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Colonial Cases

Phillips v. Phillips, 1914

[marriage in China, validity]

Phillips v. Phillips, otherwise Carey

Probate, Divorce and Admiralty
Bargrave Deane J., 1914
Source: The Times, 31 July 1914

 

PROBATE, DIVORCE, AND ADMIRALTY DIVISION.

VALIDITY OF MARRIAGE IN CHINA.

PHILLIPS v. PHILLIPS, OTHERWISE CAREY.

(Before MR. JUSTICE BARGRAVE DEANE.)

John William Phillips, of Chin Wang Tao, China, a traffic superintendent of the Kailan Mining Administration, petitioned for a declaration that a ceremony of marriage through which he had gone on April 24, 1905, with the respondent Annie Florence Phillips, otherwise Carey, at the mission church hall at Shan Hai Kwan, in his Majesty's Consular District of Tientsin, which ceremony was performed by the Rev. Charles Philip Williams, a clerk in holy orders, in the Anglican Church, was null and void, on the following grounds:-

  1. That no licence was obtained for the celebration of the said marriage and that no notice thereof was given to the marriage officer of the district; that neither the petitioner nor the respondent had at any time appeared before the said or any other marriage officer and made and subscribed in the proper records an oath as to the facts required by Section 7 of the Foreign Marriage Act, 1892; that the mission church hall at Shan Hai Kwan was not the official house of the marriage officer of the district of Shan Hai Kwan, and that the Rev. Charles Philip Williams was not a marriage officer within the meaning of the said Act.
  2. That it the said pretended marriage none of the requirements of the said Act were complied with.

The respondent by her answer said that none of the matters mentioned in paragraphs 91) and (2) of the petition were necessary to the validity of the said ceremony of marriage, and that the said marriage was valid.

The facts of the case appear fully from the affidavits of the petitioner and respondent.

THE PETITIONER'S AFFIDAVIT.

The petitioner in hjis affidavit said:-

  1. I am the petitioner, and reside at the Port of Chin Wang Tao, China.
  2. I was born at Treforest, Glamorganshire.  I have resided for a number of years in China, being engaged while here in the practice of my profession as a railway official.  I am now the traffic superintendent of the Kalian Mining Administration's port.  I have retained my British domicile and in tend to return to reside permanently in England when I have completed my work in the East.
  3. .  .  .  . Shan Hai Kwan is in his Britannic Majesty's Consular District of Tientsin. . . . .
  4.  No licence was obtained for the marriage, but the banns were published at the mission church hall, where the ceremony was performed.  The mission hall is not a consecrated edifice.
  5. No notice of the intended marriage was given to his Britannic majesty's marriage officer of the consular District.  Neither I not the respondent appeared at any time before the said or any other marriage officer, nor did either of us make and subscribe in the proper or any records provided and kept by the said marriage officer or any oath as to the facts as are required by section 7 of the Foreign marriage Act, 1892.
  6. The mission hall at Shan Hai Kwan was not the official house of the said marriage officer.  The Rev. C. P. Williams was not a marriage officer within the meaning of the said Act, and no marriage officer, as required by the said Act, was present at the marriage.
  7.   Some time in 1909 my attention  was called to rumours in circulation in China to the effect that marriages contracted as my marriage had been were not regarded as valid either in China or in England; and I made efforts to ascertain the truth of these rumours.  I wrote first to Mr. L. C. Hopkins, H.B.M.'s Consul-General at Tientsin, and he replied that he was forbidden "to indicate an opinion on then matter," but strongly advised me to go through the marriage again at the Consular Court.
  8. I wrote also on September 28, 1909, to the British Minister at Peking and received a circular dated February 27, 1905. .  .  .  .
  9. There is no issue of my pretended marriage.

The following is the circular referred to by the petitioner:

"Supreme Court, Shanghai, Feb. 27, 1905.

