BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stein v. Stein and Another [1914] ScotLR 774 (09 July 1914) URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0774.html Cite as: [1914] SLR 774, [1914] ScotLR 774 |
||
[New search] [Printable PDF version] [Help]
Page: 774↓
[
A woman in the knowledge that she was pregnant to a third party went through a form of marriage with a man from whom she concealed her condition and who married her in ignorance of it.
Held that the husband was entitled to have the marriage declared null.
Philip Stein, upholsterer, residing at 2 Buccleuch Terrace, Edinburgh, pursuer, brought an action against Jeanette Ritchie Ramsay or Stein, residing at 3 Viewforth Square, Edinburgh, and against Elizabeth Doris Ramsay or Stein, a child of the said Jeanette Ritchie Ramsay or Stein, defenders, concluding, inter alia, for declarator that a pretended marriage between the pursuer and the first-named defender was null and void, and for declarator that the pursuer was not the father of the second-named defender.
The facts are given in the opinion of the Lord Ordinary ( Anderson), who, having allowed on 13th March a proof before answer and having taken it on 23rd May, on 2nd June 1914 reported the case to the First Division.
Opinion.—“In this action the pursuer avers that on 6th September 1913, in Edinburgh, he went through a form of marriage before witnesses with the defender Jeanette Ritchie Ramsay. On the same date the marriage was registered on the warrant of the Sheriff-Substitute of the Lothians. The pursuer states that the said defender was at the date of the marriage over four months pregnant to another man, but this was unknown to the pursuer, and said defender concealed the fact from him. He alleges that if he had known this he would not have married her. The parties lived together till 6th October 1913, when they separated on account of differences. The pursuer at that time was still unaware of defender's pregnancy. On 13th January 1914 the said defender gave birth to a female child, who is still alive, and who is registered under the name of Elizabeth Doris Ramsay or Stein. This child was a full-time child, and must have been procreated in April 1913. The pursuer states that he only began to keep company with said defender in August 1913, and avers that he is not the father of the said child.
In these circumstances the pursuer on 13th March 1914 raised the present action against the defender, the said Jeanette Ritchie Ramsay, and also against her said child, and he craves declarator (1) that the said pretended marriage was null and void, and (2) that he is not the father of said child.
The summons was served personally on the first-named defender and edictally on the child. No defences have been lodged.
I allowed the pursuer a proof before answer, which I took on 23rd May 1914. I hold on the proof that the pursuer has proved the foresaid averments.
With regard to the second declaratory conclusion I see no reason why the pursuer should not obtain the decree which he seeks. He has proved that the said child is not his, and it seems to me he has an interest to have this fact judicially declared so that he may have an answer ready to any demand which may be made against him for the aliment of that child.
The first declaratory conclusion raises an important and difficult question. In the legal system of this country there is no decided case either for or against the pursuer's contention, while in the institutional writings there are conflicting statements as to the law. In the systems of other countries there is to be found diversity of practice.
The legal principle on which the pursuer bases his claim to have the marriage annulled is that of fraud. The pursuer's counsel did not maintain the general proposition that antenuptial unchastity would afford a ground of nullity. He founded on the special circumstance that the woman was pregnant at the date of the marriage ceremony. He maintained that this was not a case of error as to accidental qualities, but amounted to an error regarding what is essential which had been induced by the fraudulent concealment of her condition by the defender. He contended that if it be necessary to establish error personæ induced by fraud he has done so. He says that the pursuer was under the belief that he was marrying a woman ready to play her part in fulfilling the primary function of marriage, the begetting of children, and he discovered that she was incapable of discharging her matrimonial duty in this respect. On this point a decision of Lord Low's was quoted with effect— Wilson, 1904, 11 S.L.T. 702.
The pursuer's counsel advanced an argument which is peculiarly applicable to Scotland. Referring to Steuart of Pardovan's Collections as to Church Discipline, pp. 240 et seq., he pointed out that antenuptial unchastity may still be visited, under the regulations of Presbyterianism, with ecclesiastical discipline, and that if the pursuer had been a member of a presbyterian congregation he would have been liable to this discipline.
