The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1885-05-02 00:00:00

A COMPLICATED NARMAGE
QUESTION.

Judgment has been given in the Court of Appeal
in the action De "Morn v. Concha," in which an
estate valued at nearly £200,000 was involved; The
pc-int in dispute was the legality of a certain marriage,
the objections to which were of an ecclesiastical and
formal nature. In the original trial Vice-Chancellor
Bacon upheld its validity.
Mr. H. Matthews, Q.C., and Mr. Davey, Q.C.,
(with whom was Mr. A. J. Marley) were heard on
behalf of the appellants.

Mr. Fischer, Q.C., Mr. Rigby, Q.C., and Mr. Kaye,
who appeared for the respondent, Dona Ads-,hada
Concha, were stopped by the Court.

Lord Justice Cotton, in delivering judgment,. maid
that if there was a marriage between Don Juan Jose
and Dona Maria, Dona Adelinda was undoubtedly
the child of the marriage. It was admitted that fin
/39 a ceremony of marriage took place between De.n
Juan Jose and Dona Maria. She was then a Chiham
living at Lima, and they were first cousius, Don Juan
being an officer in the invading Chili= army. In
1838 he made the acquaintance of his uncle and
cousin. Some time in July, 1839, the ceremony took
place, and the question was whether it was a valid
marriage. The parties lived together afterwards as
husband and wife; the father being in a good position
they lived for a time with him, and were received, if
not in the best, in very good society in Lima. They
were received as husband and wife down to the wife's
death in 1853, and Don Juan in many ways recognised
Dona Maria as his wife, and Adelinda as his legitimate
daughter. That was very strong evidence in itself.
In 1859 a quarrel took place between Don Juan and
Don Ramon, who had married Adelinda, who was his
niece. For some time the brothers Don Juan and
Don Ramon had been in partnership together. After
some time Ramon went to Europe, and differences
arose as to property. In the course of these dis-
putes Don Juan thought be was badly used, and, a
claim being made by Ramon insight of his wife, as
the only child of the marriage, Don Juan put in an
answer in which for the first time he repudiated his
marriage. He did not then say he considered the
marriage invalid, bat that there never had been any
marriage. Afterwards he raised this point of
canon law on the advice of some Spanish lawyers.
It was impossible not to have regard to the statement,
that Don Juan at first denied the fact of any mar-
riage having taken place. It was a fac., however,
that Don Juan and Dona Maria were first cousins,
and that a marriage between such persons was, by
canon law, unless made with a dispensation, abso-
lutely null and void. The Court also found that, ac-
cording to a decree of the Council of Trent, the mar-
riage must be before the priest of the parish in which
one of the parties resided, unless there was a
licence by the ordinary or by the priest of the parish
to another priest to perform the ceremony. When
the marriage took place the Archbishop of Lima had
died, but within eight days it was necessary by the
canon law to appoint a vicar-capitular till the new
archbishop was consecrated. It was said that the
power to grant- licences did not vest in the vicar-
capitular on the death of the ordinary. There seemed
to be a good deal in that objection, but their lordships
had been referred to a letter encyclical of Pope
Gregory XVI., from which it appeared that doubts
had arisen among some bishops in America whether
the faculties relating to matrimonial dispensations
granted by Pope Pius VI. were transferred to the
vicars-capitular when the see was vacant, and that it
was desirable that provision should be made "by an
opportune sanation (per opportunam sanationem) for
the acts which have been hitherto done by vicars-
capitular by a presumed transfer of the faculties,"
and that His Holiness had healed the acts above
mentioned. When the marriage took place it
would be an incestuous union without a dis-
pensation, but the vicar-capitular then had juris-
diction. Then, ought the Court to differ from the
rule of law laid deem by the House of Lords in
"Piers v. Piers" (2 House of Lords Cases, 331) ?
The question involved was one of fact, and, indepen-
dently of any rule of law, his lordship should say that
the parties having lived with and recognised each
other as husband and wife and Don Juan having
recognised his daughter, and only came to say there
was no marriage, after his wife, one of the principal
witnesses, was dead, the Court ought not to come to
the conclusion that there was no marriage unless they
were absolutely satisfied by the evidence that no ex-
planation could be given of what had been done. The
fact of Don Juan's thinking he was injured might
have led him to repudiate the marriage, and it must
not be forgotten that when he did so, he had formed
an illegitimate connection with another lady which
had resulted in the birth of a child. In "Piers v.
Piers," Lord Chancellor Cottenham said, " Mv Lords,
I have not found that the rule of law is anywhere laid
down more to my satisfaction than it is by Lord Lynd-
hurst in the case of 'Morris v. Davis,' as determined
in this House. It is not precisely the same
presumption that exists in the present case ;
but the principle is strictly applicable to the
presumption which we are considering. He says,
"The presumption of law is not lightly to be re-
pelled. It is not to be broken in upon or shaken by a
mere balance of probability. The evidence for the
purpose of repelling it must be strong, distinct, satis-
factory, and conclusive." No doubt every case must
vary as to how far the evidence may be considered as
"satisfactory and conclusive : " but he lays down this
rule that the presumption must prevail unless it is
most satisfactorily repelled by the evidence in the
cause appearing conclusive to those who have to de-
cide upon that question." And Lord Campbell said
in the same case: My lords, my opinion is, that a
presumption of this sort in favour of a marriaee can
only be negatived by disproving every reasonable
possibility. I do not mean to say that you
must show the impossibility of any supposition which
can be suggested t 0 support the validity of the mar-
riage; but you must show that this is most highly
improbable, and that it is not reasonably possible.
Because otherwise there is a tremendous responsibility
cast upon you with regard to the status of the woman
and of the children." It was urged that that rule
did not apply in cases like this, where there was a
personal incapacity in the parties. The Court had to
consider whether, having regard to the rule as to
presumption in favour of marriage; they ought to
presume that all things had been done which would
make the marriage valid. It could not be disputed
that both parties intended the ceremony to be legal.
Certainly the bride, her father, and brothers intended
that a legal marriage should take place, and Don
Juan himself was very much attached to his cousin,
for he might have lost his position in the army by
marrying her without the consent of his command-
ing officer. The parties must have well known that
a dispensation was necessary. His lordship then dis-
cussed and commented on the evidence which, as he
pointed out, was in favour of the marriage not being
a " clandestine " marriage according to the canon
law. In his opinion, it had not been made out that
there was no valid marriage, but the evidence
established it. There was a difficulty as to there
being no certificate or entry of marriage forthcoming,
but witnesses had been called who said they were
present. The entry, which was said to be in false
names, might have been made to prevent it being
known that the priest had celebrated the marriage of
an officer of the army without the consent of his
commanding officer. In his lordship's opinion those
who had alleged that the marriage was invalid had
failed to support their case.
Lords Justices Lindley and Fry also delivered
judgments in favour of the respondent, and the appeal
was accordingly dismissed.