Basurto and Basurto

[2016] FamCA 5

FAMILY COURT OF AUSTRALIA

BASURTO & BASURTO [2016] FamCA 5

FAMILY LAW – NULLITY – Where the applicant wife seeks a decree of nullity – Where the respondent husband admits he was lawfully married to another person at the time of the subject marriage – Application granted.

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

APPLICANT: Ms Basurto

RESPONDENT: Mr Basurto

FILE NUMBER: MLC 5374 of 2014

DATE DELIVERED: 12 January 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 12 January 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. Having regard to the contents of the file and to that admission of the respondent this day, I pronounce a decree of nullity of the marriage celebrated between Mr Basurto and Ms Basurto on … December 2008 on the basis that such marriage is void due to the respondent Mr Basurto being lawfully married to another person at the time of the celebration of such ceremony of marriage.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5374  of 2014

Ms Basurto

Applicant

And

Mr Basurto

Respondent

REASONS FOR JUDGMENT

1. By an Initiating Application filed on 20 June 2014,

   
   

   Ms Basurto sought an order “that my marriage to [Mr Basurto] on December …, 2008 be annul”.  I interpreted this request as an application for a decree of nullity of the marriage.  In her affidavits sworn on 2 June 2014,

   
   

   8 October 2014 and 8 July 2015 Ms Basurto deposed to her belief that

   
   

   Mr Basurto was lawfully married to another person at the time of the marriage ceremony in December 2008. 

2. On 4 November 2015 Mr Basurto made his first appearance in the proceedings and, with the assistance of the duty solicitor, sought an adjournment for the purpose of seeking legal advice.  The proceedings were adjourned to

   
   

   12 January 2016. 

3. On 4 December 2015 Mr Basurto filed a Response to Initiating Application, by which he indicated that he consented to the relief sought by Ms Basurto. 

   
   

   He also filed an affidavit sworn on 2 December 2015 in which he deposed:

   1.I married the applicant [in] December 2008.  I was previously married in the Philippines.  I left the Philippines in 1989 and I, mistakenly, believed that my then wife had divorced me.  I now know this did not happen.  I respectfully ask that the court annul this marriage.

4. The proceedings came before me on 12 January 2016, when both parties appeared without legal representation.  With their consent, I read all of the material on the court file.

5. Upon the resumption of the hearing I asked Mr Basurto a question in words to the effect:

   Do you admit that, at the time of the ceremony of marriage with

   
   

   Ms [Basurto] on … December 2008 you were lawfully married to another person?

6. Mr Basurto replied:

   Yes.

7. I then made the following order:

   Having regard to the contents of the file and to the admission of the respondent this day, I pronounce a decree of nullity of the marriage celebrated between [Mr Basurto] and [Ms Basurto] on
   … December 2008 on the basis that such marriage is void due to the respondent [Mr Basurto] being lawfully married to another person at the time of the celebration of such ceremony of marriage.

8. I indicated that I would provide written reasons for my decision and I now do so.

Background

1. The parties met on 12 February 2007 and commenced a relationship which culminated in the ceremony of marriage in December 2008.  Ms Basurto deposed in her affidavit of 2 June 2014 that she discovered on 7 May 2014 “innocently and by honest mistake” that Mr Basurto was “still legally married”.  Ms Basurto commenced these proceedings by way of an initiating application filed on 20 June 2014.

Consideration

1. Section 51 of the Family Law Act 1975 (Cth) provides as follows:

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

2. The grounds upon which a marriage is void are set out in s 23B of the

   
   Marriage Act 1961

   (Cth).  For present purposes, that Act relevantly provides as follows in s 23B(1)(a):

   (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 where:

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

   …

3. As noted above, Mr Basurto deposed in his affidavit of 2 December 2015 that he was lawfully married to another person at the time of the marriage ceremony with Ms Basurto in December 2008.  As also noted, he made that admission on the court record on 12 January 2016.

Conclusion

1. For the above reasons, I am satisfied and I find that the marriage celebrated between Ms Basurto and Mr Basurto in December 2008 is void on the ground that Mr Basurto was lawfully married to another person at the time of that marriage.  Accordingly, I pronounced a decree of nullity of the marriage.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 January 2016.

Associate: 

Date:  15 January 2016