VP-13-8120.
Decided by Board December 9, 1954.
Marriage — Validity in England when claim to be widower is supported by affidavit and no decree of presumption of death and dissolution of prior marriage obtained.
A person not domiciled in England who entered into a second marriage in that country on September 19, 1953, supporting his declaration that he is a widower by an affidavit in statutory form relating to the disappearance of his first wife in Estonia, is considered to have made a valid second marriage, notwithstanding that he did not obtain a decree of presumption of death and dissolution of marriage under the Matrimonial Causes Act, 1950.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a denial by a district director on March 19, 1954, of a visa petition.
The visa petition was filed by the subject in behalf of her beneficiary husband for a preference quota status under section 203 (a) (3) of the Immigration and Nationality Act. It was denied because it was concluded that the beneficiary was not shown to have been eligible to enter marriage with her at the registrar's office at Derby, England, on September 19, 1953.
The certified copy of marriage shows the beneficiary in this case, a widower, was married to the petitioner in this case, a widow, at the time and place stated. The beneficiary was married at Narva, Estonia, on June 21, 1920. He made a declaration before a Commissioner for Oaths on April 16, 1952, at Kensington, London, England, which sets forth the following:
I, M---- T---- whose present address is 100, Stockbrook Street, Derby, hereby solemnly and sincerely declare as follows:
1. I was born on the 27th January, 1902, in Johvi, Estonia.
2. I married E---- K---- at the Registrar's Office in Narva on the 26th day of March, 1926.
3. I was mobilized on the 2d August, 1944 and was last home on the 22nd August, 1944 which was the last time I saw my wife.
4. Soviet troops occupied Estonia and arrested members of military families and deported them to Russia and I have made all possible enquiries in an effort to trace the wherea its of my said wife but have been unable to ascertain whether she is alive or dead and, therefore, can only assume that she is no longer living.
5. I came to England on the 9th October, 1947 from Germany under the Ministry of Labour "Westward Ho" Scheme.
And I make this solemn declaration conscientiously believing the same to be true and under and by virtue of the Statutory Declarations Act 1835.
Declared at 23, Young Street, Kensington in the County of London this 16th day of April, 1952 Before me,
M---- T----
H.F.D. Bingley, A Commissioner for Oaths.
I hereby certify this to be a true copy of the original Declaration. Dated this 1st day of January, 1954.
(s) H.F.D. Bingley, A Commissioner for Oaths.
It is not alleged that a court decree was sought or procured by the beneficiary here under section 16 of the Matrimonial Causes Act, 1950. Under such proceedings, the court could issue a decree of presumption of death and dissolution of marriage. The district director concluded from some information furnished by the Vice Consul of the British Consulate General's office at San Francisco, California, that the petitioner had not established that the beneficiary in this case was free to enter into a valid marriage subsequent to his first marriage on June 21, 1920.
Halsbury's Statutes of England (2d ed., Vol. 29)
The information given by the above Consulate's office was offered "as a rough guidance" and "does not, by any means, constitute the last legal word on the subject." Accordingly, further inquiry on the subject was sought at the British Embassy at Washington, D.C.
Because of the importance of the subject matter and the bearing it may have on many situations in various cases, the full text of the reply dated November 16, 1954, from the British Embassy will be incorporated here.
Ref: K 161/18
British Embassy, Washington, D.C. November 16, 1954.
DEAR SIR: I am replying to your request for information about the validity of a marriage performed in the Registrar's Office at Derby on September 19, 1953, between a woman who declared herself to be a widow and whose declaration is not in dispute and a man who declared himself to be a widower and who supported his declaration by the production of an affidavit made at London on April 16, 1952, in the form of a statutory declaration but who did not obtain a decree of presumption of death and dissolution of marriage under the Matrimonial Causes Act, 1950.
The question to be answered is whether, assuming the only point at issue to be the man's eligibility to marry, the marriage is valid in the same way as if he had obtained a decree of presumption of death.
