Anand & Chandran

[2024] FedCFamC1F 442

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Anand & Chandran [2024] FedCFamC1F 442

File number(s):

PAC 1638 of 2024

Judgment of:

RIETHMULLER J

Date of judgment:

28 June 2024

Catchwords:

FAMILY LAW – NULLITY – Where decree of nullity is sought – Respondent husband remarried prior to his divorce taking effect – Marriage is void – Decree of nullity made.

Legislation:

Family Law Act 1975 (Cth) s 55

Marriage Act 1961 (Cth) ss 5(1), 23B(1)

Division:

Division 1 First Instance

Number of paragraphs:

12

Date of last submission/s:

23 May 2024

Date of hearing:

Determined on the papers

Solicitor for the Applicant:

Kirby Law

Solicitor for the Respondent:

Greenleaf Legal

ORDERS

PAC 1638 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ANAND Applicant
AND:	MR CHANDRAN Respondent

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	28 JUNE 2024

THE COURT ORDERS THAT:

1.The purported marriage between the parties entered into in late 2023 is a nullity.

2.There be no order as to costs.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anand & Chandran has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RIETHMULLER J:

1. This is an application for a declaration that the marriage between the applicant and respondent which took place in late 2023 is invalid and therefore a nullity under Australian law.

2. In April 2023, the parties were introduced through their parents and in late 2023, they married in a religious ceremony.

3. A week after the marriage the applicant informed the respondent that she considered them to be separated and on 10 October 2023, she moved out of the home. The applicant claims that the parties have lived separately and apart since that time. The respondent says that separation occurred on 2 December 2023 through a discussion on WhatsApp where he communicated his wishes to separate, and that it was not until 12 December 2023 that they have been separated and living apart since.

4. The applicant filed her Application for Final Orders on 28 March 2024, and on 17 May 2024 the application was administratively transferred by a registrar to the Federal Circuit and Family Court of Australia (Division 1). The respondent filed his Response to Final Orders on 23 May 2024, where he did not oppose the decree of nullity.

5. The marriage certificate issued by the NSW Registry of Births, Deaths and Marriages does not include their middle names. Both parties said that they had communicated to the religious official beforehand that the certificate of marriage did not include their full names, which is evident in their WhatsApp messages in annexure “BB” of the applicant’s affidavit filed 28 March 2024. However, there is no doubt as to the identity of the parties.

6. In mid-2023 the respondent was granted a divorce from his previous wife. The applicant later became aware of the divorce.

7. The Application for Divorce was heard in mid-2023 and the orders were to take effect in late 2023: see s 55 of the Family Law Act 1975 (Cth). The parties were married in late 2023, three days prior to the divorce orders taking effect.

8. The respondent says that he was unaware the divorce would not formally take effect until late 2023 and only became aware of this in early 2024 prior to the preparation of a meeting set up with his solicitor for the purposes of discussing his separation from the applicant.

9. Both parties seek an order that the marriage be annulled on the basis that the respondent was still married to his previous wife when the applicant and respondent married in late 2023.

10. In Australia, marriage is defined in s 5(1) of the Marriage Act 1961 (Cth) as the “union of 2 people to the exclusion of all others, voluntarily entered into for life”. A marriage to a second person whilst still being lawfully married to another person is not a valid marriage under Australian law: see s 23B(1)(a) of the Marriage Act.

11. As the respondent was still married to his previous wife when he purported to marry the applicant, I find that the marriage of the applicant and the respondent solemnised in late 2023 is void: see s 23B(1)(a) of the Marriage Act. As a result I will issue a decree of nullity.

12. On 11 June 2024, at a directions hearing before a registrar of this court, the parties advised that they would not be making an application for costs and I therefore make no order as to costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.

Associate:
Dated: 28 June 2024