Conflict of Laws-Marriage-Forelgn fI1/lrriage-Whether morriage in Egypt
between an Egyptian local subiect of' the Greek Orthodox religion and
a British subiect of the Romon Catholic faith is valid as against the Brltilh

                ItIbfect                                                                                                      .

The appellate went through a ceremony .of marriage with the .respon-dent before a priest of the Greek Orthodox Church. The appellant is aD Egyptian local subject whereas the respondent was a British. subject
belonging to the Roman Catholic faith. They lived together for some-tiine and then separated. The appellant has brought an action claiming maintenance. The respondent contended that there was' no valid marriage. Morgan, J., in the court of first instance, held that there was no evidence of a marriage in accordance with the form prescribed by the law of the country in which the contract of marriage was made. This decision ~ appellant appealed against.

Held: (i) that on the facts a marriage ceremony according to the rites of the Greek Orthodox Church did take place between the parties.

( ii) that the judgement of the Greek Patriarchate upholding the. validity of the marriage is only binding on the appellant and does not piDd
the respondentsince he did -not submit to its jurisdiction.

( iii) that the respondent is a British subject governed by the laws ttl England and therefore according to English law' he is not personally incapacitated from entering into this marriage by virtue of the fact that

   he is Jf Roman Catholic.                                                                                .

(iv) that the, English Foreign Marriages Act is an enabling Act *.d&s not affect the fonnalities pertaining to a marriage as laid dowu by the

    ltnglish common law.                                                 .

( v) that under English common law the marriage Is valid if'. it IIvalid by the law of the place of celebrations."Court: Wasey Sterry, Acting J.C.(vi) that the' marriage ,is also valid \ as an Engltsh common law
marriage since it was performed by an ordained priest of the Greek Church,and nonregisteration of the marriage does not render it invalid.English Foreign Marriages Act.

Appeal

April 27, 1910. Wasey Sterry, Acting J.e.: In this case Madame Olympia has brought an action against William Bey Zalzal,claiming maintenance, from him as his wife. William Bey Zalzal denies that she is his wife and therefore, before she can succeed in.her claim, she has to prove that a valid marriage took place between them. She has for some years been trying to make out this claim:firstly by obtaining a judgment against him of the Greek Patriarchate . which, as he was not amenable to its jurisdiction, is not binding on him and is only effective for a purpose which I will mention hereafter;secondly by complaints to William Bey Za1zal's official superiors,to the Governor General and Lord Cromer. Some investigation took place on these complaints, but when it was evident that difficult ques-tions of law and fact were.involved the Government naturally declined to do anything in furtherance of her claim without a finding or decree of a court of justice to whose jurisdiction William Bey Zalzal was
amenable.In this state of affairs Madame Olympia brought an action last year before the civil judge, Mr. Morgan, who found that there was not sufficient evidence of the contract of marriage having been made
or carried out in accordance with a form recognized as valid by law of the country where the contract was made. And on that stae of facts Madame Olympia has appealed to me. That the decision has
been so long delayed I deeply regret, but circumstances • have been    too strong for me to give judgment earlier.                                     

Now there are two points which have to be decided in this case:
1. Did a marriage ceremony according to the rites of the Greek.Orthodox Church ever take place between the parties? 2. If it did,wasit of any validity in constituting a marriage? The first is a ques-
tion of fact, the second is a question of law. The respondent's case is that both these questions should be answered in, the negative. If the second question could be answered in the negative, it would
be unnecessary to decide the first and it would relieve me 'from the much more difficult task of saying whether the fact of marriage is or is not proved. I will, therefore, consider first the question of law.

