Aird & Hamilton-Reid

[2007] FamCA 4

FAMILY COURT OF AUSTRALIA

Aird & Hamilton-Reid [2007] FamCA 4

FAMILY LAW - NULLITY OF MARRIAGE - FRAUD - respondent falsely misstated his age and marital status (never married) to wife and celebrant and did not disclose existence of 2 children of earlier marriage

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B(1)

Deniz v Deniz (1977) FLC 90-252
Otway v Otway (1987) FLC 91-807
Al Soukmani v El Soukmani (1990) FLC 92-107
Hosking v Hosking (1995) FLC 92-579
Osman v Mouralli (1990) FLC 92-111
Swift v Kelly (1835) 3 Knapp 257

APPLICANT: Ms Aird

RESPONDENT: Mr Hamilton-Reid

FILE NUMBER: MLF 1269 of 2006

DATE DELIVERED: 15 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 13 September 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood of counsel

SOLICITOR FOR THE APPLICANT: Beckwith Cleverdon Rees

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1.        The applicant’s application filed 2 August 2006 is dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1269  of 2006

Ms Aird

Applicant

And

Mr Hamilton-Reid

Respondent

REASONS FOR JUDGMENT

Introduction

1.The applicant Ms Aird seeks a decree of nullity in respect of the marriage recorded in Australian Certificate of Marriage Registered number … (“the marriage certificate”) which is annexed to her affidavit sworn 27 July 2006 and filed on 2 August 2006 in support of her application filed on the same day.  This was the only affidavit relied upon by the applicant, and references to numbered paragraphs of “her affidavit” appearing hereafter are references to that affidavit.  The applicant was represented by Mr Wood of counsel.  There was no appearance by or on behalf of the respondent. The applicant proved service of her application on the respondent and the hearing proceeded in his absence.

The law

2.Section 51 of the Family Law Act 1975 provides that:

51An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

3.The grounds on which a marriage may be found to be void are set out in section 23B of the Marriage Act 1961 (Cth).

23B(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where¾  

(a)either of the parties is, at the time of the marriage, lawfully married to some other person;

(b)the parties are within a prohibited relationship;

(c)by reason of section 48 the marriage is not a valid marriage;

(d)the consent of either of the parties is not a real consent because¾  

(i)       it was obtained by duress or fraud;

(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e)either of the parties is not of marriageable age, and not otherwise. (my emphasis)

4.Mr Wood of counsel who appeared for the applicant relied on the highlighted words of section 23B(1) in his submissions on behalf of the applicant, that is to say, on the grounds of fraud and mistaken identity. Mr Wood referred me to a number of decisions of single judges of this court which themselves contain references to authorities from the UK, New Zealand, and other countries.

Facts relied on

5.The marriage certificate records that on 20 March 2004 the applicant married Mr Hamilton-Reid, the respondent to this application.

6.        The certificate records certain entires under the heading ‘Bridegroom’.

These include:

1.        Surname   .   [Hamilton-Reid]

5.        Conjugal status   .     Never married

7.        Date of birth  . July 1973

7.        In paragraph 2 of her affidavit, the wife deposes:

At the time of my marriage I understood my husband to be [Mr Hamilton-Reid] and was informed by him that he had never previously been married and that he was born in July 1973.

8.The wife later deposes having become aware from various sources that these facts were untrue.  She deposes, in paragraph 4, that the parties separated in January 2006.

9.In paragraph 5 of her affidavit she deposes that the respondent received a letter in or about August 2005 from UK solicitors TJ & Co.  This letter became exhibit ‘W1’ in the proceedings. The letter is dated 16 August 2005 and is addressed to “[Mr Reid],” and was written on the instructions of [Mrs Reid].  The letter is headed “Contact Issues” and recites that:

By way of history, we understand that you met our client in or around 1984 and were married [in] May 1989.

The letter continues:

From the marriage there are two children of the family [L] born [in] January 1991 and [S] born [in] October 1996….

And later:

Divorce proceedings were issued and the Decree Absolute pronounced in July 1998.

10.The writer of the letter also asserts that child support was paid by the respondent on a voluntary basis until October 2002, when payments ceased.

