England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/07/2011

Mr Justice Floyd:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

7. 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.
8. 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).
9. 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:

i) In Australia, by virtue of section 91 of the Marriages Act 1961, if one of the parents reasonably believed that the marriage was valid, the children were legitimate. For this section to apply either one of the parents must have been domiciled in Australia at the time of the birth.

ii) 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.

10. 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?
11. 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."

12. 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."

13. 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."

14. 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."

15. 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.
16. I heard considerable argument on the question of whether the decision in re Bischoffsheim can be reconciled with the nineteenth century decision of the House of Lords in Shaw v Gould LR (1868) LR 3 HL 55. Romer LJ felt able to distinguish it on a number of grounds, as did Cotton LJ in re Goodman's Trusts. In Shaw v Gould, Buxton, an English rogue, married Elizabeth Hickson, a woman of English domicile in 1828, though they never lived together and the marriage was never consummated. There was a formal deed of separation between them in 1838 after Buxton has served a sentence of imprisonment for fraud. In 1844 Elizabeth received a proposal of marriage from one Shaw, a student of Gray's Inn, training for the Bar. Elizabeth, Shaw and Buxton (after his release from prison) devised a plan under which Buxton would take up residence in Scotland for long enough to equip the Scottish court with jurisdiction to pronounce a decree of divorce. In March 1846 a divorce was obtained, and Elizabeth married Shaw in June of that year in Scotland. Shaw became a Scottish advocate instead. They had three children whose legitimacy was material to their right to take under Elizabeth's uncle's will.
17. The House of Lords decided that the children were not legitimate. The principal focus of the decision was the ability of the Scottish court, in the particular circumstances of that case, to pronounce a decree which would affect the marital status of Elizabeth and Buxton and thus the legitimacy of the children. So, Lord Cranworth stated that the question to be decided was "how far the status of legitimacy or illegitimacy attaching on a subject in this country may or ought to be modified by the laws of another country". He said "The whole … turns on the validity of the divorce." Having decided that the court could not recognise the divorce he said:

"..if the first marriage here was not dissolved there could not have been a second marriage. Till the first was dissolved there was no capacity to contract a second marriage. If after the second marriage Buxton and Elizabeth had again cohabited, and there had been issue, that issue would certainly have been legitimate by the law of England, and it cannot be argued that the issue of both unions could share together."

18. 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"

19. 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".

20. 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".
21. Lord Colonsay expressly recognised that, prima facie, the children of Mr and Mrs Shaw, who had their fixed residence in Edinburgh at the time of their children's birth, were "the lawful and legitimate children of their mother, and it does not appear that their status as legitimate children has ever been questioned in the country in which they were born, and in which their father had his permanent domicile at the time of their birth." He proceeded later, however, on the assumption that "the case depends entirely "on the reception (so to speak) to be given to the foreign decree".
22. 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."

23. 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.
24. 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."

25. 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.

26. 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.
27. The authors of Cheshire & North: Private International Law, 14^th edition also support such a dual domicile requirement: see page 1150.
28. The rule as stated by these authors may be too restrictive. For present purposes it is not necessary to enquire into that question, because even applying this restrictive rule, which I consider is consistent with both cases, Alexander and Ashley acquired the status of legitimacy by reason of the law of the domicile of each of their parents. That is the case whether the 13^th Duke was domiciled in England, in Australia or in California.
29. It follows that I consider that the trustees are entitled under the terms of the settlements to provide for Alexander & Ashley.
30. I have received evidence as to the position under Northern Irish law of the Irish settlements. The expert evidence indicates that the courts of Northern Ireland would be likely to apply Dicey's rule. I cannot provide the trustees with any better assurance that the courts of Northern Ireland would decide the questions of private international law in the same way as I have done. Mr Dumont indicated, however, that the trustees of the Irish settlement would be likely to regard the decision of the English court in relation to the English settlement as sufficient reassurance for practical purposes.
31. It is not therefore necessary to address other arguments touched on at the hearing, concerning whether the approach to construction which assumes that a settlor or testator intends only to benefit legitimate issue and descendants can any longer be justified in the light of the Human Rights Act, in view of the disproportionate discriminatory effect on the illegitimate issue. It is also not necessary for me to express a view whether, in the light of the Legitimacy Act 1959, the settlements could be construed as extending to void marriages as described in subsection (1), whether or not the father was domiciled in England. I therefore say no more about those issues.