Sir, - As questions have been asked from time to time concerning the validity of marriages solemnized in China at other places than his Majesty's Consulates by clergyman in holy orders, I forward for your information and guidance an extract from a dispatch received from the Foreign Office transmitting an inquiry from one of his Majesty's Consuls concerning certain marriages at his port.  The extract is as follows: -

The Law Officers of the Crown, in giving their opinion on the validity of a certain marriage which was solemnized in 1880 in the cathedral in Shanghai by a clergyman of the Church of England, reported that a marriage between British subjects in Shanghai celebrated there by a clergyman in holy orders (i.e. "per presbyerem sacres ordinibus constitutum'), whether American or English, was a valid marriage.

Nevertheless some doubts are entertained as to the unquestionable validity of marriages of British subjects in heathen countries performed by clergymen in holy orders under certain conditions, and it may be questioned whether such a marriage between British subjects be per se of undoubted validity in a case where, as in the present instance, facilities reasonably sufficient now exist for its legal solemnization under the Foreign Marriage Act and Order in Council, 1892.

In these circumstances Lord Lansdowne does not feel justified in expressing any opinion as to the validity of the marriage in question.

If you are applied to for your opinion with regard to such a marriage you should decline to offer any opinion as to the validity of the marriage, and should suggest that the parties should consult their own private legal advisers in the matter.

You may, however, point out that in all cases where it can be done advantage should be taken of the facilities offered for the legal; solemnization of marriages under the Foreign Marriage Act and Order in Council, 1892.

H. L. WILKINSON.

 

THE RESPONDENT'S CASE.

The material parts of the respondent's affidavit were as follows:

[2].  .  .  I was born at Buckingham in England on February 21, 1886, and I am the daughter of John Henry Carey.

[3] My father is a British subject and has been resident in China for 11 years.

[4] I am a British subject and a member of the Church of England.

[5] In the year 1905 I was living with my father at Shan Hai Kwan, when I became engaged to be married to the petitioner.  The engagement was public, and was known among our friends.

[6] The petitioner is a British subject, and was, I believe, brought up as a Wesleyan, but used to attend the English Church (when he attended any) since he has been in China.  When I met him he was in the employ of the Imperial Railways of North China and was living at Shan Hai Kwan.

[8] In the month of April, 1905, notice of banns was given to Bishop Scott, the Bishop of North China, and out banns were duly published by the Rev. - Sprent, a priest of the Church of England, in Shan Hai Kwan Church, which id owned by the Church of England Mission and is considered as in Neuchwang parish; Neuchwang is distant from Shan Hai Kwan about 200 miles.

[9] On April 24, 1905, a marriage between the petitioner and myself was celebrated in the church hall, Shan Hai Kwan, by the Rev. C. P. Williams, a priest of the Church of England, according to the forma of the Church of England.  I was given away by my father, and a Mr. Lindsay, now in the service of the Chinese Government Railway at Shan Hai Kwan, acted as best man to the petitioner.

[10] A marriage certificate was given to me by the Rev. C.P. Williams.

[13] No suggestion was made by the petitioner that out marriage was invalid until September, 1909, when he wrote several letters to the British authorities at Tientsin and Peking inquiring as to its validity.

Mr. Cecil Walsh, K.C., and Mr. Newton Crane appeared for the petitioner; and Mr. J. G. Archibald for the respondent.

 

THE FOREIGN MARRIAGE ACT.

Mr. CECIL WALSH said that the ecclesiastical authorities attached great importance to the question which arose in the present case - namely, whether a marriage celebrated in China between two British subjects was valid, where neither the provisions of the Foreign Marriage Act, 18902, not the requirements of the lex loci contractus, had been complied with.  In the case of Marshall v. Marshall, a case reported only in The Times of May 8, 1907, and March 10, 1908, a marriage between two British subjects solemnized in Japan before a clergyman of the Church of England was held to be invalid, the marriage being invalid by the law of Japan, and the requirements of the Foreign Marriage Act, 1892, not having been complied with.

