NOTES
The Validity of “Sham Marriages” and Marriages Procured
by Fraud: Johnson (falsely called Smith) v. Smith
The decision of the Ontario High Court (Stewart, J.) in Johnson
(falsely called Smith) V. Smith,1 raises questions concerning the
validity of “sham marriages” and marriages procured by fraud
about the answers to which there is little agreement in the common
law jurisdictions. The plaintiff and defendant had met in Jamaica
and had agreed that the defendant (who was presumably a Jamaican
citizen) should come to Canada and there marry the plaintiff. This
he did. The plaintiff assumed that she was entering into a true
marriage based on love and affection, but immediately after the
wedding the defendant told her that he no longer loved her and it
became clear that his real object in going through the ceremony
was to obtain a permanent residence in Canada. Although they spent
their marriage night in the same house, the marriage was never
consummated, and on the following day they parted. The plaintiff
then brought the present action for a declaration that the marriage
was null and void.
In giving judgment for the plaintiff Stewart, J., based his opinion
on the following findings of fact:
It is quite obvious that the plaintiff was tricked into a marriage by the
fraudulent intention of the defendant.
is equally obvious that the
defendant -t no time had an intention truly to marry the plaintiff. It
is
also, it seems clear, equally obvious that the plaintiff would not have
entered into a marriage had she been aware of the fraud which was being
perpetrated upon her.2
It
It will be seen that this passage raises two separate but inter-related
questions. Is the validity of a marriage affected if one party has no
intention whatever of cohabiting with the other? Is the validity of
the marriage affected if one party would not have gone through the
ceremony but for the other’s fraud?
The first of these questions –
that of the “sham marriage” –
had been considered in two English decisions. In the first of them,
l [1968) 2 O.R. 699, (1968), 70 D.L.R. (2d) 374.
2 (1968), 70 D.L.R. (2d) 374, at p. 375.
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H. (otherwise D.) v. H.,8 the petitioner, a Hungarian girl of 18,
had gone through a ceremony of marriage in Budapest in 1949 with
her second cousin, a French citizen of the same age, in order to
obtain a French passport so that she could get out of the country.
Her reason for wishing to do so was that, as she came from a wealthy
family and was therefore likely to be persona non grata with the
Communist Government of Hungary, there was a grave danger that
she might be sent to prison or a concentration camp from which she
might never come out alive. The respondent was aware of her plans,
and they had agreed that they should not live together but that
the marriage should be terminated as soon as possible after she
had made her escape. They separated immediately after the ceremony
and the marriage was never consummated. In these circumstances it
was argued inter alia that the marriage was a complete sham and
therefore void. Karminski, J., refused to accept this argument. He
held that mental reservations cannot avoid a marriage and that, as
the parties intended that the petitioner should become the re-
spondent’s wife, it was not now open to her to argue that the
marriage was a nullity on this ground. In other words, he looked
solely at their intention at the time of the ceremony and declined
to pay attention either to their motives or to their subsequent intent-
ions. His decision was followed a year later by Collingwood, J., in
Silver (otherwise Kraft) v. Silver,4 where he refused to grant a
decree of nullity to a German woman who had married an English-
man in pursuance of a similar agreement in order that she might come
to England to live with another man who was already married.
Karminski, J., followed two earlier decisions. The first was the
English case of Brodie v. Brodie.5 The respondent husband had
consented to marry the petitioner, who was pregnant by him, only
if she signed an agreement not to live with him after the marriage.
Horridge, J., held that such an agreement was contrary to public
policy and therefore void and consequently was no defence to a
subsequent petition by the wife for restitution of conjugal rights.
The second was the South African case of Martens V. Martens.0 The
facts bear a strong resemblance to those of Silver v. Silver. A Greek
woman had married a man resident in South Africa in order to live
there with -another man. She deserted the husband immediately after
the ceremony. Olayden, J., dismissed the husband’s action for a
declaration of nullity for the following reason:
3 [1954] P. 258, [1953] 3 W.L.R. 849, [1053] 2 All E.R. 1029.
4 [1955] 1 W.L.R. 728, [1955] 2 All E.R. 614.
