BETTS & HAMPSON

[2017] FamCA 107

FAMILY COURT OF AUSTRALIA

BETTS & HAMPSON [2017] FamCA 107

FAMILY LAW – ANNULMENT OF MARRIAGE – marriage void as applicant already married – applicant had obtained divorce “on line” through internet website said to be exercising jurisdiction out of Mexico – application for such “divorces” fraught with difficulty as not recognized by Australian law notwithstanding the promotor’s boast of “comity”.

FAMILY LAW – NULLITY order made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Betts

RESPONDENT: Ms Hampson

FILE NUMBER: MLC 171 of 2017

DATE DELIVERED: 22 February 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 February 2017

REPRESENTATION

THE APPLICANT:	In person
THE RESPONDENT:	In person

Orders

1. The court declares that the marriage solemnized at Suburb B on … 2013 is void.

2. That the application filed 10 January 2017 is otherwise dismissed.

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 Betts & Hampson 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 MELBOURNE

FILE NUMBER: MLC 171 of 2017

Mr Betts

Applicant

And

Ms Hampson

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Betts for a decree of nullity of marriage under section 51 of the Family Law Act 1975.  The respondent to the application is his wife, who not only acknowledges that she is the person named in the application, but has confirmed all of the details that support the application.  Because of the unusual nature of the application, it is unfortunate that I need to set out some detail.

2. The power of the Court to grant an annulment of an otherwise legitimate marriage lies in s 51 of the Act on the basis that the marriage was void. Section 23B of the Marriage Act 1961 provides that a marriage such as this is void where either of the parties is, at the time of that marriage, lawfully married to some other person.  There is a string of other considerations, none of which is relevant here.

3. Mr Betts was married to Ms C in 2009.  That marriage broke down in 2011 and the parties separated permanently.  After the breakdown of that marriage, Mr Betts commenced a relationship with the respondent to this application.  They decided that they wanted to marry.  For reasons that are irrelevant, Mr Betts wanted to get a divorce quickly and, through a number of processes, came across a website on the internet called Divorce Fast.  The website, as set out in his application, makes some grandiose offers.  Indeed, there are testimonials attached to the website indicating that it is a simple process by which people do not have to travel to the jurisdiction in which the divorce is granted and that the decrees are recognised around the world.

4. The website boasts that the divorce would be valid and recognised “everywhere in the world”. The basis for that boast is that there is a policy of comity amongst countries which recognise the juridical rulings of other countries. There is a problem with that boast. Although the website testimonial suggests that Australian clients have participated in this exercise on a number of occasions, the website fails to mention section 104 of the Family Law Act 1975. Section 104 of the Act provides that a divorce or the annulment of a marriage effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where, relevantly here, the respondent was ordinarily resident in the overseas jurisdiction at the relevant date, or the applicant was ordinarily resident in the overseas jurisdiction at the relevant date, and a number of other considerations which are not relevant.

5. The jurisdiction that granted this divorce was Mexico. It is very clear from the evidence that neither Mr Betts nor his then-wife Ms C had ever been resident or domiciled in Mexico. As such, section 104 of the Australia legislation provides that the divorce granted by the Mexican Court cannot be recognised as valid in Australia. In the event that there might be some dispute about even that issue, s 104(4) provides that a divorce shall not be recognised if the common law rules of private international law would ensure the refusal of the recognition of the validity on the ground that a party to the marriage had been denied natural justice or that recognition would be manifestly contrary to public policy.

6. To the extent it is relevant at all, the evidence is that Mr Betts’s first wife certainly knew that he was toying with the idea of a divorce, but there was no suggestion that she was served with any documents prior to the application being filed or, indeed, notified that it was to be heard by a Mexican Court.  On any view, such a denial of natural justice offends the law of Australia and probably most common law countries of the world.

7. Returning back to the website, it boasts that a divorce can be obtained as quickly as on one day’s notice or one to two days’ business notice depending upon what particular course of action is taken.  That is a curious boast, bearing in mind that there is no indication in the website that the spouse even needs to be notified.  The website makes reference to the fact that if the spouse does not sign or consent to the divorce, that does not matter, because it is not needed for a divorce in Mexico.

8. The website then boasts that once the divorce online is granted, for which a fee of about US$1500 is required to be paid, the person who is the recipient of the decree is free to remarry.  Mr Betts followed that pathway, and I have no doubt, based on not only what he has told me in evidence, but also the confirmation by the woman he then married, he is a truthful person.  He thought was a legitimate course of action. 

9. The disconcerting fact is that the person who married the parties had a translation of the divorce order from the Mexican Court. That translation was provided as part of the package deal by the website owner. Just how the marriage celebrant could ignore the law of Australia is perplexing. Presumably as part of their training, they would understand the requirements of the Marriage Act and if not, perhaps that issue needs political review.

10. Mr Betts says that the subject was raised, but probably more out of the celebrant’s curiosity in the Mexican system rather than the Australian.  The marriage celebrant noted that Mr Betts was “divorced”.

11. Be that as it may, subsequent to the marriage between Mr Betts and respondent, his former wife sent him a text message indicating that she doubted the validity of the Mexican divorce.  She does not say why she believed that, but, on whatever basis, quite frankly, she was correct.  The process has no doubt caused embarrassment and angst for a young couple who not only thought they were legitimately married and now have children, but also now created an amount of unsatisfactory expenditure that was not probably necessary in the first place.

12. Having satisfied myself about the service of the application, the legitimacy of the evidence that supports the application, and being satisfied that Mr Betts was not entitled to marry the respondent because he was still married, and that the decree of divorce issued by the Court in Mexico in 2013 is not a valid divorce for the purposes of Australia law, I am satisfied that the application for the annulment of the marriage that took place in 2013 should be granted.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 February 2017.

Associate: 

Date:  1 March 2017