Chapter XIII (B)-PETITION FOR DECLARATION OF NATIONALITY ON THE Complex issue of illegi GROUND OF LEGITIMACY OR VALIDITY OF A MARRIAGE. Case B-under s. 1. A person may petition the Court for a decree declaring him to be a natural-born subject on the ground (wholly or in part) i. that he is legitimate: or ii. that the marriage of his parents was a valid marriage : or iii. that the marriage of his grandparents was a valid marriage. Example. H, born in Paris, the son of X and Y : X the son of M and N: Y the daughter of S and T. If H was not born abroad he is a natural-born subject, and the case falls within case A: but H may be in category (b) or (c). The issues are twofold as in case A: illegitimacy, and validity of marriage. The issue of legitimacy arises out of i and ii ; but not, as was timacy and seen in case A, out of iii, which concerns the validity of the marnationality. riage of either of the grandparents. The issue of legitimacy may be stated thus-can H be a natural-born subject if he is illegitimate, either from having been born out of wedlock, or because the marriage of his parents was within the prohibited degrees? As we have seen in a previous chapter, illegitimate children born abroad cannot come within the benefit of the statutes of George II or George III, and therethe statutes. fore if the finding is that H was born out of wedlock, or that the see Chapter marriage of X and Y was within the prohibited degrees, H is not IV; p. 64.] a natural-born subject. Relation of the issues to The absence of any express reference to the statutes raises another difficulty. The issues seem to be directly concerned with them, for it is only in consequence of them that nationality has any relation to, or is in any way dependent on, legitimacy. But the decrees contemplated by the Act are with regard to the existence, or validity of the parent's marriage, and are not such as would arise on the construction of the statutes: for example, whether the father was a natural-born subject at the time of the birth of [cf. p. 54.] the child. It is hardly probable that this question would be excluded from a discussion which leads to a declaration that a person is a natural-born subject, for if the statutory condition is not fulfilled he would not be a natural-born subject. It is possible rents irrele that the statutory issue is saved by the parenthesis" (wholly or Chapter XIII in part) ", which seems to point to the fact that there may be Introduction grounds to be considered in the main issue, other than those in- of grandpadicated. But here again the validity or invalidity of the marriages vant. of either of the grandparents is irrelevant. It seems more than probable that the grandparents were introduced owing to the misconception, already alluded to, as to the effect of the statute [cf. p. 51.] of George III. (C).- PETITION FOR DECLARATION OF VALIDITY OF MARRIAGE. 66 The second part of s. 1 provides that any such subject or person" may, in like manner, apply to the Court "for a decree declaring that his marriage was or is a valid marriage". This refers to the subjects or persons mentioned in the first part of the section; it is therefore necessary to consider two separate cases under the second part. Any natural-born subject, may petition the Court for a decree declaring his marriage valid. Example. X a natural-born subject married to Y. of marriage. Question raised by the petition is the marriage of X and Y Simple issue valid? The issue is: are X and Y within the prohibited (see also degrees? as to mean ing of "validity The decree will declare the validity or invalidity of the mar-case E. So far as the nationality of parties is concerned : X may be in category (a), (b) or (c): Y will be in the same category as X ; but, if the marriage is declared invalid, Y will revert to her former nationality. The nationality of H is not in issue, but it will be affected by the decision, if he was born abroad. If the marriage is declared invalid he will not be a British subject, whether he come under category (b) or (c); or rather, whether X is the father referred to in one or the other of those two categories. Chapter XIII (D).—PETITION FOR DECLARATION OF VALIDITY OF MARRIAGE WHERE NATIONALITY DOUBTFUL. Case D-under s. 1 (2nd part.) Any such person," i. e. Any person whose right to be deemed a natural-born subject depends wholly or in part on his legitimacy or the validity of a marriage, may petition the Court for a decree declaratory of the validity of his marriage. In order to define " such person "it is necessary to introduce from the first part, the description of the persons who may petition under it; this involves the elaborate statement of the case given above* ; but a difficult question now arises in connection with the meaning of this definition. The petitioner prays for a decree questions of declaratory of the validity of his own marriage. But his right to be nationality deemed a natural-born subject may depend on the validity of the and validity of marriage. marriage of his parents, and the question is whether a prior deci Question whether decree to cover both sion that he is a natural-born British subject is necessary before the Court will entertain the petition as to his own marriage. The argument, on the one side, is that the above amplification of "such person" is merely descriptive of the person to whom the right to petition is given: on the other side, that the intention of the Act is to benefit only natural-born subjects, and that the resolution of the doubt is essential to the commencement of his own proceedings. I am inclined to think that this is the meaning of the provision, though it may be said that there is nothing inherently improbable in the idea that the petition may be filed by persons