11.In paragraph 5 of her affidavit, after describing the receipt of this letter, the applicant deposes that its contents made her aware for the first time that the respondent’s name was “[Reid]”, not “[Hamilton-Reid]”, that the respondent was previously married, and that there are two children of that marriage.

12.In paragraph 8 of her affidavit, the applicant deposes to the fact that the respondent’s passport shows his date of birth as July 1968 (not July 1973 as shown in the marriage certificate).  A copy of what the applicant describes as the “face page” of the respondent’s passport is annexed to her affidavit.  It shows the date of issue of the passport as  December 2002.  In this document, the respondent’s date of birth is shown as  July 1968, not  July 1973.  Another document annexed to the applicant’s affidavit tends to support the 1968 birth date for the respondent, although it is not conclusive.

13.I will note at this point that the letter - exhibit ‘W1’ - appears to be exactly what it purports to be – a solicitor’s letter that recites some background facts and then goes on to deal with some issues of concern to the party instructing those solicitors.  I have no reason to doubt the assertions of fact in that letter about the respondent’s earlier marriage and divorce and the existence of two children of that marriage.  It is clear from the letter that it is written on behalf of a Mrs Reid, and the children referred to in it both have the surname “[Reid]”.  As to the respondent’s surname, however, I do not accept that the letter establishes that his surname is “[Reid]” not “[Hamilton-Reid]” as claimed by the applicant.

14.To begin with, the letter is addressed to Mr SJHamilton Reid (my emphasis), raising the possibility that “[Hamilton]” was at one stage another given name for the respondent, rather than part of the surname.  The face page of the respondent’s passport issued in December 2002, shows the holder’s surname to be “[Hamilton-Reid] with the given names “[SJ]”.  Exhibit ‘W1’ states that the respondent was divorced from the children’s mother in 1998.

15.The letter further recites that the respondent subsequently travelled to Australia.  The passport was issued in December 2002 in the name of “[Hamilton-Reid]”.  Presumably, the respondent would have been required to provide proof of his name when applying for a passport.  This is usually proved by the birth certificate, but of course a subsequent change of name (by deed poll, for example) may also take place, and a passport may be issued in the new name.

16.One possibility is that the respondent, having been known as “[Reid]” until the late 1980’s, when he was divorced from the person on whose behalf the letter was written, changed his name to Hamilton-Reid, obtained a passport in that name and used that surname from about the time of his arrival in Australia.

17.Whatever the history of the respondent’s use of the surnames “[Reid]” and “[Hamilton-Reid]” may be, I cannot conclude, on the evidence before me, that his surname at the time of marriage to the applicant was any different from the name shown as his family name on the marriage certificate, namely “[Hamilton-Reid]”.  In so far as the solicitor’s letter (exhibit ‘W1’) points to the use by the respondent of the surname “[Reid]”, it may be the case, as I have already postulated, that during his marriage to the person on whose behalf exhibit ‘W1’ was written, he was indeed known by that name.  The passport establishes to my satisfaction, however, that by the time of his marriage to the applicant in 2004, he was using the surname “[Hamilton-Reid]” and was able to satisfy the issuing authority for the passport in 2002 that this was his surname.

18.I cannot therefore accept the applicant’s assertion that she was deceived (or mistaken) as to the respondent’s name at the time of the marriage.

19.      In paragraph 10 of her affidavit, the applicant states:

Had I been aware of the true situation in relation to my husband’s previous marriage, date of birth and children I would not have entered into marriage with him and state that I have been induced into marrying him by fraud and I do humbly request that this Honourable Court declare that the marriage entered into by me [in] March 2004 is null and void. 

20.It is immediately clear from this paragraph that the applicant was not asserting that she was induced by any misstatement of the respondent’s surname to enter into marriage.  Equally, she does not assert that any mistake – whether induced by the respondent or not – as to his surname – caused her to consent to the marriage in circumstances where she would not otherwise have done so.  Taken together with my analysis of the evidence as to the respondent’s surname, and my finding that there was no relevant fraud or mistake as to that surname, I do not consider that the applicant’s application requires further consideration of the ground based on mistake and I will therefore turn to the law concerning fraud in the context of nullity of marriage.