The respondent is a British subject whose home (I use the word to avoid the word domicile which is. apt to be misleading) is in Byria in the Ottoman dominions, -The appellant is a Greek Orthodox by
religion and I am satisfied that, leaving out such considerations as may arise from the alleged marriage, she is an Egyptian local subject of the Ottoman Empire. The respondent being a British subject with
his home in the Ottoman Empire has certain extra-territorial rights under the Capitulations and is in my opinion, and as he himself contends, subject to the marriage laws of England so, far as they are
.applicable to his case, and not to the marriage laws of the Ottoman Empire applying to its Christian, subjects, It is conceivable therefore that a conflict of law may arise between the marriage law applicable \ \
to.each party respectively. Just as it has occurred in marriage between English and French subjects that the courts of one country pronounce

a marriage valid and the courts _ of the other pronounce it invalid. The Court of the Patriarchate, to the jurisdiction of which the appellant is subject, has pronounced this marriage valid, and therefore
it appears to me that unless the respondent can show that that judge- ment was obtained by fraud or is contrary to natural justice I am bound by it so far as it goes. .And it goes to my mind to this length,
that if this court decides that so far as the respondent is concerned the marriage is valid, it will be valid also so far as the appellant is

         concerned.I found great difficulty in the course of the case in making the respondent understand this point and I therefore again emphasize it.The Greek Patriarchate has in my opinion no power to pr~nounce the marriage valid as against thy respondent unless he submits to its jurisdiction which he did not do; but it has power to pronounce the, marriage valid so far as regards the law applicable to the appellant, -and for that purpose but for that purpose only I accept the jud~ement.I have therefore to consider the question: Is there any conflict of 'law? In other words, though the marriage is binding on \ the

'appellant, is it binding on the respondent? Was the form of the marriage as here alleged one that will effectually bind a British subject
when made in Egypt? ' The respondent raises one preliminary point, viz., that he is.personally incapacitated from making such a marriage as this, because
he is a Roman Catholic; and as such he is prevented by the Canon law from marrying a divorced woman in, the life-time of her husband,and such was the status of the appellant at the time. of the alleged ceremony. The respondent as he is subject to the marriage laws of England cannot plead a personal incapacity as a Roman Catholic to marry a divorced woman in her husband's life-time; such an incapa-
city is unknown to the laws of England. Weare thrown back there-fore on an enquiry whether under the laws of England a marriage.in Egypt of a British subject to a Greek Orthodox woman performed
in a private house by a Greek Orthodox priest is a valid mar.riage.The respondent contends that the marriage of a British subject abroad is invalid unless it is celebrated under the provisions of the
Foreign Marriages Act. The civil judge has held that this contention is ill-founded and I agree with him. The Foreign Marriages Act isan enabling act and not a disabling one: it does not invalidate a
marriage made in a form which was effectual to make a valid marriage before the passing of that Act. The Foreign Marriages Act still leaves the general law on the subject as it was. And therefore all the argu-
ment addressed to me by the respondent on this point is beside the mark. A marriage under that Act must comply with its provisions but not a marriage that is valid outside them.

It has been laid down by English courts time and again that the marriage of a British subject abroad is valid in point of form
. (1) if it is valid by the law of the place of celebration,

(2) though not solemnized according to the law of the place of celebration but under the law of England

(a) if resort to the local law is insuperably impossible as for a Christian. in ~ Mohammedan or pagan country
(b) if there is no local law as in savage countries