5 [1917] P. 271,
(.1917), 86 L.J.P. 140, 117 L.T. 542.
No. 2]
NOTES
(I) t seems to me that the facts show that the parties did intend that the
defendant should become the wife of the plaintiff. That was the very
object of the ceremony, so that she could remain in the country, and that
object was brought about with a realization of both contracting parties
that there would be need for divorce to end the marriage.7
Karminski, J., refused to follow the American case of U.S. V.
Rubenstein,8 a criminal prosecution for conspiracy to defraud the
United States. An alien woman arranged to marry a U.S. citizen, in
order to facilitate her entry into the country. It was understood
that the marriage was not to be consummated and that it should be
dissolved within six months. The marriage was held to be a nullity.
Judge Learned Hand gave his reason for coming to this conclusion
in the following words:
Mutual consent is necessary to every contract; and no matter what forms
or ceremonies the parties may go through indicating the contrary, they
do not contract if they do not in fact assent… Marriage is no exception
to this rule: a marriage in jest is no marriage at all … [I]f the spouses
agree to a marriage only for the sake of representing it as such to the
outside world and with the understanding that they will put an end
to it as soon as it has served its purpose to deceive, they have never
really agreed to be married at all. They must assent to enter into the
relation as it is ordinarily understood, and it is not ordinarily understood
as merely a pretence, or cover, to deceive others. 9
Faced with this conflict of authority, Stewart, J., in Johnson V.
Smith preferred to follow Judge Learned Hand rather than the
English cases. He did not expressly state his reason for doing so
except to say: “In the interpretation of contracts of marriage, the
days of Lord Penzance have passed, when one eye was always fixed
on ecclesiastical dogma.”10 With respect, it is not clear what par-
ticular piece of dogma is meant. From the purely contractual point
of view, Judge Learned Hand’s views are obviously more in line
with the established common law. If A and B enter into an agreement
on the understanding that the terms are not to be enforced, the courts
will give effect to this and hold that there is no legally binding
contract.” Although the ‘analogy with all the other cases mentioned
is clear, it will be seen that this argument cannot be applied to the
facts of Johnson v. Smith at all, because the plaintiff believed that
she was entering into a normal marriage in which the parties would
6 [1952] 3 S.A.L.R. 771.
7 Ibid., at p. 775.
8 (1945), 151 F. 2d 915.
0 Ibid., at pp. 918-919.
10 (1968), 70 D.L.R. (2d) 374, at p. 375.
21 See, for example, Rose & Frankc Co. V. J. R. Crompton & Bros. Ltd., [1925]
A.C. 445.
McGILL LAW JOURNAL
[Vol. 15
perform the normal incidents. In a comparable commercial contract
the court would undoubtedly hold the defendant liable despite his
mental reservations by applying the principle expressed by Williston
that “a deliberate promise seriously made is enforced irrespective
of the promisor’s views regarding his legal liability”. 12
It
is submitted that the problem must be answered not by
reference to ecclesiastical dogma or the law relating to commercial
contracts but by reference to social policy. It is very much in the
public interest that persons should not be permitted to abuse the
marriage laws of the state by entering into a marriage purely to
obtain some collateral advantage and with no intention of fulfilling
the purpose for which marriage exists. The English judges have
sought to control this by refusing to look at the parties’ motives:
in other words, if two people take advantage of the opportunity to
marry that the law provides, they will saddled with all the legal
consequences of their act. To the present writer this seems to be
the only satisfactory solution and letting in the doctrine of mental
reservation seems to be fraught with dangers. Although the point
was not expressly made in Johnson v. Smith, the marriage was pre-
sumably void and not voidable. It therefore follows that it cannot
be subsequently ratified 13 and its invalidity can be put in issue by
anyone, including the “husband” himself.14 Had the defendant in
Johnson V. Smith decided to take advantage of the situation, he
might have had sexual intercourse with the plaintiff before indi-
cating his true intentions and departing, perhaps leaving her preg-
nant; she would then have had no defence to an action for nullity
brought by him (assuming, of course, that the court would still have
been prepared to infer that, at the time of the ceremony, he had
had no intention of cohabiting with her). Similarly, even if neither
of them had taken any steps to bring an action for nullity, no sub-
sequent change of mind and cohabitation would have approbated the
marriage and it would have been possible for anyone else to have
put the validity of it in issue years later, for example on a succes-
sion claim after the death of one of them. Such consequences are
highly undesirable when both parties agree that the marriage shall
be nothing but a sham; they are intolerable when one of them is
wholly ignorant that this is the other’s intention, as in Johnson v.
