Miller v Major [1906] HCA 62

Miller v Major [1906] HCA 62

A marriage within the prohibited degrees of affinity, as prescribed by 28 Henry VIII c.7 (stepfather and stepdaughter), was introduced into the law of New South Wales at settlement, and remains voidable at the suit of an interested party while both are alive; the Supreme Court has jurisdiction to declare such a marriage void on petition. The appeal must be dismissed as the law was properly applied below.

Parties
Appellant: Miller; Respondent: Major (falsely called Miller); Proctors for Respondent: Fisher & Macansh
Jurisdiction
Australia
Judgment Date
09 October 1906
Procedural Posture
Appeal / Special Leave to Appeal—application for Extension of Time and Reduction of Security; Determination of Appeal
Outcome
appeal dismissed
Legal Topics
Prohibited Degrees of Marriage, Nullity, Applicability of English Law, Appeals—security for Costs, Affinity
Family Law Marriage Nullity of Marriage Appeals Procedure Prohibited Degrees of Marriage Nullity Applicability of English Law Appeals—security for Costs +1 more

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Parties

Miller

Appellant

Major (falsely called Miller)

Respondent

Fisher & Macansh

Proctors for Respondent

Procedural Posture

Appeal / Special Leave to Appeal—application for Extension of Time and Reduction of Security; Determination of Appeal

Legal Issues

  1. 1 Whether a marriage within the prohibited degrees of affinity (stepfather and stepdaughter) is voidable under the law in force in New South Wales
  2. 2 Whether the Act 28 Henry VIII c.7 is part of the law in New South Wales
  3. 3 Whether the High Court has power to extend time for lodging security after an appeal has lapsed

Ratio Decidendi

A marriage within the prohibited degrees of affinity, as prescribed by 28 Henry VIII c.7 (stepfather and stepdaughter), was introduced into the law of New South Wales at settlement, and remains voidable at the suit of an interested party while both are alive; the Supreme Court has jurisdiction to declare such a marriage void on petition. The appeal must be dismissed as the law was properly applied below.

Court Disposition

appeal dismissed

Orders

  • special leave to appeal granted, conditional on setting down for present sittings
  • security for appeal reduced to £1