CO885-(13-15) — Page 267

2353.

PUBLIC RECORD OFFICE

Reference :-

6

mminatam C.O. 885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

July last.

No. 2.

(CAPE COLONY.)

LAW OFFICERS to FOREIGN OFFICE.

Royal Courts of Justice, February 3, 1892.

We were honoured with your Lordship's commands, signified in Sir T. Villiers Lister's letter of the 29th ultimo, stating that he was directed by your Lordship to transmit to us a letter which had been received from Mr. W. J. Monckton, of Sunnyside, Plumstead, Cape Colony, on the question of the validity of his marriage, 29 Dec. 1891. solemnized at the British Vice-Consulate at Las Palmas, Grand Canary, on the 14th of

That the facts as stated by Mr. Monckton were as follows:- That, after due notice had been given, as required by the Marriage Act, 1890, section 7 (1), and at the time and place above mentioned, the marriage was solemnized by Captain Harford, Her Majesty's Consul for the Canary Islands, whose public office was at Santa Cruz, in the Island of Teneriffe, and who was a consular officer authorised to solemnize and register marriages in the manner provided by the nineteenth section of the Consular Marriage Act, 1849, the vice-consul at Las Palmas not being so authorised.

That it was also alleged, and that it might be assumed as proved for the purposes of the reference to us, that in respect of the hours between which a marriage must take place, and of all other matters, the requirements of English law were duly complied with.

&

That the instructions relating to consular marriages, which were embodied in circular despatch, of 20th August 1853, contained the following direction:

"The only place where marriages under this Act (the Consular Marriage Act, 1849) may be solemnized is the British consulate, that is the public office of the consul. general, consul, vice-consul, or consular agent, as the case may be."

That the terms of that circular were subsequently approved by the then Queen's advocate, Sir R. Phillimore, in a report with which he favoured Lord Stanley, on 4th June 1867 (see L.O. Reports for 1867, France No. 50, at pp. 40 & 41).

That the interpretation placed on that direction by the cousul was, according to Mr. Monckton, that the vice-consul's office was temporarily the consul's office when the consul was there, such consul being an officer under the consul's superintendence, and such office being within the district of the said consul.

That it was clear, however, that that view could not be entertained, having regard to our report of the 10th March 1888 (see L.O. Reports for 1888, Madagascar, at pp. 37-39).

That the seventh section, paragraph 1, of the Foreign Marriage Act, 1891 (which was passed in the month following the solemnization of the incriminated marriage), however, provided :-"Where a marriage purports to have been solemnized and registered, in

pursuance of the Foreign Marriage Acts or any of them

in a British consulate, it shall not be necessary in support of the marriage to give any proofs of

"

64

E

the authority of the marriage officer within the meaning of this Act by or before "whom the marriage was solemnized and registered, nor shall any evidence to

prove

"his want of authority, whether by reason of his not being a duly authorised officer, or "of any prohibition or restriction under the marriage regulations, or otherwise, be given

in any legal proceedings touching the validity of the marriage."

+6

That your Lordship requested that we would be so good as to take the case into consideration, and would favour you with our opinion, (a) whether section 7 (1) of the Act of 1891 could be held to operate retrospectively, and, if so, whether the marriage would be entitled to the benefits of that section; and, (b) assuming that the marriage should, in our opinion, be invalid, whether the parties should be advised to go through a legal form of marriage without delay.

We have taken the matter into our consideration, and, in obedience to your Lord- ship's commands, have the honour to

Report

That, in our opinion, the provisions of the Act of 1891, even if retrospective, would not cure any defect in the marriage due to the fact of its having been solemnized at the

0 70451.-3. 25.-2/99.