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Colonial Cases

Marshall v. Marshall, 1907

[marriage - divorce]

Marshall v. Marshall and St Clair

Probate, Divorce and Admiralty
Bargrave Deane J., 1907
Source: The Times, 8 May 1907

 

PROBATE, DIVORCE, AND ADMIRALTY.

(Before Mr. JUSTICE BARGRAVE DEANE.)

MARSHALL v. MARSHALL AND ST. CLAIR.

This was the petition of Charles William Marshall for the dissolution of his marriage with Kate Saville Marshall nee Corfield, on the ground of her adultery with Charles Clarence St. Clair.

Mr. WILLIAM RAYDEN said that the parties had been married on October 24, 1899, at St. Andrew's Church. Tokio, Japan, by the Rev. William Awdry, Bishop of South Tokio, according to the rites of the Church of England, and a certificate of the marriage had been obtained from Somerset House, being a "certified copy of an entry occurring in a Register Book of Miscellaneous Foreign Marriages, (Vol. 3, 1896-1900) deposited in the General Register Office, Somerset House, London."

The parties had known each other in England, and after the petitioner had gone to Yokohama in business, the respondent went out, and they were married in Japan.  The marriage was not a happy one, owing to the respondent's intemperate habits, and in June, 1900, he brought her back to live with his parents in England.  Subsequently, in January, 1902, she re-joined him in Hong-kong, but her habits had not improved, and in July, 1902, they separated, and a deed of separation was subsequently executed in November 7, 1902, which was signed by the parties, and also by the co-respondent, as trustee for the respondent, he being represented by her as an old family friend. On the execution of the deed the petitioner paid his wife $600 in cash and her debts.  Shortly afterwards he read in the China Mail of November 13, 1902, in the list of departures per S.S. Hupeh, for Shanghai, the names of "Mr. and Mrs. C. C. St. Clair," and on his return to England in October, 1906, he made inquiries concerning his wife at Whitstable, and filed his petition for divorce. 

The day after they sailed from Hong-kong the co-respondent wrote as follows to the respondent's sister in Whitstable:

"S.S. Hupeh, at sea, Nov. 14, 1902.

My dear new Sister, - Kitty (the respondent) has asked me to write you a few lines about myself .  .  .  .  I am a Yankee and a pugilist .  .  .  .  a man who fights for money with his fists.  In England men of that class are looked down upon, but in America it is considered and honourable profession, and a well-paying one too, in fact it pays better than any other that I know of.  .  .  .  I met your dear sister in Hong-kong and it was a case of love at first sight, and, like all Americans who make up their mind to have anything, I laid violent siege to your sister's heart, and, as they say in America, I 'won out.' .  .  .  .Our marriage has not altered my plans. .  .  .  .I am the champion middle-weight of the eastern portion of the United States - a middle-weight means a man who weighs 158lbs.  I am 5ft. 10in. in height, and when not in training for a fight weigh about 170lbs., dark, with black hair and eyes, clean shaven, and Kitty says very handsome, but I think there is something the matter with both her eyes. .  .  .  . I am anything but poor; we are bringing lots of pretty things from China and Japan.  Well, I've said enough, I guess, which is an Americanism.  Your loving brother, CHARLES CLARENCE ST. CLAIR.

P.S. We are sending out cards."

Evidence having been given in support of the petition, showing that in February, 1905, the respondent and co-respondent had been living in Whitstable, stating that the respondent had divorced the petitioner and had married the co-respondent.

Mr. JUSTICE BARGRAVE DEANE intimated that he was satisfied that the adultery was proved, but, in his opinion, the validity of the Japanese marriage had not been established.

Mr. RAYDEN. - The certificate from Somerset House, I submit, establishes that.  It shows a marriage celebrated according to the rites of the Church of England by an Anglican Bishop.  Not being a Consular marriage it falls within the decision of "R. v. Millis" (10 Cl. and Fin., 534; and 8 Jur., 717).

Mr. Justice BARGRAVE DEANE. - How do I know that it was a valid marriage in Tokio according to the law of Japan?  The case of "R. v. Millis" does not apply.  You must call some one who is acquainted with the law of Japan to prove the marriage was a valid one.

Mr. RAYDEN. - Japan is a heathen and not a Christian country, and I should submit "R. v. Millis" covers this case.  The officials at Somerset House do not know where the entry comes from, and suggest it is made under the Canon Law.

Mr. JUSTICE BARGRAVE DEANE. - Then you had better look up your Canon Law! (Laughter.)  The case must be adjourned until you have satisfied me as to the validity of this marriage.  Although I happen to know the Bishop, I have no "official knowledge" of the validity of his acts.

