Axon v Axon [1937] HCA 80

Axon v Axon [1937] HCA 80 - HCA 1937 case summary — Zoe

[30]

The complainant proved that she was married to the defendant on 6th January 1932. If no further evidence had been given, she was entitled to an order. But in cross-examination she admitted that she had been married on 15th July 1911 to one Mauro Herzich. She lived with him at Port Pirie until 1923. In that year he left her and went to Broken Hill. She took proceedings for maintenance on the ground of desertion and obtained an order for maintenance against him at the rate of £4 per fortnight. She received no payment under the order, and she has never seen him since. She heard from some unnamed person that he was dead. She placed advertisements in the newspapers The Chronicle, The Advertiser and Truth, and made inquiries from the police at Broken Hill. She obtained no information as the result of these advertisements and inquiries. She did not produce any certificate of Herzich's death. No other witness who might have been expected to hear of or from Herzich was called to say that he had not so heard. On the other hand, the defendant called evidence directed to show that Herzich had been seen at Port Pirie in 1936. If this evidence had been accepted, it would have concluded the matter. The justices, however, said that doubts arose as to whether the person seen in December was in fact Herzich. One witness said that this man's name was Herzog. The justices said : - " After full consideration of the whole of the evidence a substantial doubt remains in the minds of the court as to whether the man Herzog was in fact identical with Herzich. In the opinion of the court strict proof is required of the existence of Herzich, if the defence set up in the case is to succeed, and the defendant has failed to discharge the onus which lies upon him in this regard to the satisfaction of the court." They said: " It has not been proved to the satisfaction of the court that Mauro Herzich, the former husband of the complainant, was alive at the date when her marriage to the defendant Axon was celebrated."

[46]

casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispens- able to the efficacy of the ceremony. It may be true that, until the decision in the Court of Appeal in Monckton v. Tarr (1), it was not easy to find English authority directly deciding that the presumption extended to the freedom of each spouse from the impediment of a subsisting prior marriage. But the rule semper presumitur pro matrimonio was not, I think, understood as limited to ceremonial regularity, and there was direct Dominion and American authority. Indeed, in America, the presumption against invalidation by a prior subsisting marriage has been pressed to very great lengths. It has been considered to impose upon those seeking to invalidate the later marriage the burden of proving not only the performance of the earlier ceremony and the survival of the parties to it, but also that the marriage has not been dissolved by judicial decree - a burden which, apparently, has proved no light one where so many jurisdictions may be invoked (See Harvard Law Review, vol. 30, pp. 500-503). Thus, when it appeared that between the appellant and the respondent a ceremony of marriage had been duly performed, enough had been shown to sustain the burden of proving that she was his lawful wife and she became entitled to a finding upon that issue in her favour unless circumstances were proved justifying an inference of fact sufficient to invalidate the marriage between them. The facts relied upon by the respondent for this purpose were two, namely, that she had already married Mauro Herzich and that on the date of her marriage to the appellant Mauro Herzich was still alive. The first of the two facts was fully proved, and it is the second that raises the question on which the case depends. When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker

[48]

the support for the inference. If it appears that there were circum- stances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man's fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts. "Tn England it is only a general supposition of continuance, applic- able to everything which has once been proved to exist - to an orange as well as a man ; - a presumption which serves, in reasoning, to relieve from the necessity of constantly re-proving, from minute to minute, this once-proved fact of existence" (The late Professor J. B. Thayer, Preliminary Treatise on Evidence at Common Law (1898), p. 348). As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceed- ings in which the question arises. If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communica- tions from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives. In Lal Chand Marwari v. Mahaut Ramrup Gir (1) Lord Blanesburgh, speaking for the Privy Council, said that there is only one presumption and that is that at the time when the suit was instituted the man there in question was no longer alive. " There is no presumption at all as to when he died. That like any other fact is a matter of proof." His Lordship observed as not a little remarkable that the contrary theory was still widely held, although so often shown to be mistaken. After stating how it reappeared in the case before the board, he continued : - ' Searching for an

At a glance

Court

Decision date

Before

Source

Judgment (110 paragraphs)