It was further pointed out that if a person in the position of the pursuer makes no challenge as to the paternity of a child borne by his wife shortly after marriage he remains under ignominy as having been antenuptially incontinent, and may be liable to the aforesaid ecclesiastical penance. If he raises the question of paternity and does so successfully, it seems little short of monstrous that he is to be under obligation to continue cohabitation with the woman with whom he has had to contest this point. If the marriage is annulled the father of the child may marry the defender and legitimise the child.
Page: 775↓
I do not propose to attempt to set forth the arguments against the pursuer's contention. Everything that can be urged against this contention will be found in the elaborate judgment in the English case of Moss, to which I shall subsequently make reference.
With regard to authority, in our own system Stair is against the contention of the pursuer—Inst., i, 4, 6, i, 9, 9. Bankton, on the other hand, is entirely in the pursuer's favour—Inst., i, 5, 35, and 36. Bank-ton follows the civilians in the views he expresses, and refers to Voet on the Pandects, ii, 24, tit. 2, and Carpzovius' Ecclesiastical Definitions, p. 228. Lord Fraser does not express an opinion one way or other, but refers to the diversity of practice in different legal systems in Husband and Wife, pp. 451 et seq.
An exhaustive examination of the law of different countries on this point will also be found in the English case of Moss v. Moss, [1897] P 263, in which the President, Sir Francis Jeune, decided that according to the law of England circumstances similar to those of the present case did not afford ground for annulling the marriage.
The impression I have formed is adverse to the pursuer, but I considered it my duty to report the case for these reasons, (1) that there has been no decision in Scotland on the point, (2) that the views of Stair and Bankton are in conflict, (3) that the action is undefended, and (4) that the question of the status of the child is involved.”
Argued for the pursuer—Where a bride was pregnant to another man at the time of her marriage and concealed her condition from the bridegroom he was entitled to have the marriage declared null in respect that it was contracted under essential error induced by fraudulent concealment—Bankton's Inst. i, 5, 35. There was no conflict between Stair and Bankton on the point, as Stair did not deal with pregnancy at the date of marriage but only with prenuptial unchastity—Stair, i, 4, 6, and i, 9, 9. If the husband were denied this remedy, then, failing his adopting the monstrous procedure of litigating a declarator of bastardy with a woman he was bound to live with as his wife, he would incur the stigma of prenuptial incontinence, involving ecclesiastical discipline, he would be bound to maintain the bastard, and a bastard would be foisted upon him which would be entitled to the rights of a lawful child to the prejudice of his own legitimate children. The laws of all modern civilised countries, with the exception of England, provided a remedy in such circumstances. Counsel also referred to the following authorities—Stair, iv, 40, 24; Bankton, i, 5, 35, and 36; Fraser on Husband and Wife, 2nd ed., vol. i, at p. 450 et seq; Oarpzovius, Ecclesiastical Definitions, at pp. 288 and 290; Voet, xxiv, 2, 15; Bishop on Marriage, Divorce, and Separation, vol. i, secs. 484 and 528; Deuteronomy, cap. xxii, verses 13–21; Moss v. Moss, [1897] P 263; Reynolds v. Reynolds, 1862, 3 Allen 605; Harvie v. Inglis, May 20, 1837, 15 S. 964; Wilson v. Horn, February 20, 1904, 41 S.L.R. 312.