(c) if the marriage takes place in a British ship or the lines of a British army of occupa-tion or in cases where British Jaw is of necessity or for convenience applied as in countries in the East or in countries where the privilegeof extra territoriality is enjoyed.It appears to me arguable that the law of the place of celebration in this case was by the choice of the parties the Greek Orthodox law,and that the marriage might be considered valid because valid by that law. If, however, this argument is untenable, the matter will fall under the second division as a marriage taking place in a country where resort to/ the local law is linsuperably impossible and where English law is to be applied to' one who enjoys the extra-territorial privileges of a British subject in the Ottoman Empire. By the com-,mOD law of England, as distinguished from statute law, a marriage performed by an ordained priest of the English, Roman or Greek Church is a valid marriage wherever and whenever it takes place;various safeguards against clandestine and secret marriages have been .introduced in England by Lord Hardwicke's Act and the aets amend-ing it, but that legislation has in my opinion no application outside. the realm, and therefore it appears to me that the marriage of a British subject of the Roman Catholic religion to a Greek Orthodox woman performed in Egypt by an ordained priest of the Greek Churchin a private house is a perfectly valid marriage by the law of England. It is said that the marriage is, not valid because it is not· registered.I answer that registration by the law of England has nothing to do with validity, though of course the absence of it enormously increases the difficulty of proving the fact of it.I cannot therefore take the short cut which the respondent invites me to take and say that the marriage. if it . did take place' was an invalid one. In my opinion, if it did take place, it was a perfectly valid one binding on both parties. I am therefore compelled to decide whether the marriage ever did take place.Whether the marriage ever did take place depends on the evidence
of certain witnesses who have been examined in Cairo on commission; on the inferences to be drawn from the conduct of the parties', and on. certain documentary evidence,We have these admitted facts: that the parties lived. together for years as if they were man and wife; that the respondent addressed letters to the appellant couched in the most affectionate language; that he addressed her habitually as his wife and wrote and spoke of her as such to others; that he signed himself habitually "your loving' husband;" that in one of his letters addressed to one Yuset, a con-nection by marriage of the family, he cursed the day he ever married. her, not apparently so much because he had ceased to love her, as because he was involved in her own domestic sorrows, and that he addressed petitions to the Government asking for increase of salary on the ground that he was a married man with a wife to support. On much less evidence than that marriages have been upheld.
in Eng~rtd, but here it is said that I must reg~rd all th~se expu:ssio~s .as ontJiing more than [aeons de parler. That 10 the society frequented .
by 'fhe parties it makes no difference whether. a woman is a man'~;mlstress or his wife, that he would in any case call her his wife, and,'
~t as for a petition to Government the expenses of a mistress are just as great as those of a wife, and it would be irrational to hold the petitioner bound by his own statement, or expect him to do any-
thing else than make any false statement that would be useful to him.As to the customs and moralities of the society frequented by the respondent I am not fitted to pronounce, but it seems to me that
the effect of such evidence, as that I have mentioned, is largely .cumulative; and that it is a sound enough legal rule to attribute weight to the written statements of the parties made before the quarrel
arose, and to assume that a Government servant did not make a- wilfully false statement to his employers when asking for an increase of salary. The matter, however, does not rest here. I have a certain
amount of direct testimony of witnesses who allege that they were present at the ceremony. And those witnesses have been examined
at Cairo on commission.I will deal with their evidence shortly. Th~ witnesses are four: Adolphe Fruhs_tuck, husband of the appellant's sister, Xamthippe
Fruhstuck, the sister - herself, - George Tsangaras, a Greek, employee of Messrs .. Stem Freres, and Mohainmed Ibrahim EI Bokhari, acarpenter.                                                                                           

Adolphe Fruhstuck does. not allege that he was. present at the actual wedding, but he says that his wife was the chief witness to the wedding and that the night before it took place his wife asked him
for money to pay the fee of the priest which she would have to pay.Hernentions the priest's name. He says that he took no particular interest in the ceremony itself, but he was interested that his wife's
sister should be married and not be the respondent's mistress only. and had told his wife that he thought they ought to be married as son"
as possible.Now as regards this evidence it should be noted that it does not agree in all particulars. Madame Fruhstuck says that a~' the time
of the wedding her sister and the respondent were living in Sheikh Abdalla, but not her mother or she and her husband. Tsangaras
says the whole family were in the house.Further the- language of the ceremony was alleged' by Madame Fruhstuck to ·tie Arabic, by Tsangaras to be Greek, by Mohammed EIBokhari to. be both.

The- respondent attempts to discredit this evidence generally by saying"

(1) that the two Fruhstucks are interested in the matter' andhaze concocted. the tale and suborned the evidence of' the other tw_!Jwitnesses,

(2) that Tsangaras is an employee of a beer house, and
(3) that Mohammed EI Bokhari is obviously a liar because a Moslem witness at a Christian wedding is anomolous.As regards these general remarks: Mr. Fruhstuck does not appear from his evidence to care much one way or the other. Madame Fruhstuck naturally does; but she appears to have given her evidence perfectly straightforwardly and to have been unshaken in cross-, examination.