Fraud

21.The fraud alleged is that the respondent misled the applicant as to his marital history at the time of marriage and as to his date of birth, and did not disclose the existence of two children of his former marriage.  I am satisfied by the contents of the marriage certificate that the respondent misrepresented his marital history to the wife and to the marriage celebrant leading the celebrant to enter “never married” on the certificate.  I am satisfied that he also misrepresented his date of birth to the celebrant and to the wife and that the date shown in his UK passport (July 1968) is likely to be the correct date.

22.I also accept the wife’s evidence that she was unaware of the existence of the two children of the respondent’s earlier marriage until she saw the letter (exhibit ‘W1’).

23.I accept the wife’s evidence set out in paragraph 10 of her affidavit (reproduced in full above) that she would not have married the respondent had she been aware of these facts.  This evidence must be accepted, in my view, where it is unchallenged by the respondent and whilst highly subjective as to the materiality of the misrepresentations, cannot be said to be inherently improbable.

24.Mr Wood also relied on the giving of a false name as part of the respondent’s fraud and I have already found that the evidence is insufficient to establish any relevant misrepresentation as to the respondent’s surname.

25.The question that arises under section 23B(1)(d)(i) is whether the wife’s consent to marriage was not a real consent because it was obtained by fraud.

Case law on fraud as basis for nullity

26.A number of cases have considered this issue and Mr Wood took me to some of them.  Mr Wood relied heavily on the decision of Frederico J in the case of Deniz v Deniz (1977) FLC 90-252. The report discloses that the husband in that case, a Turkish national, was seeking permanent residence in Australia. To assist his case for permanent residence, he set out to marry an Australian citizen. He persuaded the parents of a girl still in fourth form at school to consent to the girl marrying him. She also consented, believing that he loved her. After the marriage, the husband did not consummate the marriage and when the wife became aware of his real purpose in going through the ceremony with her – to bolster his case for permanent residency – she attempted suicide.

27.Given that the wife’s case before me rested substantially on the reasoning of Frederico J in granting a decree of nullity in that case, I will set out relevant extracts from his Honour’s judgment:

28.      The following extracts appear at (1977) FLC, pages 76,354 – 5.

Frederico J.: [Having explained the facts and summarised the relevant legislative provisions his Honour made the following remarks concerning fraud in this context.] 

As to fraud, this has been interpreted over the years so as to confine its application to fraud involving identity of a party or the nature of the ceremony. For instance in Scott v Scott (1900) 26 V.L.R. 588 Hood J. adopted the statement of the Privy Council in Swift & Kelly (1835) 3 Knapp 257 at 293:

It would seem, indeed, to be the general law of all countries, as it certainly is of England, that unless there be some positive provision of statute law requiring certain things to be done in a specified manner, no 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.  Unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made. (my emphasis)

29.The emphasised passages contain what I will refer to as the traditional approach to nullity based on fraud.  His Honour continued to consider the legislation, and its interpretation.

… However statutory enactments have now introduced entirely new concepts, and jurisdiction is no longer derived from ecclesiastical principles. If fraud is still to be limited to the identity of a party or to the nature of the ceremony, then it would seem that the words ``or fraud'' after ``duress'' in sec. 18(d)(i) of the Matrimonial Causes Act 1959, in sec. 51(2)(d)(i) of the Family Law Act 1975 (as originally enacted) and now in sec. 23(1)(d)(i) of the Marriage Act 1961 (as amended) are merely surplusage, for fraud as to identity or as to nature of the ceremony is essentially included in the provisions relating to mistake which are immediately following the reference to fraud in each enactment.

The legislature must have intended the words ``or fraud'' to have some wider meaning, and it would follow that the Court is bound in the exercise of its jurisdiction under the Family Law Act to give effect to such wider meaning. The Court should not be deterred from doing so merely by reason of there being no reported case under the superseded Matrimonial Causes Act which appears to give such effect to the words. Perhaps any previous reluctance of the Courts in this regard was influenced by difficulty in providing proper safeguards. For instance there would be general consternation if an application was granted on the basis of fraud by reason of one party deceiving the other as to being possessed of natural teeth. The case of the person who marries to gain money rank or title as distinct from the more usually professed reasons would also cause concern.  Clearly the fraud relied on must be one which goes to the root of the marriage contract.

But however stringent are the limitations to be placed on the words ``or fraud'' as used in the legislation, if they are to be given any meaning they must be taken to include the gross circumstances of the present case. 