who are illegitimate or the offspring of invalid marriages. The point is not free from doubt: and the essential condition that the petitioner must be domiciled in England seems at first sight. to support the latter view. If this is so, the first case which comes under this rule is a combination of case A and case B. Example. H the son of X the husband and Y the wife. * In the construction of this section it should be noticed that the sentence, such Court shall" make such decree declaratory of the legitimacy of such person, or of the validity or invalidity of such marriage,as to the Court may seem just",is the summary of the Court's jurisdiction, and applies to the four cases contemplated by the section. The nature of the decree to be given by the Court will be governed by the petition in each case, and this is expressly provided for in each part of the section. for a decree declaratory of the validity of his own marriage, Chapter XIII irrespective of the nature of his descent from X and Y. If this construction is not right, then it follows that to the consequences of decrees in cases A and B favourable to H's British nationality, must be added his right to petition under case B. But there is another class of persons whose right to be deemed British subjects depends on the validity of a marriage- Application married women: and the rule is also applicable to them, the married two marriages referred to being in this case the same. Example. Y a foreigner and a widow, married to X a natural born British subject. of rule to women, decree. Question raised by the petition is the marriage valid? The issue is were X and Y within the prohibited degrees? The decree will declare the validity or invalidity of the mar- Result of riage: the consequence of the decree will be that Y will be a British subject if the marriage is valid, or an alien if it is invalid, under s. 10 (1) of the Act of 1870. Neither the nationality nor the legitimacy of H is in issue, but both will be affected by the decision if he was born abroad. If the mar- [ef. p. 64] riage is declared invalid, he will be neither legitimate nor a British subject; but if the marriage is declared valid, he will be both legitimate and a British subject. Ás before X may be the father referred to either in category (b) or (c). Petition dur ture or after In principle there is no reason why the petition should not be presented by a married woman during coverture, though it is possible that rules of procedure might prevent it: but cases ing covermight arise where this would be a hardship, as when the divorce. husband declined, or was unable to petition. If the rule given in chapter IV is sound, that a divorced woman retains her British nationality, then it would appear that a divorced woman might petition under this rule. The Act having been passed after the year 1850, "his" includes " her ", under s. 1 of the Interpreta-c. 63. tion Act, 1889. (E) --PETITION FOR DECLARATION OF NATIONALITY WHERE Case E-under s. 2. DOUBTS EXIST. A person may petition the Court for a decree de- [cf. p. 62.] 52 & 53 Vict. Chapter XIII Petition may be The petition may be coupled with a petition in respect of the person's legitimacy, or the validity of a marriage: which may be his own, or any other marriage on which his right either to be with any of legitimate, or to be a natural-born subject, depends. combined former petitions. The decree may be such as to the Court may seem just. In the previous cases the right to be deemed a natural-born subject is treated as from the point of view of legitimacy or validity of marriage; but any question which may arise under the statutes of George II and George III must, it has been sug[cf. p. 196.] gested, also be determined. But the case for which s. 2 provides, deals specially with this question, and enables doubts as to whether the conditions of those statutes have been fulfilled to be doubt under decided; it deals in fact with the cases of doubtful nationality to which reference has been made under s. 8 of the Naturalization Act. It was suggested that the law did not intend to leave the solution of these doubts to the Secretary of State, as a means of solving them had already been provided by this Act. Cases of the statute. Decree The doubts may arise with regard to any of the incidents connected with the birth of persons in categories (a) (b) or (c) :as to the birth-place of the petitioner himself, or of his father or grandfather; or, if he is in category (b) or (c), as to the validity of the marriage of his father, or as to whether he was born in wedlock. The decree declaratory of his British nationality will carry affects legi- with it the nationality of his children, according as they fall within (b) or (c); if they fall within (a) they are British subjects by right of birth. timacy of children. Other forms of invalid marriages. So far the validity of a marriage has been considered only from the point of view of the prohibited degrees, under the Mar5&6 Will. riage Act, 1835. But the question of validity may turn on the conÏV. c. 54. 12 Geo. III, struction of the Royal Marriages Act, 1772, or under any other statute with makes marriages invalid. It also extends to another class Recognition of cases which are more generally included under the head of C. II. of marria ges. [L.R.38 Ch. D. 220.] "recognition of marriages": cases where marriages have been contracted, as it was usually said, in non-Christian countries. In the well known case of re Bethell, Bethell v. Hildyard, Stirling J. reviewed all the previous cases, and declined to recognise as legitimate the issue of the Englishman with a woman of the Baralong tribe, among whom it was found that polygamy prevailed. These cases have been fully discussed by many authorities, and |