Bigamy and Legitimacy Live Together in Perfect Harmony...?
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legal, business and personal issues they face on a daily basis.<> About us : Briefings : Bigamy and legitimacy live together in perfect harmony...? Duchy of Manchester English and Irish Settled Estates (Green v Montagu) (Chancery Division) 19 July 2011 It is not often that lawyers get a cross-jurisdictional case involving bigamy to sink our teeth into. And the rules on legitimacy of children and, consequently, their entitlement to benefit under certain settlements will be of interest to trustees. Some trustees may even be surprised to learn that a child may still be regarded as legitimate even if he/she is the product of a void marriage. The background This was a case in which English, Australian and Californian rules on legitimacy were all of relevance. The trustees of the settlement sought directions of the court as to whether they could benefit two children of the 13th Duke of Manchester, who were the products of his bigamous marriage in California in 1993. The Duke had, in fact, previously married another woman in Australia in 1984 and unfortunately did not divorce her until 1996. This fact did not come to light until June 2009, two years after the Californian “marriage” was dissolved in August 2007. The trustees ceased to provide maintenance for the children in light of these developments. The settlement was created before the introduction of the Family Law Reform Act 1969 (which effectively reversed the old common law definition of "issue" and brought it rather belatedly into the 20th century). That meant that the common law position still applied to the settlement (as it does for all pre-1970 settlements), i.e. that the terms "issue" and "descendants" only include so-called "legitimate" children. In order to determine whether the Duke's children could benefit under the settlement, the trustees needed to know whether or not the children of void marriages would be "legitimate" in the eyes of the law. The answer to that question depends on how the countries of the parents' domiciles view the concept of legitimacy. Judgment Fortuitously (some may think) for Mr Justice Floyd, it was not necessary on the facts for him to determine where the Duke’s domicile lay, given that the children would have been considered legitimate in all three of the relevant jurisdictions. If the father were domiciled in England at the time of the birth, then, according to the Legitimacy Act 1959, the children would be legitimate if, at the time of the intercourse resulting in the birth, both or either parent reasonably believed the marriage was valid. According to Australian law, if one of the parents were domiciled there at the time of the birth and one of the parents reasonably believed the marriage was valid, then the children would be legitimate. Given that the Duke’s wife clearly had reasonably believed that the marriage was valid, the children satisfied the legitimacy test in both England and Australia. The Californian test was even more easily satisfied as, there, the children of any void marriage were considered to be legitimate. (Therefore, the children were also legitimate according to the mother’s domicile of origin, which was in California.) Domicile and Legitimacy On these facts, the court did not need to tackle the thorny issue of whether a child born outside lawful wedlock would be legitimate if he satisfied the requirements of legitimacy in one of his parents’ countries of domicile but not the other. However, Mr Justice Floyd gave a strong indication that such a child could be legitimate when he said that the rule that a child born outside lawful wedlock is legitimate in England only if he is legitimate by the law of domicile of each of his parents at the date of his birth “might be too restrictive”. 1 In such a scenario, it is possible that the English courts would give more weight to the domicile of the mother, given that in England the domicile of origin of a child born outside of a valid marriage is determined by reference to the mother’s domicile. By contrast, however, pre-eminent texts on the subject 2 support an interpretation of the case law 3 that a child must satisfy the requirements of legitimacy in both his/her parents’ countries of domicile. The law of domicile may well need to be amended at some point so as to resolve such issues. Another possibility is that the application of the Human Rights Act 1998 in such cases could result in a finding that the present rules have a disproportionately discriminatory effect on illegitimate children. Unless and until the law is clarified, we venture to suggest further litigation concerning this controversial issue seems inevitable. To discuss any of the points raised in this update, please contact Alexis Hille ([email protected]), Annmarie Gosling ([email protected]) or your usual contact at the firm on +44 (0)20 3375 7000. This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances. .