 

Source: The Times, 10 March 1908

PROBATE, DIVORCE, AND ADMIRALTY DIVISION.

(Before Mr. JUSTICE BARGRAVE DEANE.)

MARSHALL V. MARSHALL, OTHERWISE CORFIELD.

Japanese Marriage Law.

This was a petition for a declaration that a marriage contracted in Japan was null and void on the ground that it had not been registered as required by the law of Japan.

Mr. FRAMPTON said that the petitioner, Charles William Marshall, went through a ceremony of marriage with the respondent, Kate Saville Corfield, at St. Andrew's Church, Tokio, on October 24, 1899, the ceremony being conducted by Dr. Awdry, the Anglican Bishop of S. Tokio.  The parties lived unhappily together, and on January 2, 1907, the petitioner filed a petition for the dissolution of his marriage on then ground of the respondent's adultery with Charles Clarence St. Clair.  That perdition came on for hearing on May 6, 1907, and the Court was satisfied that the adultery was proved (vide The Times, May 8, 1907), but adjourned the case for proof of the validity of the Japanese marriage.

Inquiries made with that view revealed the fact that the marriage was not registered according to the requirements of the law in Japan, and that before July, 1899, the fiction of extra-territoriality applied, which enabled British subjects to be married according to the rites of their own religion, and that such marriages were recognized by the Japanese Courts.

On July 16, 1894, a treaty contracted between Great Britain and Japan abolished that fiction, and that treaty came into operation on July 16, 1899, and it then became necessary to register such marriages.  This necessity was overlooked by every one at the time of this marriage, and, although it was celebrated by the Bishop of S. Tokio at St. Andrew's Church, it was nothing more than a religious ceremony and had no legal effect, ass Article 775 of the Japanese Civil Code made it incumbent on the parties themselves and two witnesses to register the marriage at a Japanese Registry in order to make it valid in Japan, and no such registration had in fact taken place.

n these circumstances leave was given by his Lordship on July 15, 1907, top amend the petition for the dissolution of marriage to one for a declaration of nullity.  The petitioner's solicitors had been in communication with the incumbent of St. Andrews Church, Tokio. Who stated that this marriage was the only one solemnized in St. Andrew's Church between October 30, 1898 - when the fiction of extra-territoriality obtained - and May 15, 1901; and also with Sir Claude MacDonald, the British Ambassador at Tokio, who had interested himself in the matter.

Mr. JUSTICE BARGRAVE DEANE. - I have received a letter from Dr. Awdry in which he tells me that there are over 40 marriages affected by this law, and that he has brought the matter before the government with a view to having a special Act passed.  But that will not affect this marriage.

Mr. Joseph Henry Longford, a member of the British Bar, said that he had served 33 years in his Majesty's Consular Service in Japan, and had been Consul and Judge in various Consular Courts in that country.  For a marriage to be valid in Japan it was necessary for both parties to attend with two witnesses before a registrar to register the marriage.  If that formality were omitted, the marriage was not a valid one.  Section 775 of the Japanese Civil Code read as follows: -

Marriage takes place when notice of the fact is given to a registrar.  Such notice must be given by both parties and by two witnesses who are of age, either verbally of by a document bearing the signature of all."

And section 778 provides that "a marriage is regarded as invalid  .  .  .if the parties do not give notice."

Further evidence by declaration before the Acting British Consul-General at Yokohama to the effect that no registration of the marriage had taken place having been given,

Mr. JUSTICE BARGRAVE DEANE said that originally the case came before him as a petition for dissolution of marriage, and at the trial a certificate was produced which purported to prove that Dr. Awdry had celebrated the marriage; but it had been necessary to adjourn the case for the attendance of an expert witness to prove the foreign law.  Before the treaty this marriage would have been a valid one, but since July 16, 1899, a new law came into operation which provided that these marriages were only valid if they were followed by registration.  Here there was no registration, and the marriage was an invalid one.  Therefore the petition for dissolution failed.  He had given leave, however, to amend the petition to one for nullity.  That petition had been duly served, and no appearance had been entered, and he was satisfied that a decree for nullity must success on the ground that no legal marriage had taken place.  He hoped that there were no children.

Mr. FRAMPTON. - No, my Lord, there are none.

Mr. JUSTICE BARGRAVE DEANE. - With regard to the application for curtailing the time between decree nisi and decree absolute, the petitioner's advisers must communicate with the King's Proctor, and, if there were no objection, he (the learned Judge) could deal with that matter later on.  There would, therefore, be a decree nisi of nullity.

Judgment accordingly.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School