Jacombe v Jacombe [1961] HCA 25; (1961) 105 CLR 355 (12 May 1961)

HIGH COURT OF AUSTRALIA

JACOMBE v. JACOMBE [1961] HCA 25; (1961) 105 CLR 355

Evidence

High Court of Australia
Dixon C.J.(1), Fullagar(1) and Menzies(1) JJ.

CATCHWORDS

Evidence - Marriage - Capacity - Proof of dissolution of prior marriage - Copy order of foreign court - Seal of court - Authentication of decree by stamp of branch of court - Proof of marriage - Performance of ceremony - Cohabitation - Evidence Act, 1898-1954 (N.S.W.), s. 21.

HEARING

Sydney, 1961, April 17, 18; May 12. 12:5:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

May 12.
The COURT delivered the following written judgment:-
This is an appeal from a judgment of the Full Court of the Supreme Court of who is the respondent to this appeal, a decree for the dissolution of her marriage with the appellant on the ground of his adultery. This appeal is only concerned with the question whether the appellant and the respondent were in law married, for the appellant's case is that the decree for the dissolution of marriage was wrongly made because there was no marriage to dissolve. The appellant's name was originally Jacobs and the parties went through a ceremony of marriage in Christ Church, Jerusalem, according to the rites and ceremonies of the Church of England on 7th July 1941. The formal validity of this Jerusalem ceremony is not now in dispute. What is in dispute is the capacity of the respondent to have contracted that marriage, the appellant contending that she was at that time the wife of Stanislavs Urbanovics. In the marriage certificate that recorded the ceremony in Jerusalem, the respondent is described as "Austra Melanie Vapa, Spinster", but she, as is now admitted, was not a spinster; in a petition dated 20th July 1956 instituting proceedings in the Supreme Court of New South Wales for judicial separation from the respondent, she described herself at the time of the marriage now in dispute (although she alleged that it took place in Cyprus in 1938) as "Austra Melanie Urbanovich, Widow", but no attempt was made in the proceedings with which we are concerned to prove her widowhood; in the petition instituting these proceedings, which is dated 17th September 1958, the respondent contented herself with this description of her former status: "Formerly Austra Melanie Jacobs nee Vapa and now known as Austra Melanie Jacombe", but pursuant to leave granted on 20th February 1959 her petition was amended to describe herself as being at the date of the disputed marriage "then Austra Melanie Urbanovich Divorcee". What has been said shows that in a variety of ways the respondent has cast a good deal of doubt upon her capacity to have married the appellant and, in explanation of how she came to be described as a spinster in her marriage certificate, she did not hesitate to blame those connected with the Church in Jerusalem for what she called a mistake. It is not necessary to attempt to find out what lay beneath what seems clearly enough to have been a deception practised upon somebody at the time of the Jerusalem ceremony; what we are now concerned with is whether there was in the circumstances as a whole enough to lead to the conclusion that the parties were validly married. (at p357)

2. At the hearing of her suit the respondent did attempt to prove affirmatively that an earlier marriage to Stanislavs Urbanovics had been dissolved by "the Riga Supreme Court's Fourth Civil Branch" by the production of what was claimed to be a sealed copy of the order whereby the marriage was dissolved. Nield J. rejected this document on the ground that because it was not sealed with the seal of the Court it could not be admitted pursuant to s. 21 of the Evidence Act, 1898-1954 (N.S.W.). A former judge of the Riga Court now living in Australia, George Weidners, gave evidence that the document was so sealed and that it was what it purported to be, but his Honour rejected that evidence too. Nield J. decided, however, that there was no satisfactory evidence of any marriage between the respondent and Urbanovics and, that being so, the marriage of the parties to the suit was sufficiently proved by the presumption of validity arising from the celebration of the marriage ceremony. (at p358)

