Green & Anor v Montagu & Anor

For private international law purposes, legitimacy is a status which may be recognised by English courts when conferred by the law of the relevant parental domiciles. The principle applies to children of a void marriage as well as to children legitimated by statute. A child may therefore take under a settlement referring to legitimate issue or descendants where the child is treated as legitimate under the applicable domicile laws. The decision in Shaw v Gould was confined to its unusual facts and to the recognition of a foreign divorce, rather than treated as establishing a general rule denying recognition to foreign legitimacy statuses.

The trustees of the Duchy of Manchester English and Irish settled estates sought the court’s directions on whether two children of the 13th Duke of Manchester could benefit under settlements made by the 10th Duke. The children were born in California during a ceremony of marriage between their parents which was void because the father was already married.

The children’s mother reasonably believed that the marriage was valid. The Legitimacy Act 1959 therefore potentially applied, but its operation depended on the father’s domicile. Possible domiciles included England, Australia and California. The central issue was whether, under English private international law, the children were legitimate for the purposes of the settlements.

1. Relief granted. The trustees were entitled under the settlements to provide for the two children.
2. The Legitimacy Act 1959 treated a child of a void marriage as legitimate where one or both parents reasonably believed that the marriage was valid, but applied only where the father was domiciled in England at the relevant time. The court was not required to determine the father’s domicile because the children were legitimate under the laws of every potentially relevant domicile.
3. The court adopted the underlying reasoning in In re Goodman’s Trusts and In re Bischoffsheim: legitimacy is a question of status, and English law recognises a status of legitimacy conferred by the law of the country of the parents’ domicile, subject to the established qualification concerning succession to English real estate.
4. Shaw v Gould was closely confined to its particular facts. It concerned the effect of a foreign divorce obtained in circumstances where an English marriage was said to remain undissolved. It did not determine the general reception in England of a legitimacy status conferred by foreign law.
5. The court considered that a restrictive rule requiring legitimacy under the law of both parents’ domiciles was consistent with the authorities. That requirement was satisfied whether the father was domiciled in England, Australia or California, since the relevant laws treated the children as legitimate.
6. It was unnecessary to decide the further arguments concerning the Human Rights Act, or whether the settlements could be construed more broadly in light of the Legitimacy Act 1959.

Not stated in the judgment.