As regards George Tsangaras he does not appear now to be,even if he once was, an employee of a beer house; and if he was it does not appear to be a fact that would incapacitate him from telling
the truth. As regards Mohammed EI Bokhari, it did I must confess appear strange to me that a Mohammedan carpenter should have been a witness, but now his presence has been explained, he knew
the priest and some of the parties, he had been sent for to lay some oil-cloth in the house and having done his work, and a show of some sort being forward, he naturally with the curiosity of his kind stays

   to see what it is.As regards the discrepancies of evidence mentioned above, so far from invalidating the witnesses' testimony they seem to me, as the events occurred 22 years ago, to confirm their bona fides. If this evidence was as the respondent says a concocted and perjured story it is incredible to me that they would not have come with a carefully prepared tale agreeing in every particular. As regards the two
particular points of discrepancy it does not seem to me in the least to invalidate the general truth of what George Tsangaras says, that he cannot remember or is wrong about the date when these people
were all living together, it being admitted that at one time they did so, Nor am I in the least surprised that all the 3 'witnesses differ about the language of the ceremony. I think it is highly probable
that it was as Mohammed EI Bokhari says, partly in Greek and partly in Arabic; but in any event with polyglot people like these, who break insensibly from one language into another, it would have been dif-
ficult to remember accurately about it after the lapse of a much shorter time than 22 years. .

There is one more matter' of evidence to which' I must allude, viz., the entries in the Patriarchate Register of the Greek Orthodox Church. Those entries consist of a formal permission to the parties
to marry and a statement twice entered in slightly varying language,purporting to be written and signed by the respondent, that he m8kes .his wife a marriage gift of £E.loo0 sterling.

The respondent absolutely and entirely denies that this . entry. is in his handwriting, or that he ever was at the Patriarchate until years after when complaint was made, and he went with Major Owen,
then Sudan Agent, to examine these registers. He also says that he never had £E.I000, and the appellant in that confirms him and laughs the idea to scorn. I also do not believe that he had £E.I000, perhaps
at that moment not a 1000 pence, but I think his vanity was quite sufficient to make him write that entry. Did he write it? I regret to say that I believe he did and that' he has deliberately again and again lied about it on oath. The evidence of the expert carries conviction to my mind. Leaving out the question of the expert evidence, I should have been prepared to find on the evidence of the witnesses and the document that a marriage was proved: if the expert had reported that he was positive the writing was not that of the respondent I . might have hesitated; t'hough I think even then the other evidence would have overborne me, but
when I find that the expert evidence confirms the conclusion at which I have arrived by another road that the respondent is a perjured liar,I have no alternative but to find that the appellant has made out her
case, that she has proved that she is the lawful wife of William Zalzal, .the respondent, and: that she is entitled to maintenance from him.The question then arises what ought he to pay. He has paid her
nothing since August 1903. In 1901 he appears to have been paying her £E.5 a month. On May 30, 1905, the Patriarchate Court thought,a proper amount in accordance 'with their rules was £E.8 a month.

The time during which the respondent refused to maintain his wife is a long one, but it has been partly caused by the appellant's ' own delay in taking the proper legal procedure, though I agree that'
in the circumstances there is much excuse for- the delay ..A lnaintenance allowance is for maintenance and a great part of this time the appellant has been maintained by the kindness of others ..
I do not therefose think that I should be justified in making the order for futu~ maintenance that I am going to make date from ~ePte. ~be~ 1~3. I belie.ve, .h~wever, she ha~ incurred d~bts .in bring-
mg .this ~on and maintainmg herself while prosecutmg It,. and I I bfJkve Ji'~r story, that she did in former years sell her jewels for his,
suppQtt. I shall therefore order the respondent to pay. to the appellant a lump sum of £E 300 in respect of past maintenance and pay her the sum of £E8 on the 1 st day of May next, and on the first day of every