3. In the Full Court the copy order of the Riga Court which had been rejected at the trial was admitted and, on the footing that the respondent's marriage with Urbanovics had been proved, it was decided that this was satisfactory evidence that it had been dissolved. Two members of the Full Court also thought that in any event the presumption of a valid marriage arising from the Jerusalem ceremony and subsequent cohabitation was in the circumstances sufficient proof of the marriage of which dissolution was sought. (at p358)

4. It seems clear that the respondent had married Urbanovics. The respondent, as a petitioner in the suit, alleged that a marriage to Urbanovics had been dissolved prior to her marriage to the present appellant, and supporting this allegation she gave oral evidence of a marriage in Riga followed by cohabitation. This would of itself have been sufficient evidence of a marriage to Urbanovics but the copy Riga divorce order, which we think that the Full Court was correct in admitting, was of course also evidence that there was a marriage which such order dissolved. The ground for the rejection of the copy order at the hearing has already been indicated, namely, that it had not been shown to be a sealed copy of the court order and so it was not admissible under s. 21 of the Evidence Act, 1898-1954. That section provides inter alia that evidence of any order of a court outside New South Wales may be given by production of a copy thereof sealed with the seal of such court. Unfortunately the copy order admitted by the Full Court has been lost and was not transmitted to this Court where we were handicapped by having to rely upon obscure photographic copies of that document together with a translation into English. The document seemingly was a copy order followed by a certificate that it was a true copy. The order was dated 8th March 1939 and records a decision of the Riga Supreme Court's Fourth Civil Branch "to dissolve the marriage, which was contracted on the 27th of June, 1933, at the City of Riga Registrar, between the petitioner Austra Melanija Urbarovics, nee Vapa and defendant Stanislavs Urbanovics, independently from blame; to grant the petitioner her before-marriage surname 'Vapa'". The certificate is dated 1st June 1939 and certified as follows (omitting references): "This copy from Riga Supreme Court's 4th Civil branch . . . has been issued to Austra Melanija Vapa, div. Urbanovics, nee Vapa, with a remark, that this verdict became absolute as from the 9th April 1939". The certificate is authenticated by a stamp, which in the translation is described as a seal, carrying the words "Rigas Apgabaltiesas IV. civilnodaja", which are translated as "Riga Supreme Court's Fourth Civil Branch". The signatures of two witnesses appear, one described as that of the vice-chairman and the other described as that of the secretary of the Court. The witness George Weidners, who was a judge of the Court in 1939, gave oral evidence that the stamp was the seal of the Court, although it had another seal as well, and that the signatures were known to him as those of the persons holding the offices described. It is by no means clear how this document came into existence but it is apparent when it did so, namely, 1st June 1939, and that it evidenced a divorce complete by 9th April 1939. (at p359)

5. We consider that this document itself and the evidence relating to it established that the certificate had been sealed by the Court and we therefore agree with the Full Court that the copy order was admissible pursuant to s. 21 and that, having been admitted, it established the dissolution of the marriage between the respondent and Urbanovics. This conclusion is sufficient to dispose of the appeal, but in the circumstances it is desirable to express our agreement with the judges of the Full Court who dealt with the matter that proof of the ceremony of marriage at Jerusalem followed by seventeen years' cohabitation as man and wife raised so strong a presumption of the validity of the marriage between the parties that it prevailed over such evidence as there was to the contrary. (at p359)

6. This is a case where the performance of the marriage ceremony was followed by the parties living together as man and wife for seventeen years. The performance of a marriage ceremony itself raises a presumption of the validity of the marriage and upon this point it is not necessary to do more than cite from the judgment of the present Chief Justice in Axon v. Axon [1937] HCA 80; (1937) 59 CLR 395 : "Upon proof that a marriage ceremony had been duly performed between herself and the respondent a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony" (1937) 59 CLR, at pp 403, 404 . Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec'd. (1961) 1 WLR 9 ) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so. (at p360)

7. For these reasons the appeal should be dismissed. (at p360)

ORDER

Appeal dismissed with costs including the costs reserved by the order of 1st September 1960.