Smith.
12 Williston on Contracts, 3rd. ed., W.H.E. Jaeger ed., vol. 1, (Mount Kisko,
N. Y., 1957), 21, p. 39.
13 Power on Divorce, 2nd. ed., J.D. Payne ed., (Calgary and Toronto, 1964),
p. 348.
14See De Reneville
(1047), 177 L.T. 408, [1.948] 1 All E.R. 56.
(otherwise Sheridan) v. De Reneville,
[1948] P. 100,
No. 2]
NOTES
Even if one were to assume that this case was rightly decided on
its facts, it is difficult to foresee how far the principle could and
ultimately would be pushed. All the cases reported have had one
element in common –
the intention to circumvent immigration laws
and one can understand the court’s anxiety in U.S. v. Rubenstein
–
and Johnson v. Smith to see these laws enforced by the punishment
or deportation of an alien who had entered the country by fraud.
But the law of marriage does not exist to serve the criminal law and
it is both dangerous and improper to manipulate it with this end
in view. The passage cited from Judge Learned Hand’s judgment
suggests that, so long as the parties have no real intention of living
together, their precise motive is irrelevant. It follows from this
that, if the parties in the following hypothetical cases propose to put
an end to their relationship as soon as their purpose is served, each
of the marriages will be void. (i) A man marries a woman in order
to prevent her from being able to give evidence against him in a
criminal prosecution
(as in Graham Greene’s Brighton Rock));
(ii) a woman marries an old and failing man purely for the purpose
of acquiring his wealth and the social standing of being his widow;
(iii) two young people planning to go on a cruise together get
married in order to share a double cabin and give a veneer of
respectability to their relationship. In the first case one might argue
that, as in the fraudulent immigrant cases, public policy would be
best served by declaring the marriage void so as to make the woman
a compellable witness; in the second, nullity might work to the
advantage of the man’s next of kin, but one wonders why they should
be protected if he himself was satisfied with the arrangement; in
the third, to hold the marriage void might merely encourage like
minded people to enter into similar arrangements and public policy
would best be served by saddling them with the legal consequences
of their deceptive conduct. Not only is the logic of Clayden J.’s
argument in Martens v. Martens unassailable, but social policy on
balance demands that a marriage should not be void simply because
it is a sham. If there is a real danger that immigration laws will be
abused, let them be amended.
On the other hand, however, as Collingwood, J., said in Silver
V. Silver: “I can see no social advantage in insisting upon the
maintenance of a union which has been a mere travesty from the
beginning”. 15 It is significant that he granted the wife a decree of
divorce on the ground of her husband’s adultery and that Karminski,
J., found the marriage void (or perhaps voidable) for duress in
15 [.1955] 1 W.L.R. 728, at p. 781.