This is a case of consent being induced by trick, not as to identity or as to the nature of ceremony, but as to the very concept of the marriage itself. Despite the warnings in cases such as Moss v Moss ((1897) P. at 269) of the dangers of too closely equating a marriage contract with a commercial contract, this is a case in which there has been a total failure of consideration. 

The respondent has not had the slightest intention of fulfilling in any respect the obligations of marriage.  He has used the unfortunate applicant as a tool of his own convenience.  His conduct amounts to a total rejection of the institution of marriage and what it stands for. He clearly deceived the applicant into marriage for his own personal motives and with the intention of summarily rejecting her immediately after the ceremony. (my emphasis)

30.The emphasised passages identify the basis on which his Honour applied what I will refer to as the wider interpretation of the statute, and founded his Honour’s grant of relief.  This decision has been considered (and not followed) in subsequent cases and Mr Wood referred me to a number of these.  A clear example is provided by the decision of McCall J in the case of Otway v Otway (1987) FLC 91-807.

31.      In that case, his Honour was satisfied that the respondent:

…only married the applicant to enable her to remain in Australia so that at an appropriate time in the future she could leave him to resume her relationship with B.  I am prepared to accept the applicant's evidence that if he had been aware of this he would not have married the respondent.

However, accepting all of this, the question that arises is whether this constitutes fraud within the meaning of the Marriage Act that vitiates the consent with the result that the purported marriage is void.

Counsel for the applicant relied heavily, if not solely, upon the decision of Frederico J. in Deniz and Deniz (1977) FLC ¶ 90-252. It was submitted that the facts in the two cases were similar. In each case the respondent entered into a marriage without any intention of fulfilling the obligations of marriage. In each case the respondent entered into the marriage for personal motives and with unilateral reservations about the consequences of the marriage. Accordingly, it was submitted that, as was found in Deniz, I should also find in this case that fraud had been established and grant a decree of nullity.

32.McCall J then considered the reasoning of Frederico J in Deniz (above)  and in particular his wider interpretation of the relevant legislation:

In the case of Deniz his Honour took the view that the addition of the ground of mistake (either as to the identity of the other party or as to the nature of the ceremony performed) to the ground of fraud as evidencing no real consent to the marriage, rendered the ground of fraud superfluous if it was to be given the restricted meaning attributed to it in the past.  Accordingly, in his view, there was therefore, because of the specific statutory enactments separating fraud from mistake in the Marriage Act of 1961, sufficient evidence of intention that the word “fraud” was to have a wider meaning than attributed to it in the past. He recognised that some limitation had to be imposed on the word “fraud” and it could not be equated to fraudulent misrepresentation as to the quality of a party about to be married.  Nevertheless, in his view, however stringent were the limitations to be placed on the meaning of ``fraud'' the concept of fraud was wide enough to cover the circumstances of that particular case. (at page 76,086).

33.     McCall J then rejected the wider interpretation in this passage:

With the greatest respect to his Honour, I find myself unable to agree with him.  Fraud and mistake, long before the passage of the Matrimonial Causes Act 1959, were both recognised as grounds which could be relied upon to demonstrate the absence of a real consent to the marriage. (See Halsbury's Laws of England, 3rd ed., Vol. 19, p. 775.) The purpose of specifically designating mistake as to the identity of the party, or as to the nature of the ceremony performed, separately from fraud may well have been to ensure that an innocent mistake not induced by fraudulent conduct of the other party was sufficient to establish the absence of a real consent.  (at page 76,087).

34.McCall J then considered some American nullity cases that point to a much wider construction of fraud in the context of nullity proceedings, where relief had been granted based on misrepresentations as to financial capacity in one case, and ulterior motive in another – to enable a party to enter the country.  His Honour noted however, that English and Canadian courts had rejected this approach and proceeded to endorse the approach of the earlier authorities (some of which are cited by Frederico J in Deniz) that consent to marry induced by fraud is not sufficient to make out a case for nullity, and that “mental reservations about the future of the marriage even where such reservations are unknown to the other party” (such as in Deniz) are also insufficient.

