ANOUIHL & TEMKE

[2017] FamCA 325

FAMILY COURT OF AUSTRALIA

ANOUIHL & TEMKE [2017] FamCA 325

FAMILY LAW – DECLARATION – Validity of marriage – Where parties subsequent to civil marriage participated in second “religious marriage ceremony” – Where later marriage inadvertently registered – Where declaration that later marriage be declared invalid justified – Declaration made.

Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) ss 4, 113
Marriage Act 1961 (Cth) s 113

APPLICANT: Mr Anouihl

RESPONDENT: Ms Temke

FILE NUMBER: PAC 5496 of 2016

DATE DELIVERED: 18 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Khalil of Fay Rose Legal

SOLICITOR FOR THE RESPONDENT: Ms Doumit of Somerville Legal

Orders Made on 26 April 2017 and amended under the slip rule on 2 May 2017

1. It is declared that the purported marriage between Mr Anouihl and Ms Temke solemnised on … 2009 at the B Church in C Town NSW and subsequently registered under the Births, Deaths and Marriages Registration Act 1995 (NSW) Registration Number … is invalid.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anouihl & Temke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5496  of 2016

Mr Anouihl

Applicant

And

Ms Temke

Respondent

REASONS FOR JUDGMENT

1. The desire of the applicant husband and the respondent wife, who were already married, to renew their vows in a religious ceremony has led to unforeseen consequences.

2. The husband and wife were married in a civil ceremony conducted at the Registry of Births, Deaths and Marriages, Suburb D NSW in 2008.

3. The husband was then aged 24 and the wife aged 19. Neither had been previously married. The marriage was subsequently duly registered.

4. On 6 December 2009 the husband and wife participated in a religious marriage ceremony pursuant to the appropriate rites. A celebration of that religious ceremony thereafter followed in the company of friends and family.

5. At the time of this subsequent ceremony the husband was aged 26 and the wife aged 20.

6. The reality that the second “marriage” had been registered under the provisions of the Births, Deaths and Marriages Registration Act 1995 (NSW) was not known to the parties until after their separation on 8 November 2015 when an application for divorce was filed by the husband following the requisite period of separation.

7. On 27 February 2017 the husband filed an application seeking a declaration that the marriage conducted in 2009 was not a valid marriage. On 20 April 2017 the wife filed a response to the husband’s application supporting the orders sought by him.

8. Section 113 of the Marriage Act 1961 (Cth) (‘the Marriage Act’) makes statutory provisions as to second marriage ceremonies.

9. Section 113(5) relevantly provides:

   (5)Nothing in this Act shall be taken to prevent 2 persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia where those persons have:

   a)produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and

   b)furnished to that person a statement in writing, signed by them and witnessed by that person, that:

   (i)they have previously gone through a form or ceremony of marriage with each other;

   (ii)they are the parties mentioned in the certificate of marriage produced with the statement; and

   (iii)they have no reason to believe that they are not legally married to each other or, if their marriage took place outside Australia, they have no reason to believe that it would not be recognised as valid in Australia.

10. Regrettably at the time of the later marriage ceremony the then already husband and wife failed to comply with the formal provisions as to notification provided in the section. The wife asserts that leading up to and in preparation for the religious ceremony she and her husband had informed the celebrant that there was an earlier registered marriage in 2008. She asserts that when they completed documentation to facilitate the religious ceremony that she and the husband were not aware that the celebrant would forward documentation for registration of the marriage, that appears to have been inadvertently completed, to the New South Wales Registry of Births, Deaths and Marriages under the provisions of the Births, Deaths and Marriages Registration Act 1995 (NSW).

11. In the event that the celebrant had been properly notified in accordance with the provisions of section 113(5) then that celebrant was not to:

    a)prepare or issue in respect of it any certificate of marriage under or referring to this Act; or

    b)issue any other document to the parties in respect of the ceremony unless the parties are described in the document as being already legally married to each other.

12. It is clear that in circumstances where the parties were already married the subsequent ceremony had no legal effect on their status as a married couple and that the subsequent registration of the ceremony as a registrable marriage was in error and in breach of the provisions of the Marriage Act 1961.

13. Section 113 of the Family Law Act 1975 (Cth) provides:

Proceedings for declarations

In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.

1. The relevant definition of “matrimonial cause” is:

   b)        proceedings for a declaration as to the validity of:

   (i)      a marriage; or …                 

2. The terms of section 113 permit the Court to provide such declaration in circumstances when it “is justified” in the matter. It is well settled that provided there is a satisfactory reason for making a declaration and it is warranted a court may proceed to do so.

3. In this matter the applicant and respondent have demonstrated that there is a satisfactory reason for making the requested declaration and that the declaration is warranted so as to appropriately resolve the validity or otherwise of the religious “renewal of the vows” that unexpectedly resulted in the formal registration of a second marriage.

4. For these reasons a declaration that will be made accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 May 2017.

Associate:

Date:  12 May 2017