At advising—
A proof was led before the Lord Ordinary. He has not pronounced formal findings of fact, but from his opinion it appears that he held the following facts to be proved, viz.—That the parties went through the form of a marriage in Edinburgh on 6th September 1913, that the defender was at that time pregnant to another man of a child which was procreated in April 1913, was born on 13th January 1914, and is still alive, that she concealed her pregnancy from the pursuer, and that if he had known of her condition he would not have married her. The action is undefended. His Lordship has further found facts to be proved which negative any suggestion of condonation on the part of the pursuer. My interpretation of these informal findings is that on or before 6th September 1913 the defender knew, or at least suspected, that she was pregnant, and that she did not in fact believe that the pursuer had any knowledge or suspicion of her condition. In exceptional circumstances a woman might be ignorant of her pregnancy, and might not even suspect its existence, notwithstanding that she was four months gone with child. That might happen in the case of a young and innocent girl who bad been the victim of violence. Again, in exceptional circumstances a woman who knew or suspected herself to be pregnant might believe that the man whom she had promised to marry either knew of the pregnancy or suspected it, and had waived all inquiry on the subject. That might happen if a man chose to marry a woman within nine months of her husband's death, or a woman who had recently and notoriously been leading an unchaste life, or a woman whose appearance suggested that she was either pregnant or suffering from some disease. In the present case no facts have been proved which displace the prima facie inference to the effect that the defender knew or suspected herself to be pregnant on 6th September 1913, and that she did not believe that the pursuer shared her knowledge or suspicions.
Page: 776↓
According to the law of Scotland marriage is something more than a mere contract. Its terms and conditions are regulated by the law and not by the agreement of parties. Once a marriage has been entered into it produces results which are independent of the volition of the spouses, and which may be described as a legal status. None the less it is true that unless there is a valid contract these legal results do no follow. Given the contract, the status follows as matter of necessity. It is universally admitted that a mistake by one of the spouses as to the identity of the other nullifies the contract and therefore the status. The mistake under which the pursuer laboured came as near to being a mistake as to identity as it possibly could without actually coming within that category. There is an obvious difference between marrying a woman who is single in every sense of the word and a woman who is integrally united to another living human being. The idea of sharing his bed with a woman who was pregnant to another man would be repugnant to most husbands. If, however, such a marriage is binding upon a man who has entered into it in ignorance of his wife's condition, he cannot on discovering her condition treat her as one who has been guilty of a matrimonial offence, or who has forfeited her right to share his bed and board and to receive the care and consideration to which her physical condition entitle her. Further, he must make due provision according to his means for her approaching confinement. Though not bound to maintain the child after its birth, unless lucratus by the marriage, or to allow it to reside permanently in his house, he would not be entitled to separate it from its mother unless and until that could be effected without risk of injury to the mother or to the child. Unless his wife was willing to join with him in a conspiracy of silence as regards the existence of the child the unfortunate husband would be subjected to constant humiliation and ignominy. On the other hand, if he made some arrangement which saved his own reputation and his wife's feelings he would incur a serious risk of being held to be the legal father of his wife's child. Though the maxim pater est quem nuptiœ demonstrant does not apply to a child who was not born justo tempore, a presumption of fact might easily arise to the same effect— Gardner v. Gardner, (1876) 3 R. 695, 13 S.L.R. 463, aff. 4 R. (H.L.) 56. All these consequences are so serious and so destructive of matrimonial happiness that I am not surprised that Lord Bankton in his Institute (title v, sections 34–36, vol. i, p. 115) drew a sharp distinction between a case such as the present one and all other examples of error except error as to identity. He says (section 34)—“Mistake in the person no doubt annuls the marriage, unless it is homologated by the party after he is undeceived, which was the case of the patriarch (Gen. xxix, 15 et seq), but a mistake in the fortune or other quality or circumstance not essential to marriage will not give ground for annulling it, because, tho” tis probable, if the party had truly known that circumstance, he or she would not have married, yet it was incumbent upon them to have inquired into these matters, as when a man marries a woman with whom he expected a portion and happens to be disappointed.” Section 35—“But the case is different when a man ignorantly marries a woman that is with child to another at the time, for then it would seem lawful for him to insist that the marriage may be declared void as being fraudulently contracted on the part of the woman. This is conform to the Mosaic law, the civil law, and that of other Protestant countries at this day, and there is little doubt of our following these authorities, strongly founded in the common sense of mankind—(L. 2, sec. 5, ff. de act. empt.; Lewen, lib. i, c. 15, sec. 10; Voet. tit. de divort. sec. 15 [Lib. xxiv, tit. ii, sec. 15]; Carp. Defin. Eccles. 193; Deut. xxii, 20 et seq.); and the presumption is that if the man had known the condition of the woman he would not have married her, and for the most part it is not in the man's power to discover the matter before marriage, nor has one ordinarily any suspicion of that kind; but if he cohabit with her in conjugal society as man and wife after he knows that circumstance he is understood to pardon that offence; in the same manner, as in the case of adultery, when the innocent party allows the defender the dues of the marriage bed, after knowledge of the guilt, he or she cannot insist for divorce.” Section 36–“But the man's having other women with child to him at the time of his marriage gives no ground to the wife for annulling it upon that head, because a breach of chastity in a man before marriage is not so heinous or scandalous as in a woman, nor is there a presumption that the woman would have refused the man on that ground though she had known it.”
