Aird & Hamilton-Reid

Ms Aird applied to the Family Court of Australia for a decree of nullity in respect of her marriage to Mr Hamilton-Reid. The applicant alleged that the marriage was void on the grounds of fraud and mistaken identity, as she claimed the respondent had misrepresented his marital history, date of birth, and the existence of children from a previous marriage, and that she would not have married him had she known the true facts. The respondent did not appear at the hearing, but the applicant proved service of the application.

The court was required to determine whether the applicant's consent to the marriage was not a real consent due to fraud or mistake, as defined by section 23B(1)(d) of the *Marriage Act 1961* (Cth). Specifically, the court had to consider whether misrepresentations regarding the respondent's age, previous marital status, and the existence of children from a prior marriage constituted fraud sufficient to render the marriage void, or whether the applicant was mistaken as to the identity of the respondent.

Justice Watt applied the "traditional approach" to nullity based on fraud, which requires deception as to the identity of the party or the nature of the ceremony. The court found that while the applicant had been induced to marry by misrepresentations concerning the respondent's age, marital history, and children, these misrepresentations did not go to the identity of the respondent or the nature of the ceremony. The court noted that the applicant intended to marry the person physically present before the celebrant and witnesses. The court rejected the "wider interpretation" of fraud, which would allow for nullity based on misrepresentations that induce consent but do not relate to identity or the ceremony itself, as adopted in *Deniz v Deniz* (1977) FLC 90-252, and instead followed the reasoning in cases such as *Otway v Otway* (1987) FLC 91-807 and *Al Soukmani v El Soukmani* (1990) FLC 92-107, which affirmed the traditional approach. The court also found that the applicant had not established mistake as to the identity of the respondent.

Consequently, the applicant's application for a decree of nullity was dismissed.