Hay v Hay (Matrimonial Cause 15/33.) [1934] EACA 27 (1 January 1934)

#### DIVORCE JURISDICTION.

#### Before LUCIE-SMITH, Ag. C. J.

### JOHN WESTWOOD HAY (Petitioner)

$\boldsymbol{v}.$

## HELEN HAY (Otherwise VOSS, Otherwise ROBOTHAM) $(Respondent).$

# Matrimonial Cause 15/33.

- Nullity of marriage—Invalidity of marriage on ground of wilful acquiescence of both parties to its celebration under a falsename—Section 34 $(2)$ $(b)$ of the Marriage Ordinance, Cap. 167 of the Revised Laws. - Held (26-1-34).—That the use by one of the parties to a marriage. of an assumed name or a name obtained by repute does not<br>justify a declaration of nullity under section 34 (2) (b) of the<br>Marriage Ordinance, Cap. 167 of the Revised Laws, unless the use of such name is used wilfully for a fraudulent purpose.

Mathews for Petitioner.

Cap. 167—The Marriage Ordinance follows the Marriage-Act, 1923, section 22.

Submitted that the respondent had no claim to the nameof Robotham which was, in fact, a false name, and that both. parties having knowingly and wilfully acquiesced in the celebration of marriage under that false name a declaration of nullity must be made.

Respondent not represented.

JUDGMENT.—This is a petition for a declaration that the marriage purported to be had between the petitioner and the respondent at Mombasa on the 27-4-33 is void as offending: against section 34 (2) of Chapter 167. The facts as before the Court are as follows:-

The petitioner, an officer in H. M.'s Indian Army, met therespondent early in 1930 on a voyage to India. She was known on board as Mrs. Robotham and on arrival at Bombay was met by Mr. Harry Robotham whom she introduced as her husband. He next saw her in Bombay at the end of July of the same. year. They did not see each other again until April 1933 whenthey met by arrangement at Mombasa. Between July 1930. and April 1933 there appears to have been a somewhat desultory correspondence between them. In June 1932 the respondent cabled the petitioner from Johannesburg asking for money which he remitted to her in the name of Mrs. H. P. Robotham and:

that money was duly collected by her. Subsequent to that petitioner proposed marriage and they agreed to meet and get married in Mombasa. Petitioner arrived in Mombasa before the respondent and before her arrival gave the notice of marriage requisite under section 7 of Chapter 167. On the day before the marriage was to be had petitioner swore an affidavit as required by section 11 of the Ordinance. This affidavit I find was sworn in good faith. On the evening before the marriage the respondent told the petitioner that she had never been married to Harry Robotham but had only been living with him. She told him her real name was Voss. She said she was the divorced wife of one B. E. Voss.

Without altering the affidavit which he had sworn giving the respondent's name as Helen Robotham the parties went through a form of marriage on $27-4-33$ .

The petitioner now asks the Court for a declaration that such marriage was null and void as both parties knowingly and wilfully acquiesced in its celebration under a false name.

Section 34 $(2)$ $(b)$ is based on the English Marriage Act of 1823, section 22, in so far as the giving of a false name amounts to an undue publication of banns.

Now it is undoubtedly the policy of the Courts to declare whenever possible in favour of the validity of a marriage and that being so one must very carefully examine the wording of the section relied on. There is no doubt that both parties acted "knowingly" but what is the meaning of the word "wilfully" used in the section?

Chambers' Dictionary defines "wilful" as "governed only by one's will; done or suffered by design; obstinate." While one of the synonyms given by Webster is "perverse".

Chambers defines "Perverse" as "obstinate in the wrong; -stubborn; vexatious; self-willed"; and Webster: "wilfully erring; wicked; obstinate in the wrong; stubborn; intractable".

Stroud's Judicial Dictionary (2nd Ed.): "Wilfully means deliberately and intentionally". So wilfully disobeying a judgment or order means an intentional disobedience; A. G. v. Wal*thamshow*, $(11 \text{ T. L. R. } 583)$ .