35.Before leaving the case, I should point out that his Honour considered that the case before him was distinguishable, on its facts, from Deniz.   This was because in Otway, the respondent’s reservation about the future of the marriage  – it being her intention to resume cohabitation with another man – was, at the time of the marriage, accompanied by an urgent need to establish a basis for remaining in Australia.  Marriage would provide such a basis and the applicant, aware of this need, consented to marry her to assist her in obtaining the necessary status.

36.Obiter as it may therefore be, McCall J’s analysis of the law, and his rejection of Frederico J’s reasoning in Deniz is, I consider, very persuasive indeed.

37.Mr Wood also relied on the decision of Kay J in Al Soukmani v El Soukmani (1990) FLC 92-107.

38.In that case, the parties to the marriage were of Lebanese Moslem background, and the husband travelled to Australia to marry the wife.  It was the applicant wife’s case that the respondent had gone through the ceremony of marriage in order to remain in Australia.  The marriage was neither consummated nor was it ever put into effect in accordance with the relevant custom.  It complied, however, with the Marriage Act and was duly registered.  The husband appeared in person and disputed that his sole motive in marrying the applicant was to enable him to stay in Australia.  The evidence was inconclusive in a number of areas.  His Honour took the view that even if the wife made out her case at its highest point (ie, that the respondent’s sole motive in marrying her was to be able to stay in Australia), a case for nullity would not be made out, and he dismissed the application.

39.In reaching his conclusion, Kay J referred to the cases of Deniz and Otway, and also to an exchange of differing academic points of view about those cases that had appeared in a Family Law publication.

40.Importantly, for the case before me, his Honour concluded his review of the law by upholding what I will call the traditional approach to nullity cases evident in Otway, which rejects the “reservations about the future of the marriage” as a ground for nullity.  His Honour held:

If the marriage is void it has to be void for all purposes, and there have to be some external indicia that can be measured at the time the ceremony is entered into and not something that can be subjectively measured by subsequent events in my view. (at page 77,712) (my emphasis).

41.      Later, on the same page, his Honour held:

The long line of authority which indicates that the subjective intent of the parties at the date of the marriage is irrelevant is a preferable line and in the circumstances, even if the wife was able to demonstrate on the evidence the case as high as her counsel puts it, in my view there would not be the ground made out for the application.

42.About three weeks later, Nygh J delivered judgment in the matter of Osman v Mouralli (1990) FLC 92-111. The facts have much in common with those in Al Soukmani (above) and Nygh J applied the traditional approach in rejecting the application.

43.A further rejection of Frederico J’s interpretation of the legislation in Deniz is to be found in the decision of Lindenmeyer J in Hosking v Hosking (1995) FLC 92-579.

44.The application was brought by an Australian man who had married a woman of Chinese nationality who was seeking to stay in Australia – her visa was due to expire.  She left the husband to pursue another (pre-existing) relationship four days after the marriage.  There are many further facts recited in the judgment but the material facts pleaded by the applicant (husband) were:

(1)At the time of the purported ceremony of marriage the applicant held the belief that the respondent was entering into a marriage with the applicant with the intention of the parties properly residing together and being husband and wife.

(2)The respondent fraudulently obtained the applicant's consent to marriage on the basis that the respondent and the applicant reside or act as husband and wife.

(3)      The marriage was never consummated.

(4)The applicant and respondent did not at any stage reside as husband and wife wherein the respondent resided under the same roof, but separately from the applicant from the date of the marriage [24 November 1993] until approximately 28th November, 1993 when the respondent left the applicant's premises to take up residence with a de facto partner.

(5)The respondent married the applicant in order to remain in Australia, on the basis that the respondent's visa for residency in Australia is due to expire in the near future and at the first opportunity available the respondent left the applicant and shortly thereafter took up in a de facto relationship. The respondent only entered into the purported ceremony of marriage in an attempt to obtain permanent residency in Australia.

(6)If the applicant had been aware of the respondent's intentions to resume a de facto relationship and to marry the applicant for the purposes of remaining in Australia and not for the purposes of entering into a valid and full marriage with the applicant, the applicant would not have proceeded with the purported ceremony of marriage to the respondent.

45.It is immediately apparent that the case has much in common with those cases already discussed in which the respondent’s ulterior motive(s) – or reservations about the future of the marriage – at the time of entering the marriage have been held to be insufficient to attract the relief sought.