It will be observed that Bankton bases his opinion not upon essential error alone but upon fraudulent concealment. As a general rule essential error is not in itself enough, according to Scots law, to nullify a contract. It must further be proved that the error was mutual, i.e., common to both parties, or alternatively, that it was induced by misrepresentations, either innocent or fraudulent, made by the other party to the contract, or that it was induced by fraudulent concealment. The facts in the present case raise no question as to mutual error or as to misrepresentation whether innocent or fraudulent. But they do give rise to the inference that the error was induced by fraudulent concealment, and the Lord Ordinary has found that the pursuer would not have married the defender if he had known of the defender's condition. It seems to me to follow that if this case had related to an ordinary contract in which the
Page: 777↓
Erskine (i, 6, 2) states that “marriage is truly a contract, and so requires the consent of parties, of which infra, iii, 1, 16.” In the later passage he distinguishes between essential error which excludes consent, e.g., error as to the person of the other contracting party, and fraud. He lays it down quite generally that ubi dolus dedit causarn contractui a person “is justly said not to have contracted but to be deceived.” On the other hand, if he had adverted to the point he would doubtless have added that such a contract is not voidable where the rights of bonafide third parties would be prejudiced. For this reason I should doubt whether a marriage like the present one could be annulled after a child had been procreated and born of such marriage, even though the husband had from first to last been ignorant of his wife's pregnancy by another man, and of the subsequent birth of an illegitimate child. Equally, Erskine might have added that a marriage induced by fraud must stand valid if the interests of society would be prejudiced by its rescission. Bell in his Principles (section 1506) insists upon the fundamentally contractual character of marriage, but otherwise does not throw any light upon the resent question. We were referred to a decision by Lord Low in the Outer House— Wilson v. Horn, (1904), 41 S.L.R. 312—where in an undefended action he gave decree of nullity on the ground of “false and fraudulent representations and personation used by the defender towards the pursuer.” If the facts justified the finding that there had been personation, the judgment presents no difficulty; but if the facts amounted simply to fraudulent misrepresentations in regard to the husband's social and financial position, the decision goes further than, as at present advised, I am prepared to follow.
