Dancer v Dancer, (Hare intervening; Marsden cited)

Probate, etc. Division of the High Court
28^th, 29^th, 30^th June & 1^st July, 1948

Before (the judges sitting on the bench)

• Mr Justice Ormerod 

Counsel (the barristers representing the parties)

• T. Simpson Pedler for the wife, Jessamine Dancer (the Petitioner)
• D. Armstead Fairweather for the husband, George Alexander Dancer (the Respondent)
• Kennedy Kisch for Marsden, the party cited

Summary of the facts

Jessamine Dancer (“the wife”) was born in 1904 and as the legitimate daughter of Mr and Mrs Knight.  She was christened Jessamine and registered in the name of Jessamine Knight.  Her parents later became estranged, and when she was about three years old, her mother started living with a man whose name was Roberts, and lived with him as his wife until his death in 1921, also having five children by him.

The wife was brought up as the child of Mr Roberts and was always known by the name of Roberts.  Only after Mr Roberts’s death was she told that Mr Roberts was not in fact her father, as she had always believed to be so — and that her real surname was Knight, not Roberts.

George Dancer (“the husband”) and the wife were married in 1924.  Before the marriage she told him that her real name was Jessamine Knight, after which they together consulted the vicar about the matter — laying all the facts before him — and asked his advice.  The vicar advised her to have the banns called in the name of Roberts, so as to avoid any misleading of the public, who might not recognize who was to be married if the banns were called in the name of Knight (according to s. 7 of the Marriage Act, 1823).

The wife petitioned for the dissolution of the marriage to the husband on the grounds of his alleged cruelty and adultery, and in her petition referred to herself as having been “Jessamine Roberts, spinster” at the time of the marriage.

The husband denied the alleged cruelty and adultery in his answer.  Furthermore, although he confirmed that “a ceremony of marriage was celebrated between the petitioner and the respondent as alleged in para. I of the petition” (wherein the formalities as to the marriage ceremony were recorded), he denied that the ceremony constituted a valid marriage, due to the banns of marriage — to the knowledge of the husband and the wife — being published in a false name; that is to say — the name of the wife was not Jessamine Roberts but “Jessamine Knight”.  The husband thus claimed a decree of nullity on these grounds.  In the alternative, the husband alleged adultery on the part of the wife, and prayed for a decree of divorce.

Judgment

Mr Justice Ormerod —

The question which I have to decide is whether there has been any breach of the provisions of s. 22 of the Marriage Act, 1823, on the grounds that the banns had not been duly called.  That section is quite clear in its terms, in that it provides that a marriage shall be null and void to all intents and purposes whatsoever, if the parties shall knowingly and wilfully intermarry without due publication of banns.  By s. 7 of the same Act it is provided that before the banns shall be published the parties shall cause to be delivered their true Christian names and surnames, and certain other particulars.

The contention of counsel for the husband, as I understand it, is this: “The true Christian name and surname” can only mean in this case the surname which the petitioner acquired at birth by reason of her parentage and the Christian name she acquired by subsequent baptism and registration; that under those circumstances she knew her true Christian name and surname, her prospective husband also knew her true Christian name and surname, and if they allowed the banns to be published in any other way there was no due publication of the banns.  It is argued that if that did happen, and they allowed the banns to be published in any other way, they did it knowingly and wilfully and, in those circumstances, the marriage must be void.  That is, as I understand it, the argument for the husband: that whether or not there was any intention of concealment on the part of the petitioner and respondent at the time they published the banns is a matter which is immaterial; that there has in fact been a breach of the statute and, in those circumstances, the marriage must be void.  Counsel for the husband cited a substantial number of authorities, which, he says, purport to bear out that view.  I think that I must adopt the reasoning of Lord Merriman P.  in the case of Chipchase v Chipchase [1939] P. 391.  That case was an appeal to the Divisional Court from a decision of justices.  The question arose whether the marriage was null and void by reason of the fact that the wife had given a wrong name to the knowledge of both parties when she published the banns.  In that case she gave her maiden name, although in fact she had been married, and she also stated that she was a widow.  When it came before the Divisional Court on appeal from the justices, the learned President sent the case back for further inquiry.  In his judgment he referred to the words of s. 22 of the Marriage Act, 1823 and said ([1939] P. 391, 397): “The wording of the Act is: ‘Provided always, that if any persons shall … knowingly and wilfully enter into marriage without due publication of banns or licence the marriage of such persons shall be null and void to all intents and purposes.’  It is required by s. 7 that the true Christian names and surname shall be given to the parson for the purpose of publication of banns.  As a matter of history, the cases to which our attention has been called, Rex v The Inhabitants of Tibshelf (1830) 1 B. & Ad. 190 and Rex v The Inhabitants of Wroxton (1833) 4 B. & Ad. 640, show quite plainly that the words ‘knowingly and wilfully’ were deliberately introduced into s. 22 of the Act of 1823 in order to mitigate the hardship which had arisen under the earlier Act and was exemplified by the case of Rex v The Inhabitants of Tibshelf (1830) 1 B. & Ad. 190 — namely, that it was quite immaterial whether the falsity in the declaration had arisen by accident or design and whether such design were fraudulent or not …  The same appears even more clearly in the judgment of Sir Jenner Fust  in Orme v Holloway (1847) 5 Notes of Cas. 267, 271, 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 a fraud, and, secondly, that both parties were cognizant of the fraud and knowingly and wilfully entered into the marriage without due publication of banns.”

