (1973), p. 96, where the authors are
dealing with rule 10 on acquisition of domicile of choice, namely:
“Every independent person can acquire a domicile of choice by the
combination of residence and intention of permanent and indefinite residence,
but not otherwise.” They say: “It has been held that a domicile of
choice cannot be acquired by illegal residence. The reason for this rule is
that a court cannot allow a person to acquire a domicile in defiance of the law
which that court itself administers. Thus a person who is illegally resident in
(for example) South Africa will not be regarded by the courts of that country
as domiciled there. In the same way, it is submitted that an English court would
hold that a person who was illegally resident in this country could not thereby
acquire an English domicile of choice.” The cases cited in support of the proposition are all Dominion
cases and none of them has been produced to this court. I accept this passage
in Dicey & Morris which supports the Crown’s submission that a
person cannot achieve status by fraud: see also Reg. v. Secretary of State
for Home Department, Ex parte Sultan Mahmood in the Court of Appeal on July 26,
1978, Court of Appeal (Civil Division) Transcript No. 541 of 1978. There
Stephenson L.J., adopting the words of Lord Widgery C.J. in the Divisional
Court, said: “a person who obtains some essential documents by fraud
should not be allowed to enjoy a superior status on that account.” See
also Reg. v. Secretary of State for the Home Department, Ex parte Hussain [1978] 1 W.L.R. 700.
There, leave to enter was obtained by fraudulent production of an invalid
passport. Such leave was held ineffective. Discretion Section 45 (5) of the Matrimonial Causes Act 1973 is as follows: “Applications to the High Court under
the preceding provisions of this section may be included in the same petition,
and on any application under the preceding provisions of this section the High
Court or, as the case may be, the county court shall make such decree as it
thinks just, and the decree shall he binding on Her Majesty and all other
persons whatsoever, so however that the decree shall not prejudice [*20] any person — (a) if it is subsequently proved to
have been obtained by fraud or collusion; …” The words “shall make such decree as it thinks
just” must, in my judgment, give the court a discretion not to make
any decree if the circumstances warrant, even in a case in which domicile and a
valid marriage are proved, in contrast with section 1 (4) of the Act of 1973
relating to the facts which can be established to present a petition for
divorce which provides: “If the court is satisfied on the
evidence of any such fact as is mentioned in subsection (2) above, then, unless
it is satisfied on all the evidence that the marriage has not broken down
irretrievably, it shall… grant a decree of divorce.” It does not contrast, in my view, with section 13 (1) of the Act
of 1973 which is a specific provision for bars to relief where a marriage is
voidable. The wording is: “The court shall not, in proceedings
instituted after July 31, 1971, grant a decree of nullity on the ground that a
marriage is voidable if the respondent satisfies the court… (b) that
it would be unjust to the respondent to grant the decree.” Although section 45 stems from section 21 (b) and section 188 of
the Judicature Act 1925, through section 17 of the Matrimonial Causes Act 1950
and section 39 of the Matrimonial Causes Act 1965, the words in question do not
seem ever to have been construed by a court, but a somewhat similar provision
in section 24 of the Solicitors Act 1843 that any judge or the Master of the
Rolls “are hereby respectively authorised to make such order in the
matter as shall be just” was considered by the Divisional Court of the
Queen’s Bench in In re Application under the Solicitors Act 1843 (1899) 80 L.T. 720.
Wills and Ridley JJ. held that they were not bound to make any order for a
practising certificate to be granted. Wills J. said at p. 722 that
“just” must mean “that which is right and fitting
with regard to the public interests.” The petitioner argues that once the necessary facts are proved the
only discretion the court has is to make a decree of validity or a decree of
nullity, and that it could cause great difficulty and uncertainty and cost if a
marriage was proved but a decree of validity refused, and it would cause
hardship to “a woman who has been married to a citizen of the United
Kingdom who wants to apply,” as does the petitioner, “under
section 6 (2) of the British Nationality Act 1948.” This argument does
not impress me, and there are several answers to it: (1) if as here the petitioner fails to prove domicile, the valid
marriage will not result in a declaration of validity, and the application must
be dismissed — so much for the “difficulty, uncertainty and
cost argument.” (2) I have always understood that section 45 (1) enables the court
to make a decree declaring a marriage valid but not a decree declaring a
marriage invalid. Invalidity has to be decreed, if at all, by proceedings under
R.S.C., Ord. 15, r. 16, which reads:
[*21]
“No action or other proceeding shall
be open to objection on the ground that a merely declaratory judgment or order
is sought thereby, and the court may make binding declarations of right whether
or not any consequential relief is or could be claimed.” This is inherent in the amendments to the Matrimonial Causes Rules
made in 1976 following the decisions in the Court of Appeal in Eneogwe v.