46.After a detailed analysis of the evidence before him, Lindenmeyer J addressed the issue “The law of fraud in a nullity context”, and turned to the reasons of Nygh J in Osman v Mouralli (above) which firmly endorsed the traditional approach by extensive reference to and quotations from the English authorities, including the famous passage from the judgment of the Privy Council in Swift v Kelly that is set out and fully cited in the extracts from the judgment of Frederico J in Deniz that I have set out in paragraph 28 of this judgment.  His Honour then considered and approved a number of earlier decisions of the Family Court of Australia, including the judgment of Kay J in Soukmani, and the decision of McCall J in Otway, to which I have already made reference.

47.      His Honour then turned to the decision in Deniz.:

Standing against these more recent cases is the earlier decision of Frederico, J. in Deniz and Deniz (1977) FLC ¶ 90-252, upon which counsel for the applicant placed much reliance. That case, which counsel for the applicant husband submitted was ``logically indistinguishable'' from the present one, involved, according to the headnote, a marriage between an Australian woman and a Turkish citizen, which the latter entered into for the purpose of securing permanent residency in this country. It would appear that he had seduced the wife in that case and had no use for the marriage beyond his immigration goals. The wife sought and was granted an annulment. The Court adopted a broader interpretation of the word “fraud” in the relevant section of the Marriage Act, which is not materially different from that applicable in this case. At 76,355 his Honour said:

This is a case of consent being induced by trick, not as to identity or as to the nature of the ceremony, but as to the very concept of the marriage itself.

His Honour stated further that: 

The respondent has not had the slightest intention of fulfilling in any respect the obligations of marriage.  He has used the unfortunate applicant as a tool of his own convenience.  His conduct amounts to a total rejection of the institution of marriage and what it stands for.  He clearly deceived the applicant into marriage for his own personal motives and with the intention of summarily rejecting her immediately after the ceremony.

Yet his Honour did recognise the more traditional view in that case.  He said, at 76,354: 

As to fraud, this has been interpreted over the years so as to confine its application to fraud involving identity of a party or the nature of the ceremony.

His Honour then cited Scott v Scott (1900) 26 VLR 588 per Hood, J., adopting the Privy Council in Swift v Kelly (1835) 3 Kn 257, 293, in support of the traditional position. …
There appear to have been two bases for his Honour's decision in Deniz and Deniz (supra). The first is that the wording of s. 23(1)(d)(i), which is identical to s. 23B(1)(d)(i), indicated a new and expanded role for the term ``fraud''. His Honour took the view that s. 23(1)(d)(ii), which specifically provides, as a ground for a decree of nullity, mistake as to the identity of the other party or the nature of the ceremony, would include a fraudulently induced mistake as to those matters. Therefore, he reasoned, the presence of the term “fraud” in (1)(d)(i) (in ss. 23 or 23B) would be “merely surplusage”, had not the legislature intended it to play a more expansive role than it did at common law. His Honour also acknowledged, however, that the legislation had had this structure since 1959, when s. 18(d)(i) of the Matrimonial Causes Act 1959 was the governing provision.

No reference was made by his Honour to any extrinsic material supporting his view, nor did he rely on any other feature of that provision or of the legislation generally.  In particular, there is no definition of “fraud” in the Marriage Act.  In short, there appears to be nothing to suggest that a departure from the traditional view, as identified by his Honour, was intended by the legislature in enacting either this section or its 1959 predecessor. This argument was rejected by Nygh, J. in Osman (supra), and for the same reasons I too reject it.

Indeed, as a matter of statutory interpretation, it may be appropriate to take note of the presence in s. 23B(1)(d)(i) (and its counterpart in s. 23), of the term “duress”, which appears immediately before “fraud” in that provision, viz.:

“... (d)the consent of either of the parties is not a real consent because- 

(i)it was obtained by duress or fraud” (the emphasis is mine). 

In the case of duress, the relevant time at which a person must be under the required degree of oppression is at the ceremony itself.  That is, the question is not whether a person is under duress when he or she accepts a proposal of marriage, however menacingly put, but when the ceremony itself is performed.  As much is clear from the discussion of duress in the cases of Cooper (falsely called Crane) v Crane [1891] P 369; Kecskemethy (falsely called Maygar) v Kecskemethy (1961) 2 FLR 437, 448; Williams v Williams [1966] VR 60, 63.