Mr. JUSTICE BARGRAVE DEANE. - Is the Foreign Marriage Act, 1892, compulsory on all British subjects who marry abroad?

Mr. WALSH. - No, my Lord.  Section 23 provides that nothing in the Act shall invalidate any marriage which would have been valid apart from the Act.

Mr. JUSTICE BARGRAVE DEANE. - It is obvious in this case that the requirements of the Foreign Marriage Act of 1892 were not complied with.  Is it admitted that the marriage was not valid by the law of China?

Mr. ARCHIBALD. - No, my Lord, that is not admitted.

Mr. JUSTICE BARGARVE DEANE. - What have you to say, Mr. Archibald?  Your difficulty is that it has been decided that the English Ecclesiastical procedure does not apply to foreign countries, and that if the Foreign Marriage Act is not complied with, the only form recognized is that prescribed by local custom.

Mr. ARCHIBALD submitted that though, as a general rule, the lex loci contractus governed the formal validity of a marriage, yet where through a difference of religion and civilization it was impossible for the parties to comply with the ceremonial prescribed by local law, they were entitled to be married in any form recognized by their own law.  The case of Marshall v. Marshall (supra) could be distinguished from the present case. In 1894, by treaty between Great Britain and Japan it was agreed that at the expiration of five years Great Britain should give up its consular jurisdiction in Japan, and since 1895 British subjects in Japan had been subject to the ordinary Japanese law. 

The facts as to China were entirely different.  The order in council of October 24, 1904, constituted in China and Korea a Supreme Court and certain provincial Courts, which had jurisdiction over British subjects, and administered in respect of them, the English law.  Those Courts had jurisdiction in matrimonial causes - except in suits for nullity and jactitation of marriage.

By the canon law, which, apart from modifications introduced by statute, formed the common law of England as regards marriage, any marriage celebrated before a person in orders was valid.  He referred to L'Autour v. Teesdale (8 Taunt., 830); Piers v. Piers (11 H.L.C. at p. 830); George v. Thyer (([1904] 1  Ch., 456); Ruding v. Smith (2 Hagg. Cons., 336); Hall on the Foreign Jurisdiction of the British Crown, pp. 194 and 237; Lateral v. Sweet man (1 Robert, at pp. 320 and 321); Reg v. Millis (10 Cl. and Fin., 534).

Mr. JUSTICE BARGRAVE DEANE drew attention to the fact that although the mission hall at Shan Hai Kwan in which the alleged marriage was celebrated was not licensed for the performance of marriages, yet the copy of the "certificate" was numbered "1" and purported to be "an extract from the Marriage register of the Church Hall, Shanhaikwan, the said Register being legally in my custody.  Extracted this 25th day of July, 1912, By me, Crichton McDonall, Clerk in Holy Orders."

The learned JUDGE inquired whether any subsequent marriage ceremonies had been solemnized there, and said that he wished to know how Mr. Williams came to celebrate a marriage there.

Mr. ARCHIBALD. - I am not instructed, my Lord.

 

A LETTER FROM THE BISHOP OF NORTH CHINA.

"Peking, March 19, 1913. - .  .  .  .  I hasten to reply that the Rev. C. P. Williams was a clerk in holy orders of the Church of England at the time to which you refer - the necessary qualification for the legal performance of this class of marriage - and was also at the time holing my license.  The Church Hall at Shan Hai Kwan was licensed for the Administration of Sacraments and other rites by the Bishop (myself), but so far as my memory goes (I have not a copy of the Act to which you refer) the validity of such marriages as we are considering in no way depends upon place, but only on persons.

Yours faithfully,

C. P. SCOTT (Bishop).

John Philllips, Esq."

 

At this stage the case was adjoiurned over the Long Vacation for the production of evidence as to the license and general circumstances of the Church Hall, Shan Hai Kwan, and whether the marriage was valid according to Chinese law or would be recognized by the Chinese Courts.

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