[2004]JRC101A
royal court
(Family Division)
8th June 2004
Before: |
M. C. St.J. Birt, Esq., Deputy Bailiff, sitting alone |
Between |
JJL |
Petitioner |
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And |
LAH |
Respondent |
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Petitioner is Respondent's stepson. Whether marriage ceremony entered into by parties in Las Vegas has or has not resulted in their being lawfully married. Capacity to marry governed by law of each party's antenuptial domicile (Jersey). Marriage predated 1st May 2002 and therefore governed by Marriage (Prohibited Degrees of Relationship) (Jersey) Law 1949. Marriage void under that Law.
Advocate M. J. Haines for the Petitioner.
Advocate A.D. Hoy for the Respondent.
judgment
Deputy bailiff:
1. This application raises the question of whether the marriage ceremony entered into by the parties in Las Vegas has or has not resulted in their being lawfully married.
The facts
2. On 11th December 1990, at the Office of the Superintendent Registrar, St Helier the Respondent was married to JRL ("the former husband"). They subsequently had three children. The petitioner is the son of the former husband by a previous marriage. He was therefore the Respondent's stepson.
3. In 1991 the Petitioner, then aged 17, came to Jersey from France where he had been living with his mother following the break up of her marriage to the former husband. He stayed for a short holiday. The next year he came to live with the Respondent, the former husband and their children. Not long afterwards the relationship between the Respondent and the former husband broke down. Subsequently there were divorce proceedings and this Court pronounced a decree absolute in respect of the marriage of the Respondent and the former husband on 18th January 1995.
4. In the meantime the Petitioner had begun a relationship with the Respondent. They had two children born respectively on 28th April 1995 and 10th September 1996.
5. On 12th August 2000, while on holiday in Las Vegas, Nevada in the United States, the Petitioner and the Respondent were married. Sadly that marriage did not last and they separated in June 2002. On 14th April 2004 the Petitioner instituted divorce proceedings. The Greffier subsequently referred to the Court the issue of whether, in the light of the fact that the Petitioner was the Respondent's stepson, the marriage is void under Jersey Law.
The law
6. In matters of private international law, the Jersey Courts look to English law for guidance. Dicey & Morris (12th Ed'n) at p671) states that, as a general rule, capacity to marry is governed by the law of each party's antenuptial domicile. It goes on to say that a marriage is invalid when either of the parties lacks, according to the law of his or her antenuptial domicile, the capacity to marry the other. The rule so stated in Dicey & Morris was approved by the English Court of Appeal in R -v- Brentwood Superintendent Registrar of Marriages ex.p Arias (1968) 2QB 956 at 968.
7. The parties agreed and the Court is satisfied that, at the time of the purported marriage in August 2000, both parties were domiciled in Jersey. It follows that, in order for the marriage to be valid, the Petitioner and the Respondent must be recognised by the law of Jersey as having had the capacity to marry each other in August 2000.
8. The legislation which currently governs questions of capacity to marry is the Marriage and Civil Status (Jersey) Law 2001, which came into force on 1st May 2002. Article 4 of that Law provides that a marriage between a man and his father's former wife and a marriage between a woman and her former husband's son is void unless both parties at the time of the marriage are of full age and the younger party has not at any time before attaining full age lived as a child of the family in relation to the other party. Were that the governing statute, the Court would have had to have investigated the degree to which the Petitioner had lived with the family of the Respondent and the former husband before attaining full age.
9. However the 2001 Law does not apply to marriages entered into before 1st May 2002 and such marriages continued to be judged according to the previous statute, namely the Marriage (Prohibited Degrees of Relationship) (Jersey) Law 1949 (see para 2 of Part I of Schedule 3 of the 2001 Law). Article 2 of the 1949 Law provides that it shall not be lawful for a man to marry his stepmother or for a woman to marry her husband's son and that any such marriage shall be void and of no effect. The interpretation clause at Article 1(2) makes it clear that this covers a former stepson and the son of a former husband.
10. It follows that, under Jersey law, notwithstanding that the ceremony was in Las Vegas and was no doubt formally valid according to the law of Nevada, the marriage ceremony on 12th August 2000 was void and of no effect and the Court so declares.
Authorities.
Dicey & Morris (12th Ed'n) at p671.
R -v- Brentwood Superintendent Registrar of Marriages ex.p Arias (1968) 2QB 956 at 968.
Marriage and Civil Status (Jersey) Law 2001.
Marriage (Prohibited Degrees of Relationship) (Jersey) Law 1949.