Henn Collins J. was also a member of the court, and he agreed with the reasoning of the learned President.  The case of Chipchase v Chipchase [1942] P. 37 came before him in the Divorce Court in 1942, when he in fact granted a decree of nullity.  As I read that case, the reason for his so doing was that he found as a fact that the respondent gave her maiden name not because she was known by that name and that to give any other name would have been misleading, but because it served to conceal, or at any rate not to emphasize, the fact that she was already married.  In other words, Henn Collins J., when dealing with that case on the petition for nullity granted a decree of nullity because he found as a fact that the reason why the respondent gave her maiden name was the reason of concealment — or, stated another way, she did not give her maiden name for the purposes of avoiding concealment — and that under those circumstances there was an infraction of the statute.

In the present case I am satisfied on the facts that the petitioner, when she went to the vicar and gave the name by which she had been known since the age of three, and explained the facts in full to him, did it deliberately, not in any sense for the purpose of concealing her origin or of concealing her identity but for the purpose of avoiding concealment.  She adopted the advice of the vicar, which was: “If you give the name of Knight, no one will know anything at all about you.  If you give the name of Roberts, which is the name by which you have always been known in this parish and everywhere else, then everyone will know who it is who is being married.”  On that advice and, as I find, with the intention of avoiding any form of concealment, she allowed her name to go forward in the banns as Roberts.  In those circumstances, if I adopt the reasoning of the learned President in Chipchase v Chipchase [1939] P. 391, I am satisfied that the case before me is one where there has been no undue publication of banns.

Counsel for the husband has cited a number of cases where a marriage has been declared null and void because some name other than the original name of one of the parties has been given.  But as I understand those cases there has been in each one of them, in a greater or less degree, an element of fraud or an element of concealment in some form or other.  In Small v Small (1923) 67 Sol. Jo. 277, which is probably the case which is most in favour of the husband’s contention, the only concealment at which one of the parties was aiming was concealment of the fact that he was a deserter from the Royal Field Artillery and had enlisted in another name in another regiment.  In those circumstances it may well be that he was anxious to be married in his adopted name for the purpose of avoiding arrest.  In Tooth v Barrow (1854) 1 Spinks, Ecc. & Ad. 371 which was also cited, it is quite clear there that the prospective wife adopted a name other than the name by which she had always been known, for the specific purpose of preventing people in the district knowing that she was the person who was going to be married.  In Wormald v Neale and Wormald (otherwise Neale) (1868) 19 L.T. 93, a false name was deliberately given because the girl who was going to be married wanted to prevent that fact being known.  In this case I am satisfied that there was no intention to deceive, or intention to conceal.  Having regard to the judgment of the learned President in Chipchase v Chipchase [1939] P. 391, that must be an end of the matter.

There is one further question with which I should deal.  Section 7 of the Marriage Act, 1823, provides that the true Christian names and surname should be delivered to the vicar when the banns are published.  Therefore the question arises — even supposing that the question of concealment or lack of concealment was not a matter to be considered in the interpretation of s. 22 — whether or not the petitioner did in fact give her true Christian name and surname to the vicar at the time when the banns were published.  As to the Christian name, of course, there could be no doubt, because she was baptized and registered in that name; the banns were called and she was married in the name of Jessamine.  The real question is, accordingly, whether the name of Knight or the name of Roberts is her “true surname”, and what is the meaning of the word “true”.  It is clear in this case that she was born in wedlock, and that her parents’ name was Knight.  But it is equally true that from the time she remembers anything at all she was known as Roberts, and that up to the age of sixteen she did not know that she had any other name.  It is abundantly clear that she had never any intention of being known — apart from marriage — by any other name than Roberts; that Roberts was the name by which she was generally known, the name in which she would sign, the name by which she was known at school, the name to appear on any documents on which her name had to be inscribed, and so on.

In those circumstances, the question arises whether her true surname is that which came to her at birth, or that which became hers by a usage which was so common and complete that it would not be reasonable to say now that her true name was other than Roberts.  My attention was drawn by Mr Fairweather to Sullivan v Sullivan (otherwise Oldacre) (1818) 2 Hagg. Con. 238, a case decided long before this Act was passed.  My attention was particularly drawn to that part of the judgment dealing with the difficulty of knowing what is a true name and whether a name can be acquired by repute.  The judgment first of all deals with illegitimate children, and whether they have the surname of the mother or whether they acquire other names by repute as time goes on, and then it says this 2 Hagg. Con. 253: “However, if they are much tossed about in the world, in a great variety of obscure fortunes, as such persons frequently are, it may be difficult to say for certain what name they have permanently acquired, as was the case in Wakefield v Mackay (otherwise Wakefield) (1807) 1 Hagg. Con. 394.  In general it may be said that where there is the name of baptism and a native surname, those are the true names, unless they have been overridden by the use of other names assumed and generally accredited.”  There is no doubt in this case that the name of baptism, and the native surname — which in the absence of other conditions would be the true names — are the names of Jessamine Knight.  But I am completely satisfied to adopt the words of Sir William Scott  in the Wakefield case ((1807) 1 Hagg. Con. 394), that the name of Knight has now been overridden by the use of another name, the name of Roberts, which has been assumed and has been generally accredited.

I am satisfied, in those circumstances, that even if the question of concealment did not enter into the interpretation of s. 22, that on the interpretation of s. 7 of the Act I should be bound to say that the true name of this petitioner, in the sense that it was a name which had been assumed for her and by her, and by which she had been generally known throughout the whole of her conscious life, was the name of Roberts, which was the name by which her banns were called prior to her marriage.  That being so, I think that it would be impossible to say that there was not due publication of the banns in this case, and therefore the plea on the cross-petition must fail.

The case then dealt with the other issues raised in the pleadings, and the wife was granted a decree nisi of divorce on 1^st July, 1948.

Text of judgment is Crown Copyright ©.  Presentation, mark-up and all other content is copyright © Deed Poll Office Ltd.