Bartres & Bartres
[2024] FedCFamC2F 958
•24 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bartres & Bartres [2024] FedCFamC2F 958
File number: CSC 536 of 2023 Judgment of: JUDGE COPE Date of judgment: 24 July 2024 Catchwords: FAMILY LAW - NULLITY OF MARRIAGE – Application for a decree of nullity of marriage – Where the applicant contends that the respondent was lawfully married to another person at the time of marriage – Where the applicant contends that the divorce was not recognised in the respondent’s country of birth at the time of re-marriage – Overseas decree – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 51, 104
Marriage Act 1961 (Cth) s 23B
Division: Division 2 Family Law Number of paragraphs: 22 Date of last submissions: 18 July 2024 Date of hearing: 18 July 2024 Place: City D For the Applicant: The Applicant represented himself For the Respondent: The Respondent represented herself ORDERS
CSC 536 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BARTRES
Applicant
AND: MS BARTRES
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.The Initiating Application filed on 12 February 2024 is dismissed.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
The court is asked to determine an application for nullity of marriage filed by the applicant husband, Mr Bartres on 12 February 2024. The respondent wife is Ms Bartres.
The respondent was previously married to Mr C. A divorce was obtained in the Family Justice Courts of the Republic of Singapore in 2015 and a certified copy was tendered. The respondent also gave evidence in chief of an annulment application in 2018 however those documents were not provided.
The applicant and the respondent married in 2017 at the City D Courthouse and separated in December 2022. The parties do not have any children.
The respondent renounced her Permanent Residency in Singapore in late 2017 and in late 2018, she relocated to Australia.
ISSUE FOR DETERMINATION
Whether the divorce the respondent obtained in Singapore from her first husband is invalid.
If that answer is in the positive, then whether the marriage between the applicant and the respondent is a nullity.
ORDERS SOUGHT
The applicant seeks a decree of nullity of marriage and to prohibit the respondent from using the surname “Bartres”.
The respondent seeks that the application be dismissed.
THE EVIDENCE
Each party filed an Outline of Case, relied on their affidavit material as read and the documents tendered. Neither party sought to cross-examine the other. Each party made oral submissions.
A relevant summary of the respondent’s history based on the material and tendered documents is as follows:
Date Event 1982 Respondent born in the Country F 1995 Respondent moves to the Country F with her family – 13 years old 2000 Respondent becomes permanent resident of Singapore 2000 – 2004 Respondent to the Country F to study – marries first husband there in 2003 2004 Respondent returns to Singapore 2015 Respondent obtained divorce in Singapore – certified copy tendered 2017 Respondent and Applicant marry in Australia Late 2017 Respondent migrates to Australia – the applicant’s evidence is that she does so on a Country F passport Late 2023 Respondent obtains Australian citizenship
The applicant himself has no connection to the Country F. He was born in Country G and permanently migrated to Australia in 2005. The parties met when the respondent was working as a transport worker in Australia.
The respondent makes allegations of family violence perpetrated by the applicant. That is not relevant to the current application before the court. The applicant argues that the relationship was a sham on the part of the applicant. That also is not relevant to the current application before the court.
CONSIDERATION OF THE EVIDENCE AND THE LEGAL PRNCIPLES
Section 51 of the Family Law Act 1975 (Cth) (“Family Law Act”) provides that:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B(1)(a) of the Marriage Act 1961 (Cth) (“Marriage Act”) provides that a marriage is void where one of the parties is legally married to someone else at the time of the marriage.
The Marriage Act also provides that an overseas marriage is recognised in Australia if it was a valid marriage in the country where the ceremony was performed. In this case, neither party disputes that the applicant was legally married to her first husband in Country F. The issue is around the validity of the divorce.
The applicant argues that as the respondent and her first husband were both born in Country F and their marriage was solemnised in Country F, that Country F law applies. The applicant submits at the time the divorce was obtained in Singapore it was not recognised under Country F law. The applicant tendered documents in support of his argument which he advised the court were obtained from Country F government and embassy websites. In his submission, it follows that a divorce in Singapore is not a valid divorce as it is or was not recognised in the country where the marriage was solemnised at the time of the remarriage. He does not dispute that the divorce occurred but rather that it is void as the country of marriage did not recognise it and thus the respondent committed bigamy.
The difficulty faced by the applicant is s 104 of the Family Law Act.
Firstly s 104(3) provides that an overseas divorce is recognised in Australia if at the time the divorce was obtained one of the parties was ordinarily resident in, domiciled in, a national of or a national who was present in the country where the divorce was obtained. The applicant does not challenge that aspect of the respondent’s case. His argument is that because the divorce is not recognised in Country F, she is still legally married in Country F.
The fatal flaw in the applicant’s case is s 104(9). That section provides that:
Where a divorce or the annulment of a marriage is to be recognised as valid in accordance with this section, the capacity of a party to that marriage to remarry in accordance with the law of Australia is not affected by the fact that the validity of the divorce or annulment is not recognised under the law of some other jurisdiction.
What that means is that because the divorce in Singapore is recognised as valid in Australia pursuant to s 104(3), the fact that it may not have been valid in Country F at the time that the parties to these proceedings were married is irrelevant to the validity of the divorce in Australia. In summary the divorce was valid in Singapore, it is therefore valid in Australia, and the recognition or otherwise of that Divorce by Country F is of no account in Australia.
As regards his application to prevent the respondent using the name “Bartres”, that application was not pressed on the day. As the applicant was self-represented and for the sake of completeness, I note that this court has no power to control a party’s usage of a name legally obtained whether through marriage or some other means.
CONCLUSION
Section 104(3) & 104(9) of the Family Law Act make it very clear that it does not matter if the divorce is not recognised in Country F, it is valid in Australia, and the application for nullity must therefore fail.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 24 July 2024
0
0
2