In the absence of legislation, judicial decision, and institutional authority to the contrary in Scotland, the question as it presents itself to my mind is whether there exists any reason arising either from the peculiar character of the marriage tie or from considerations of social policy which makes it imperative to deny to the pursuer the relief to which the ordinary principles of contract
Page: 778↓
The conclusion at which I have arrived conflicts with the judgment of Sir F. H. J eune, President of the Probate, Divorce, and Admiralty Division, in Moss v. Moss, [1897] P. p. 263. He quotes and adopts a dictum of Lord Brougham, concurred in by Baron Parke and Shadwell, V.C., in a case before the Privy Council in 1835, to the effect that according to the law of England a marriage cannot be held void merely on proof that it had been contracted in consequence of false representations, and that no decree of deception would avail unless the party had been deceived as to the person with whom he contracted. In his Principles of Contract, 6th ed., p. 540, note (p), Sir Frederick Pollock referred to this dictum as “one of Lord Brougham's doubtful or more than doubtful generalities.” The learned President also founds upon certain dicta of Lord Stowell in cases before the English Ecclesiastical Courts, and upon a passage from Ayliffe, an 18th century writer upon Anglican canon law. The rest of his opinion consists of a criticism upon the foreign and American authorities which were quoted in support of the suit for nullity. If the President was right, as I assume him to have been, in holding that “the English law of the validity of marriage is clearly defined” any citations of foreign codes and decisions of American Courts were beside the mark. For my own part I attach no importance to such citations except for the purpose of showing that the view contended for by the pursuer is not in conflict with the idea of marriage as understood in other civilised countries. Nor do I attach much importance to the law of England in view of the differences between the two systems as regards marriage. I confess, however, that I have had some difficulty in reaching a conclusion which conflicts with the opinions of eminent commentators on the Roman canon law—a system which, in my judgment, is the foundation of the Scottish law of marriage. I refer primarily to the Roman canon law as it stood before the marriage legislation of the present Pope in the year 1908, and as it was administered by the Pontifical Courts in cases which came before them from countries such as England, Scotland, Norway, Sweden, Denmark, Belgium, Holland, Germany, Canada, and most of the United States of America, in which the decrees of the Council of Trent concerning clandestine marriages had never been promulgated or had fallen into desuetude. I cannot accept the theory contended for by Lord Fraser to the effect that the similarity between the Scottish municipal law in regard to the constitution of marriage as it still exists and the Roman canon law in regard to the same subject as it existed until the recent legislation was due to a blunder on the part of an English Judge. Appeals to Rome from the Scottish Ecclesiastical Courts were abolished in the year 1560, and yet the two systems were remarkably similar as regards the constitution of marriage until the year 1908. Although marriage between Christians is a sacrament according to the canon law, it is a sacrament which depends for its validity upon the validity of the contract. The contracting parties are the ministers of this sacrament, and the officiating priest is present merely as a witness and for the purpose of giving the nuptial blessing. While the canon law in regard to the constitution of marriage was altered in regard to certain countries by the Council of Trent, and as regards most countries by the present Pontiff, these changes do not, so far as I know, affect the present question, which has reference not to the form but to the essentials of matrimonial consent.
The tribunal known as the “Sacra Rota Romana” was re-established in the year 1908, and disposes of a great number of matrimonial cases by way either of opinion or decision. I should have attached importance to an opinion or a decision of a Court composed of lawyers specially conversant with this branch of canon law, but I have been unable to discover any opinion or decision bearing upon the present question either by the Rota or by any earlier tribunal. Undoubtedly,
Page: 779↓
If I am well founded in thinking that as a matter of abstract right no distinction can be drawn in this matter between marriage and any other contract, and that any differences which we are forced to admit must be attributed to expediency, the result at which I have arrived in the present case seems to me unobjectionable from the point of view of good sense and public policy. I accordingly propose to your Lordships that the case should be remitted to the Lord Ordinary with instructions to pronounce decree of declarator as concluded for. The decree will be a decree in absence, and will pass both against the mother, whom I have hitherto called the “defender,” and also against her child. The Lord Ordinary appointed a curator ad litem to the latter, but the curator, acting apparently on the authority of the case of Mackenzie's Trustees v. Mackenzie, 1908 S.C. 995, declined to lodge defences. I do not doubt that he exercised a wise discretion by following this course, because if he had lodged defences on behalf of the child any decree which the Court may pronounce in the present action might have been regarded as a decree in foro.
I accordingly readily concur in the judgment proposed by your Lordships, and in the reasons therefor which Lord Skerrington has stated.
The Court remitted to the Lord Ordinary to pronounce decree of declarator as concluded for.
Counsel for the Pursuer— Ingram— Smith Clark. Agent— Isaac Fürst, S.S.C.
