Maintenance - Maintenance of children

Green and another v Hon E Alexander and others: Chancery Division: 19 July 2011

The instant proceedings were concerned with whether the claimant trustees of the English and Irish settlements of the 13th Duke of Manchester (the duke) could, under the terms of those settlements, benefit the first and second defendants, who were the children of the duke. The duke had lived in sequence in Australia, and California in the United States. He moved to California in about 1986, where he met and married WB.

They had two children (the first and second defendants), both born in California in 1993 and 1999 respectively. However, it was subsequently discovered that at the time of his marriage to W, he was still married to M from whom he had not been divorced. Consequently, his marriage to W had been bigamous and void. The duke separated from W in 2006/2007 and the void marriage was dissolved in August 2007.

The claimants, who had until then been providing maintenance for the two children, ceased to do so in 2009 when they discovered that the marriage was bigamous. Entitlement under each of the settlements depended upon whether the children could be described as 'issue' of the duke's father or as 'descendants' of the 1st duke. Applying conventional approaches to the construction of such documents led to the conclusion, at first blush, that only the legitimate issue or legitimate descendants could benefit. Section 1 of the Legitimacy Act 1959 which was in force at the date of the settlements, and provided that the child of a void marriage should be treated as the legitimate child of his parents if, at the time of the act of intercourse resulting in his birth, both or either of the parties reasonably believed that the marriage was valid.

However, by sub-section (2) of that Act, the section as a whole was to apply only where the father of the child was domiciled in England at the time of his birth. Those provisions were to the same effect in the later Legitimacy Act of 1976. In 1969, when the settlements were created, both the laws of Australia and California had provisions enabling one to treat the children of a bigamous marriage as legitimate. Consequently, the domestic law of all possibly relevant domiciles of the parents, namely the possible domiciles of the duke (being England, Australia or the US) and the Californian domicile of W, treated the children of a void marriage as legitimate.

It fell to be determined how the first and second defendants were to be treated as a matter of English law for the purposes of the settlements.

The court ruled: (1) The underlying principles as to the legitimacy of a child should apply as much to legitimacy as legitimation. Whilst it was true that there were differences between those two concepts, there was no reason why the resulting status should be treated differently in the two cases (see [15] of the judgment).

(2) A child's legitimacy was a question of status. That status was conferred or withheld, as the case might be, by the law of the domicile of origin, which was the law of the domicile of the parents at the time when the person whose legitimacy was in question had been born (see [11] of the judgment).

In the instant case, the first and second defendants had acquired the status of legitimacy by reason of the law of the domicile of each of their parents. That was the case whether the 13th duke had been domiciled in England, Australia or in Cailfornia (see [28] of the judgment).

The trustees were entitled under the terms of the settlements to provide for the first and second defendants (see [29] of the judgment).

Goodman's Trusts, Re [1881-5] All ER Rep 1138 applied; Bischoffsheim, Re, Cassel v Grant [1947] 2 All ER 830 applied; Shaw v Gould [1861-73] All ER Rep 874 distinguished.

Thomas Dumont (instructed by Gisby Harrison) for the claimants. Williamj Moffett (instructed by Gisby Harrison) for the first and second defendants.