It would appear, however, that the question does not arise because the procedure under Section 16 of the Matrimonial Causes Act, 1950, for obtaining a decree of presumption of death and dissolution of marriage is only available to a person "domiciled in England". The widower according to his statutory declaration was born in Estonia and apparently contracted his first marriage there and last saw his wife there in 1944 and did not go to the United Kingdom until 1947 when he entered the United Kingdom under special arrangements made by the Ministry of Labour. It appears that he does not have and never has had United Kingdom citizenship, nor is it likely that he entered the United Kingdom for permanent residence. The conception of "domicile" in English law is clearly distinguished from that of residence. "Domicile" is difficult to define but generally speaking it may be said that every person acquires at birth a domicile of origin which is the domicile of his father at that time. He retains that domicile unless it is proven that he has gone to another country with the intention of remaining there indefinitely. Long residence in a country for the purpose of following an employment is not sufficient in itself to constitute the acquisition of a new domicile. Leaving to one side the question of domicile there has been a case in 1946 before the Probate, Divorce and Admiralty Division of the High Court of Justice in England that settles a similar point. This was Tweney v. Tweney reported in all England Law Reports (1946) page 564. In that case the second marriage took place in England in 1932. The wife had been previously married in 1920. Her husband by a previous marriage had disappeared six months after that marriage and nothing had been heard of him again notwithstanding exhaustive enquiries. The wife was now petitioning for dissolution of the second marriage on the ground of desertion. The Court, therefore, had to decide whether the second marriage was valid, because, if it was not valid, there could, of course, be no question of dissolving it. It was held that
"The petitioner's marriage to the respondent being unexceptionable in form and duly consummated remains a good marriage until some evidence is adduced that the marriage was, in fact a nullity. The position with regard to the evidence is that * * * it is a case in which both sides have done their best to get news of the first deserting spouse and have failed to do so.
Austin, if alive, would now be aged about 48 and it is quite possible that, being a seaman, he may now be dead. The only point which I have to decide is whether this was a good marriage. There is no question that the marriage between the petitioner and respondent was attended by all proper formalities. This Court ought to regard the petitioner, who comes before it and gives evidence of a validly contracted marriage, as a married woman, until some evidence is given which leads the Court to doubt that fact * * *."
Tweney v. Tweney is not quite on all fours with the present case because in 1932 when Mrs. Tweney celebrated her second marriage there was no statutory procedure for obtaining from the Court a decree of presumption of death and dissolution of marriage. This procedure was not introduced until the Matrimonial Causes Act, 1937. However, the Court's reasoning in the judgment in Tweney v. Tweney supports the view that it would reach the same conclusion in favour of the validity of the second marriage in the case about which you have requested information. It is significant that there is no suggestion in the judgment that the introduction of the new statutory procedure affected this aspect of the matter. This view of the effect of Tweney v. Tweney is supported by the editorial note on the case in the All England Law Reports. This note, which although it is not authoritive, represents the opinion of experts, says
"Two courses are open to a married woman whose husband has disappeared, and who desires to marry again. She may proceed under the Matrimonial Causes Act, 1937, s. 8 (now section 16 of the Matrimonial Causes Act, 1950) for a decree of presumption of death and dissolution of marriage, or she may, after making all possible enquiries, remarry, since the Court, in any future proceedings, will regard a marriage contracted with proper formality as binding in the absence of evidence to the contrary * * *".
The fact that the editorial note refers to "a married woman whose husband has disappeared" and not also to a married man whose wife has disappeared, which is the position in the present case, is not significant. In this case I may say there is good authority for regarding the second marriage in the Registrar's Office at Derby on September 19, 1953, as valid under English law.
Yours very truly, W.G.E. Beckmann, (S) W.G.E. Beckmann, H.M. Consul
It appears clear from the foregoing that there is no basis to question the validity of the parties' marriage on September 19, 1953, in these proceedings. Accordingly, the appeal will be sustained.
Order: It is ordered that the order of the district director of March 19, 1954, denying the petition in this case be withdrawn.
It is further ordered that the appeal from the decision of the district director of March 19, 1954, be sustained.
MATRIMONIAL CAUSES ACT, 1950 Preliminary Note: (This Act) consolidates virtually all the former enactments relating to matrimonial causes in the High Court, declarations of legitimacy and validity of marriages and matters incidental thereto.
Presumption of Death and Dissolution of Marriage
Section 16. Proceedings for decree of presumption of death and dissolution of marriage. — (1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may, if he is domiciled in England, present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of the marriage.
(2) In any such proceedings the fact that for a period of seven years or upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.