It appears to me that the use of the word "wilfully" in the section means an intentional flouting of the law: a deliberate and defiant course of action with perhaps some ulterior motive. or design in view. This opinion is borne out by that line of cases where there have been clandestine marriages or false names have been deliberately given with the intention of concealing the intended marriage from parents, guardians or relations: Brealy, falsely called Reed v. Reed (103 E. R. 601); Templeton v. Tyrce and Templeton, falsely called Tyree (L. R. 2 P. & D. 420);

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Gompertz v. Densit (L. R. 13 Eq. 369). Eversley, in his volume on Domestic Relations (4th Ed.) states at p. 52: "It is possible, however, that a person may have assumed another name so as to bring it within the description required by the Statute. A person may take any surname, and even Christian name, he likes, and the law will recognize it, and neither Royal Licence nor Act of Parliament is necessary to sanction the change; and when the name has not been assumed for any fraudulent purpose, or for the occasion of the publication, banns may lawfully be published in that assumed name." $R$ , $v$ , $Bil$ linghurst (105 E. R. 603.) I would also refer to Clowes v. Clowes, (163 E. R. 697)—that was a "licence" as opposed to a "banns" case, but it appears to me to be of assistance as to what should be the ratio decidendi in this class of case.

Eversley continues: "A name too may be acquired by repute, and where the name so acquired is better known than the true name of the party, that is the proper name in which publication should be made ... but the name must be so acquired by repute as to obliterate the true name".

It was laid down by Lord Tenterden in $R$ . v. Tibshelf (109) E. R. 758), that if both parties are cognizant of undue publication it is immaterial whether the misdescription has arisen from accident or design or whether such design be fraudulent or not.

In the light of later authorities it would appear that the law is not absolutely clear on the point whether or not, if two parties, both of full age, without the intention of committing fraud, choose to get married after publication of banns in a name or names which is or are not their true name or names, this marriage will he held null and void. Holmes v. Simmons (L. R. 1 P. & D. 523). would appear to support such a proposition, while Midgely $v_r$ Wood (30 L. J. P. M. & A. 57), is against it.

In the present case the variation in name is only partial— Helen being the respondent's christian name and Robotham the name she was known by to the petitioner and presumably to the authority in Johannesburg who paid her the money remitted to her by the petitioner; also presumably to certain steamship companies and the passport and immigration officials of India, South Africa and Kenya. Where the variation is partial, it is always open to explain the supposed misdescription, and then the presence or absence of fraudulent intent and motives of the parties becomes of marked importance. The authority for that proposition is given as Pouget v. Tomkins (1812, 2 Hag. Con. 143), but I have been unable to secure the report.

In England there is marriage by banns and marriage by licence, while in this Colony we have marriage by notice to the Registrar and by Governor's licence.

I do not think that notice to the Registrar can in any way be compared to banns in respect of the notoriety thereby obtained and am therefore of opinion that we may in this Colony with a certain amount of safety follow the decisions in English "Licence" cases.

In this connection I would again quote from EVERSLEY at p. $58$ : "The difference of ideas as to notoriety associated with banns and licences has rendered necessary in the case of the latter much less strictness in the accuracy of the names of the parties; accordingly, a false Christian name or surname in a licence does not render the marriage celebrated on it void (Rex v. Burton-upon-Trent, 3 M. & S. 537); so a mere misdescription. unless fraudulent, will not invalidate a marriage, for "in licences the identity is the material circumstance to which the Court principally looks". (Ewing v. Wheatley, 2 Hag. Con. Rep. 175, 184.) Thus, where a man was described in a licence (not for purposes of fraud) as having two Christian names more than he really had, the marriage which took place on the licence was held valid (Haswell v. Haswell and Gilbert, 51 L. J. P. D. & A. 150); and a partial departure from the true name of one of the parties to a marriage in a licence obtained in the altered name by the other party, though for the purpose of concealing the intended marriage, has been held to be no cause of nullity, if the altered name may represent the person, and if the licence had been obtained for and by the direction of that person. $(Bevan$ falsely called McMahon v. McMahon, 30 L. J. P. M. & A. 61)."

Finally, it appears to me that this petition goes very near to an abuse of process of the Court. If two persons decide to get married and by knowingly making a false declaration of their name or names can as of right have that marriage declared null and void it appears to me to be perilously close to the introduction of that system propounded by the American Judge Lindsay under the name of "Trial Marriages" and might have disastrous results for any children conceived of such marriages. For the above reasons and while making no finding as to the validity or otherwise of the marriage of the petitioner and respondent I feel that the declaration asked for should be refused.

Petition dismissed. No order as to costs.