Berda and Kalil

[2012] FamCA 712

FAMILY COURT OF AUSTRALIA

BERDA & KALIL [2012] FamCA 712

FAMILY LAW – DECLARATION – Application for Nullity of Marriage dismissed

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Ms Berda

RESPONDENT: Mr Kalil

FILE NUMBER: BRC 876 of 2012

DATE DELIVERED: 6 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 6 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Stuart Cook & Braham

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The application filed on 2 February 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berda & Kalil 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 BRISBANE

FILE NUMBER: BRC 876 of 2012

Ms Berda

Applicant

And

Mr Kalil

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an application filed 2 February 2012, the applicant seeks an order that the marriage between her and the respondent be annulled. 

2. Section 51 of the Family Law Act 1975 (Cth) (“the Act”) makes it plain that an application for annulment must be based on the ground that the marriage is void. In order to ascertain whether the marriage is void is necessary to look to the provisions of the Marriage Act 1961 (“the Marriage Act”).

3. Section 48(1) of the Marriage Act provides:

   Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage. 

4. The invalidity of a marriage by reason of non-compliance with the section is one of the bases upon which a marriage can be declared void. 

5. In this case, the affidavit accompanying the application provides the basis for it.  In particular, at paragraph 14 of that affidavit it is deposed as follows:

   I have now seen the certified copy of a document which is addressed to the above mentioned celebrant and is expressed to be a “notice of intended marriage.” A copy of which is here until annexed and marked with the letter “C”.  My name, occupation and address as shown on this document were completed by me and are correct.  The name, occupation and address of the bride/groom were written by the respondent.  The balance of the document was completed by neither of us and to the best of my recollection, it was completed by the marriage celebrant.  I confirm that it is my signature on the document, however, what is stated to be the date of my signature, 28/03/11 is not correct.  It was signed on […] May 2011.  I was in […] Western Australia on 28 March 2011 and I remained there until I left to fly to […] Queensland on 29 April 2011.  I had never been to or heard of the Mosque in [Suburb H] at that time and on 28 March 2011 there were no plans for a marriage between me and the respondent.

6. The effect of the evidence on behalf of the applicant is that the Notice of Intended Marriage is false in the sense that it purports to indicate that notice was given when, in fact, it was not.  The Notice also purports to indicate that it was signed so as to provide notice some three months prior to the marriage when in fact it was signed on the date of the marriage, namely in May 2011. 

7. Reference to the affidavit and the submissions of the solicitor on behalf of the applicant make it clear that the false notice of intended marriage is the sole basis upon which the declaration of nullity is sought. 

8. Whilst section 48(1) of the Marriage Act provides that a marriage solemnised otherwise in accordance with the preceding provisions of the relevant Division of the Marriage Act is not a valid marriage, that subsection is made subject to subsection 2.

9. Subsection 2 of section 48 provides specifically:

   (2)      A marriage is not invalid by reason of all or any of the following:

   (a)failure to give the notice required by section 42, or a false statement, defect in or error in such a notice…

10. It can be seen that, not only is failure to give the required Notice a specific exemption to the other requirements of the section giving rise to an invalid marriage, but so, too, is a false statement within that document specifically provided for. 

11. It seems to me that the facts of this case fall squarely within section 48 (2)(a) and, as a result, the application for a declaration of nullity is fatally flawed.

12. No submissions advanced by the solicitor for the applicant are to the effect that any such reasoning is wrong. 

13. Accordingly (and with considerable reluctance in the circumstances of this particular case), I am bound to dismiss the initiating application filed 2 February 2012. 

14. To the extent that the effect of the order sought by the applicant is to bring the marriage to an end, it seems to me the proper application is an Application for Dissolution

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 August 2012.

Associate: 

Date:  22 August 2012