BITAR & BITAR
[2018] FamCA 567
•30 July 2018
FAMILY COURT OF AUSTRALIA
| BITAR & BITAR | [2018] FamCA 567 |
| FAMILY LAW – NULLITY – Application for declaration – foreign marriage – Where consideration of whether the marriage recognised as valid under Australian Law – Where applicant still married at time of subject marriage – Marriage declared a nullity. |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) ss 23B, 88C, 88D, 88F, 88G |
| In the marriage of Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578 Zau & Ruk [2014] FamCA 709 |
| APPLICANT: | Ms Bitar |
| RESPONDENT: | Mr Bitar |
| FILE NUMBER: | PAC | 1209 | of | 2018 |
| DATE DELIVERED: | 30 July 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 22 May 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Chaudhry of MIC Lawyers |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
Orders
That it be declared that the marriage between the applicant Ms Bitar and the respondent Mr Bitar conducted in New Zealand in 2010 is a nullity.
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 Bitar & Bitar 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 1209 of 2018
| Ms Bitar |
Applicant
And
| Mr Bitar |
Respondent
REASONS FOR JUDGMENT
The applicant seeks a declaration that the marriage ceremony entered into between her and the respondent in New Zealand in 2010 is void and for a decree of nullity to be granted.
On 1 May 2018 the Registrar was satisfied that the respondent had been served with the Initiating Application seeking a declaration of nullity by reason of the Affidavit of Service filed on 23 April 2018 and the Acknowledgement of Service signed by the respondent and filed on 23 April 2018.
The application of the wife was listed before the Court on 22 May 2018. There was no appearance by or on behalf of the respondent husband.
He having had notice of the application it is appropriate that the application proceed to determination in the respondent husband’s absence.
background
The applicant married her first husband in 2007 in B Town, India in a religious ceremony.
In early 2008 the applicant moved to New Zealand following the breakdown of her marriage to her first husband.
The applicant’s first husband initiating divorce proceedings in the District Court of B Town in 2010. On 5 May 2010 the applicant received communication from the District Court in India indicating that the divorce had been dismissed for non-attendance. The applicant however deposes to believing that she was divorced from her first husband from this time.
The applicant met the respondent in New Zealand and they were married in 2010. They have one child together who is presently aged five.
The applicant subsequently became aware that her first husband had filed a second application for divorce in India following the dismissal of the first application and the divorce application was granted on 19 October 2011. The applicant annexes to her affidavit filed 20 March 2018 the Order and Judgment of the District Court of B Town, India granting the divorce.
The applicant seeks that her marriage to the present respondent be declared null and void.
applicable law
Pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”), a decree of nullity may be granted on the ground that the marriage is void.
Section 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.
However the Part of the Marriage Act in which s 23B is contained only applies to marriages solemnised in Australia or those under Part V of the Marriage Act (namely, marriages of members of the defence force overseas). It does not apply to the circumstances of this case as the marriages in question were solemnised in India and New Zealand respectively (In the marriage of Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578; Zau & Ruk [2014] FamCA 709 per Macmillan J).
Relevantly, Part VA of the Marriage Act sets out the circumstances in which foreign marriages may be recognised as valid under Australian law.
Relevantly, s 88C of the Marriage Act provides:
Application of Part
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or
(b)…
…
Relevantly, s 88D of the Marriage Act provides:
Validity of marriages
(1)Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.
(2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
(a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid;
…
In Teves III and Campomayor (supra) Lindenmayer J found, in similar circumstances, that a declaration of nullity, could be made. His Honour said at 81,734:
At first I had some difficulty in accepting that submission because nowhere in Part VA of the Marriage Act is it provided that a marriage entered into in a foreign country is "void", for the purposes of Australian law, in circumstances defined in s.88D(2), but only that in those circumstances it "shall not be recognized [in Australia] as valid" (emphasis added). This may be contrasted with ss.23 and 23B, which provide that a marriage to which either of those sections directly applies "is void" in those circumstances. However, on reflection, I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognize, as valid, a marriage solemnized in a foreign country, that court could refuse to declare the marriage invalid (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court's jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression "void" as the basis for a nullity application rather than , say "invalid" or "not valid". In short, I conclude that if, in accordance with s.88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is "void" within the meaning of that term as used in s.51 of the Family Law Act.
Some support for that conclusion may be obtained from s.88F of the Marriage Act which provides:
"Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question".
The applicant relevantly annexes to her affidavit filed in support of her application a copy of the marriage certificate for her marriage to the present respondent in New Zealand.
Relevantly, in regards to the applicant’s first marriage in India she annexes to her affidavit a copy of the Order and Judgment from the District Court of B Town, India granting her first husband a divorce. The District Judge finds in that Judgment that the marriage of the applicant and her first husband was solemnised at B Town in 2007.
Accordingly, the court is satisfied that at the time the applicant participated in the marriage ceremony with the respondent on 19 July 2010 in New Zealand she was lawfully married to another person.
A declaration will be made that the marriage between the applicant and the respondent in New Zealand in 2010 is a nullity.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 July 2018.
Legal Associate:
Date: 30 July 2018