Thus, there exists, in the context of duress, a clear need for proximity with the ceremony; the actual point at which two people become married. The fear arising from duress must be acting upon the relevant party at that point. By analogy, and also by virtue of the noscitur a sociis principle and because, in my opinion, the two terms are ejusdem generis, it is difficult to see why the term “fraud” should import considerations beyond the scope of the rest of s. 23(1)(d) or s. 23B(1)(d), as the case may be. To take such a broad view would allow inducements and misrepresentations, which, while morally shameful, are merely precursors to the actual marriage of the parties, to render the marriage void. The giving of the consent to a marriage at the ceremony, rather, is the act with which a court must concern itself when questions of the essential validity of a marriage are raised.  The cases with respect to duress, which I have set out above, establish that it is the actual choice, not merely the reasons for or inducements to that choice, that is the concern of the court. In this way, the traditional interpretation of “duress” and also of “fraud” in this context is much more in keeping with the drafting of the section than, in my respectful opinion, the interpretation adopted by his Honour in Deniz (supra).  (my emphasis)

Conclusion

48.The case before me was argued on the basis that I should adopt the wider interpretation of the legislation taken by Frederico J in Deniz in the circumstances of this case where the fraud was not about the ulterior motives of the respondent, or any reservation on his part about the future of the marriage.  The argument was founded on Kay J’s formulation, in Al Soukmani of the “external indicia evident at the time the ceremony is entered into” test.

49.It was Mr Wood’s submission to me that his client’s position was different from those cases that have rejected the Deniz approach, and was not based on reservations held subjectively by one of the parties about the future of the marriage.  Here, it was argued, the fraudulently misrepresented facts – age – marital history – existence of children – were not subjective, but were objectively ascertainable at the time of marriage.  In one sense they are therefore external indicia – they have been shown to exist at the date of marriage from sources other than the parties.  I have accepted the applicant’s evidence as to her being induced to marry by these misrepresentations.  Is this sufficient to grant the relief sought?

50.I do not consider that it is.  From earliest times the authorities have rejected misrepresentations that induce the giving of consent including age, social status and wealth.  These are all objectively ascertainable facts.

51.Here it is not alleged that the applicant did not intend to marry the person who was present with her before the celebrant and the witnesses in March 2004.  The nub of her application is that she was fraudulently led to believe that the person she was marrying was five years younger than he was in fact, that he had not been married previously when he had been so married, and she was not told of the existence of the two children of that earlier marriage.  Whilst I accept that she was induced by these representations to consent to the marriage that took place, I consider that they all fall squarely within the categories of misrepresentation that have been rejected by earlier authority.  The fact that they could all have been ascertained on the day of the marriage, and that the applicant, if she had been aware of them at the time, would not have proceeded with the marriage, does not take the case any further.  She was consenting to marry the person who was physically present on that day.

52.Where as here, a test that is required by law has not been passed and relief is therefore denied, it is inevitable that the question will be asked, “What would have been enough to satisfy the test?”  Having regard to the cases that have gone before, it emerges that the cornerstone of this area of law that was put in place by the Privy Council in Swift v Kelly in the passage set out in paragraph 28 of this judgment has not been moved by subsequent legislative intervention, and fraud as to the person who is present at the ceremony is required.

53.This evokes images of an impersonator, or perhaps an identical twin of the intended spouse, taking the place of an intended spouse at the ceremony, and the other party not realising until after the ceremony that he/she has married the wrong person.  Was the law intended to be limited in its application to such a confined and, I have to say, improbable set of circumstances?  If not, it appears to me that it will require legislative intervention to broaden the ambit of cases in which relief on this ground may be granted.  This should not be interpreted as a call for such reform, but rather as recognition of the fact that as the statute has been interpreted for some time now, and assuming that the statute embodied the common law as it stood at the time of enactment, there is very little scope for the grant of relief in the form of a decree of nullity based on fraud.

53.At a much earlier stage of this judgment, I made it clear that I do not consider that the ground of mistake as to the identity of the other party was made out: see paragraphs 7 to 20 of this judgment.

54.I will therefore order:

1.        The applicant’s application filed 2 August 2006 is dismissed.

I certify that the preceding 54 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate:

Date:  15 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Aird & Hamilton-Reid