McGILL LAW JOURNAL
[Vol. 15
H. v. H. This brings us to the second question raised by this case:
is the validity of the marriage affected if one party would not have
entered into it but for the other’s fraud? English ecclesiastical law
adhered strictly to the principle that fraud of itself would not make
a marriage void. The locus classicus is the case of Swift v. Kelly, 16
in which the Judicial Committee of the Privy Council laid down the
rule that
(N)o marriage shall be held void merely upon proof that it had been
contracted upon false representations, and that but for such contrivances,
consent never would have been obtained.’ 7
If the fraudulent misrepresentation leads to a mistake, the marriage
might be void on that ground, but (statutory provisions apart) this
will occur only when one party is mistaken as to the other’s identity
or as to the nature of the ceremony. If A marries B believing him
to be C, the marriage will be void only if A goes through the ceremony
with a completely different human being from that whom she intends
to marry (as might occur in the case of identical twins). If A marries
the individual she intends to marry, it is immaterial that he has
fraudulently led her to believe that he is someone else, as happened
in C. v. C.,’8 where the petitioner was held to be validly married
to a rogue called Coley who had passed himself off as a well known
boxer called Miller. Similarly, the marriage will be void if one
party does not realise that the ceremony is one of marriage at all,
as in Kelly (otherwise Hyams) v. Kelly,19 where the petitioner thought
that it was a betrothal ceremony; but it will not be void if the mistake
merely goes to the quality of the marriage, for example if one party
wrongly believes that he is contracting a polygamous union 20 or a
union that will be recognised by the religious denomination of which
he is a member. 21
The justification for the rule that fraud of itself is not to invali-
date a marriage is that any other solution would lead to great un-
certainty and enable the parties to have the marriage annulled on
the flimsiest of pretexts. Despite the sympathy one must feel for
a person in the position of the plaintiff in Johnson V. Smith, it is
submitted that the principle in Swift v. Kelly is correct and socially
desirable. Otherwise a marriage could be declared void on the ground
that one party had been deceived about the other’s fortune, social
16 (.1835), 3 Knapp 257, 12 E.R. 648.
17Ibid., at p. 293, at p. 661.
Is [1942] N.Z.L.R. 356.
19 (1932), 49 T.L.R. 99.
2 0 Kassim (otherwise Widmann) v. Kassim (otherwise Hassim), [1962]
P. 224, [1962] 3 All E.R. 426, [1962] 3 W.L.R. 865.
21 Ussher V. Ussher (otherwise Caulfield), [1912] 2 I.R. 445.
No. 2]
NOTES
position or chastity. A suitor should be encouraged to make enquiries
about the first two qualities before the event if they are of importance
to him, and one can only question whether it would be right to
permit a man to throw up a marriage on discovering months or even
years after the ceremony that his wife had fraudulently led him
to believe that she was a virgin. (One can only speculate in passing
how many marriages might be void for this reason.)
Swift v. Kelly has been faithfully followed in England, Australia
and New Zealand. It was also followed by Sirois, J., in the Saskat-
chewan Court of Queen’s Bench in Kokkalas (otherwise Rokana)
v. Kokkalas.22 The facts were indistinguishable from those of Johnson
v. Smith: a man, having achieved his object by completing immi-
gration formalities after the ceremony of marriage, immediately
left his wife, and the marriage was never consummated. The wife’s
claim for nullity was based on fraud and was dismissed on the
ground that she had freely consented to the marriage. The case
was cited to Stewart, J., in Johnson v. Smith but he declined to
follow it saying that, in his opinion, Sirois, J., had stated the principle
too broadly. For the reasons stated above, the present writer, with
the greatest respect to the learned judge, feels compelled to disagree
with him on both the grounds on which he based his decision. Neither
the fact that the marriage was a sham nor the fact that it was
celebrated only in consequence of the defendant’s fraud is a sufficient
ground for declaring it void, and for the same reasons both facts
in combination cannot entitle a party to relief which they do not
offer him in isolation.
The real justification for the decision in Johnson v. Smith is that
it released the plaintiff from a union which was a marriage in name
only. The new Federal Divorce Act 23 now ensures that she would
not be tied to the defendant against her will for all time. Under
section 4 (1)
(e) she could now get a divorce after three years’
separation; she might in fact be successful after one year under
section 4 (1)
(d) on the ground of the husband’s wilful refusal
to consummate the marriage. It is submitted that this is the proper
remedy and that the wife should seek relief in divorce; now that
this Act is on the statute book, there is no justification for straining
the law of nullity so far that the whole concept of marriage as a
legal institution might be threatened.
P.M. BROMLEY *
22 (1965), 50 D.L.R. (2d) 198, 51 W.W.R. 511.
23-1.6-17 Eliz. II, S.C. 1967-68, c. 24.
*M.A.
(Oxon), of the Middle Temple, Barrister-at-Law, Professor of Law,
Victoria University of Manchester.
