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PROBATE DIVISION.

37

CHIPCHASE v. CHIPCHASE, OTHERWISE LEETCH, OTHERWISE MATTHEWS.

June "

DivorceNullityUndue publication of bannsMarriage Act, 1823 (4 Geo. 4, c. 76), 5. 22. The respondent, not having seen or heard of her husband since 1916, went through a form of marriage with the petitioner in 1928. She had been known in the district by her maiden name for some years, and she had the banns called in that, instead of her married name, the petitioner being aware of the first marriage and of the respondent's legal name. On a petition by the petitioner for nullity of marriage on the ground of undue publication of banns, it was found that the respondent had the banns called in her maiden name, not because she was known by that name and to give any other would have been misleading, but because it served to conceal the fact that she was already married : Held, that there had not been " due publication of banns " within s. 22 of the Marriage Act, 1823, and that the " marriage " of the petitioner and the respondent was, therefore, null and void.

for nullity of marriage. In 1915 the respondent, whose maiden name was Matthews, married a man named Leetch. In 1916 they separated and the respondent neither saw nor heard anything of her husband between that date and August 11,1928, when she went through a form of marriage with the petitioner at St. John's parish church, Fitzroy Square, London. The banns for that wedding were, to the knowledge of both the petitioner and the respondent, called, not in the respondent's married name of Leetch, but in her maiden name, by which she had been known in the neighbourhood for some years. The petitioner asked for a decree of nullity on the ground that there had not been " due publication of banns " within s. 22 of the Marriage Act, 1823 (1), by reason of the respondent giving her maiden name instead of her married name. The respondent, who by her answer denied the charge, admitted that the banns had been called in her maiden name instead of her legal name, but she pleaded that she had no intention to
PETITION (1) By Marriage Act, 1823, s. 22, if any persons " shall "knowingly and wilfully inter"marry without due publication P. 1942. "of banns or licence . . . . the "marriages of such persons shall " b e null and void to all intents " a n d purposes whatsoever." E 5

38 1941

PROBATE DIVISION;

[1942]

deceive anybody and that her real name was known to the CHIPCHASK petitioner.
V. CHIPCHASK.

C. 0. Herd for the petitioner. There has been a breach of s. 22 of the Marriage Act, 1823, and the petitioner is. entitled to a decree. If, in having banns called, a person tells a deliberate lie as to his status, concealing and cloaking his identity, that is not a due publication under the Marriage Act, 1823. Wright v. Elwood (1) is very near the present case having regard to the submission of Addams and the judgment of Dr. Lushington. In Wiltshire v. Prince (2) it was held that the banns had been published in a manner calculated to conceal, the identity of the parties and the marriage was pronounced to be null and void. In the present case both parties were cognizant of the fraud and intended to conceal the fact that the respondent was married. The prayer book provides that the officiating priest shall say : "If any of you know cause> or just impediment, why these "two persons should not be joined together in holy matrimony "ye are to declare it." If a married woman has passed herself off for years as a spinster and her name is called' in church inthat name, no one can raise^ any just impediment or know of any cause against the marriage. The public have an important right in this matter, the right to inform, and1 what has occurred here is a fraud not only on the Church and the' clergy, but also against public policy. Garland1 (for H. J. Phillimore, on war service)' for the respondent. The respondent had1 reacquired her maiden name by repute, and it was, therefore, her legal name. Consequently, there was no undue publication hy her using her maiden name for the banns. Nor is there any proof of intent to deceive. It would be extending'the range of the authorities to annul' this marriage.
HENN COLLINS J. This ease has had a curious history. The present phase of it is a suit for nullity by the petitioner on (1) (i837)iCurt. 49, 31. (2) (1830) 3 Hagg. Ecc. 332, 334.

P.

PROBATE DIVISION. 1941

39

the ground that the respondent, with whom he went through a ceremony of marriage on August 11,1928, was then a married woman, and it was no marriage, because to the knowledge of both ,the parties, the respondent was married in a name which
r r

CHIPCHASE

rmpv'WASB
Henn Collins J.

was not her lawful name. The petitioner does not pretend that he was in any sense deceived. If fraud there was, he was a party to it, so that when, in answer to a summons for maintenance against him which the respondent took out before magistrates in 1938, he put forward as a defence that which he now puts forward as a cause of suit, one does not feel that his case has any merits. I have, however, solely to consider a question of law as it arises on the facts before me. I think I ought, first, to refer to the earlier history of the case, because the application to the magistrates by the respondent resulted in the case coming before a Divisional Court of which I was a member, and the judgment of the court throws light on the question which I have now to investigate as a question of fact and on the law which I have to apply to the facts when I have found them. The learned President, in dealing in his judgment in that appeal (1) with the construction of s. 22 of the Marriage Act, 1823, said : "The same "appears even more clearly in the judgment of Sir Jenner "Fust in Orme v. Holloway (2), where he says the construction " of this Act is that, in order to set aside a marriage on the "ground of undue publication of banns, it is necessary for both "the parties to be cognizant of the fraud ; it is necessary first "to prove that there has been fraud, and, secondly, that both "parties were cognizant of the fraud and knowingly and wilfully " entering into the marriage without due publication of banns." The case was sent back to the magistrates because the court was of opinion that they had not directed their minds to one possible aspect of the facts, namely, whether the respondent had given her maiden name because she was known among her associates by that name, or whether it was done to deceive or mislead any person or persons into thinking that she was not a married woman.
U) [1939] P- 39i, 397P. 1242. (2) (1847) 5 Notes of Cas. 267. F 5

40 1941

PROBATE DIVISION.

[1942]

Henn Collins J.

Unfortunately t h a t m a t t e r never came before t h e magistrates, t h e summons not being pursued as t h e petitioner h a d ec e CHIPCHASF ^ ^ ^ P r e s e n t petition, a n d it comes before m e for decision as a question of fact. I have t o ask myself which of t h e two J
CHIPCHASE"
^

versions of the facts given by the parties to this suit, in so far as they differ, I accept. I find that the respondent gave her maiden name not because she was known by that name and to give any other would have been misleading, but because it served to conceal, or, at any rate, not to emphasize, the fact that she was already married. The judgment in the Divisional Court (1) indicates that one of the matters which the magistrates were to consider was whether the intention of the wife, in giving her maiden name, was to conceal her identity, and, if I address the same question to myself with regard to the facts I have found, I have first to ascertain what exactly is meant by concealing her identity. She did not conceal her identity from the persons in her parish who knew her by that name, but I think that one of the purposes of the Marriage Act, 1823, would be defeated if it was open to a person to have banns called in a name by which he was known in the parish when the use of his legal name might lead to persons making uncomfortable inquiries. In my view, that is one of the very things against which the Act of Parliament was directed, and, although I do not feel that there is any moral obliquity in this case, there has been an infraction of the statute and this marriage was not a marriage in law. It, therefore, only remains for me to pronounce a decree of nullity.
Decree of nullity.

Solicitors for petitioner : Large & Co. Solicitors for respondent: Wingfields, Halse & Trustram.
(1) [1930] P. 39T. W. L.