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Trusts must fund children of bigamous marriage

Duke’s latest offspring treated as legitimate

1 August 2011

Children from the 13th Duke of Manchester’s second, bigamous, marriage can benefit from family trusts, the High Court has ruled.

The court heard that Alexander Montagu lived in Australia, where he married, before moving to California in 1986.

Mr Justice Floyd said the duke “had not troubled to become divorced” from his first wife before marrying his second.

Delivering judgment in Trustees of the Duchy of Manchester English and Irish Settled Estates v The Hon. Alexander Montagu and others [2011] EWHC 1856 (Ch), Floyd J said the duke’s second wife, Wendy, was 24 and working at a law firm in Orange County, California, when she met him at a country music club.

“The duke introduced himself to Wendy and showed her his business card which displayed his family crest and title,” Floyd J said. “He asked for Wendy’s phone number so he could take her out for dinner.”

The court heard that a year-long courtship followed, leading to a “ceremony of marriage” in 1993.

However, the duke failed to mention to Wendy that he was already married, meaning that the second marriage was “bigamous and void”.

The High Court heard that three years into the marriage with Wendy the duke divorced his first wife in Australia.

In the meantime he had two children with Wendy – The Hon. Alexander Michael Charles David Francis George Edward William Kimble Drogo Montagu and The Hon. Ashley Faith Maxine Nell Beatrix Montagu.

Floyd J said the duke separated from Wendy and the bigamous marriage was dissolved in 2007, but at the time of the celebration of her marriage in 1993 there was “absolutely no doubt” that Wendy believed it was genuine.

The trustees, meanwhile, paid mainten-ance to her two children until 2009, when they discovered that the marriage was bigamous. Mr Justice Floyd said that “at first blush” only the legitimate issue or legitimate descendants of the duke could benefit from the family trusts.

However, under the Legitimacy Act 1959, the children of a void marriage should be treated as legitimate if “at the time of the act of intercourse resulting in the birth” or at time of the marriage celebration if later, both or either parties ‘reasonably believed’ that the marriage was valid.

He said this depended on the father of the children being domiciled in England at the time of the children’s births.

While Floyd J said he was not invited to come to a conclusion on the duke’s domicile, the only other two possible domiciles, Victoria/New South Wales in Australia or California, both had provisions enabling the children of bigamous marriages to be treated as legitimate.

Mr Justice Floyd concluded that Alexander and Ashley acquired the status of legitimacy by reason of the law of domicile of each of their parents.

“That is the case whether the 13th duke was domiciled in England, in Australia or in California,” he said.

“It follows that I consider that the trustees are entitled under the terms of the settlements to provide for Alexander and Ashley.”

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