Eneogwe,
March 5, 1976, Court of Appeal (Civil Division) Transcript No. 94 of 1976 and
of Ormrod J. in Aldrich v. Attorney-General [1968] P. 281, which
amendments are now to be found in the Matrimonial Causes Rules 1977, rr. 109
and 110. See also B. v. Attorney-General (N.E.B. and Others intervening) [1967] 1 W.L.R. 776,
777 where Ormrod J. said: “… in the answer filed on
behalf of the interveners there is a cross-prayer for a declaration that the
petitioner is not the legitimate child of N.E.B., and so, with the consent of
all the parties, despite the fact that the petitioner is not proceeding with
the allegation of his prayer I heard the evidence. I am still very doubtful
whether there is jurisdiction in these circumstances to entertain the
cross-prayer. I am doubtful, indeed, whether there is jurisdiction to entertain
cross-prayers at all in proceedings for a declaration of legitimacy. I suspect
that the correct order in this situation is simply to dismiss the petition.
That, in substance, is the order which was made in Fitzwilliam v.
Attorney-General, The Times, March 15, 1951, at which I have had the advantage of
looking…” I share that doubt. (3) Rule 109 of the Matrimonial Causes Rules 1977 provides: “(1) Where, apart from costs, the
only relief sought in any proceedings is a declaration with respect to a person’s
matrimonial status, the proceedings shall be begun by petition.” It then sets out what the petition shall state, and continues: “(3) Nothing in the foregoing
provisions shall be construed — (a) as conferring any jurisdiction to
make a declaration in circumstances in which the court could not otherwise make
it, or (b) as affecting the power of the court to refuse to make a declaration
notwithstanding that it has jurisdiction to make it.” It would be strange indeed if the court has discretion to refuse
to make a declaration affecting matrimonial status, in that it was unjust to
make it, but not to refuse a declaration of validity of marriage under section
45 in similar circumstances. (4) I find myself unable to understand how section 45 (4) of the
Matrimonial Causes Act 1973 can be brought within the petitioner’s
argument. That subsection reads: “Any person who is domiciled in
England and Wales or in Northern Ireland or claims any real or personal estate
situate in England and Wales may apply to the High Court for a decree declaring
his right to be deemed a British subject.” [*22] (5) A decree subsequently proved to have been obtained by fraud or
collusion shall not prejudice any person: that is section 45 (5) (a) of the
Matrimonial Causes Act 1973 which I have already read. It cannot be the
intention of the statute that a decree must be pronounced (to the permanent
prejudice of the Crown) when, although there has been no fraud at the hearing,
the whole history is of fraud and perjury and the facts to found a decree have
been brought about by criminal acts and offences and a fraudulent, deceitful
course of conduct. Finally (6): in Halsbury’s Laws of England, 4th ed., vol. 16
(1976), para. 1308, p. 878, under the title “Equity,” appears
this statement of the law, with which I entirely agree. “Equity does
not allow a statute to be made an instrument of fraud.” It is unnecessary for me to repeat the Attorney-General’s
catalogue of evils which could flow from the grant of this application. The
applicant admits offences under section 3 of the Perjury Act 1911, by reason of
what happened at the ceremony and by the description in the certificate. These
offences carry a penalty of up to seven years’ imprisonment. They are
serious. She agrees that she attempted to obtain a certificate of
naturalisation by deception. There are false statements contrary to section 28
of the British Nationality Act 1948. There is the forged passport, and offences
under the Forgery Act 1913 in respect of the use of that passport. She obtained
entry by an offence against section 24 (1) (a) of the Immigration Act 1971. She
obtained a driving licence by deception. I do not think it would be just — indeed, in my opinion
it would be utterly unjust — to grant a declaration, even if she had
proved an English domicile, which she has not. Perhaps I am back where I began,
with the maxim which I can now express as: “No woman can take
advantage of her own wrong.” This court should not and cannot further
the criminal acts of this applicant and permit her to achieve an end by the
course of conduct which she has pursued. The petition fails and is dismissed. Declaration refused. |