BOWN & JALLOH

[2014] FamCA 785

FAMILY COURT OF AUSTRALIA

BOWN & JALLOH [2014] FamCA 785

FAMILY LAW – NULLITY – Application for declaration of nullity of marriage – Whether wife mistaken as to identity of husband pursuant to s23(b)(1)(d)(ii) of the Marriage Act 1961 (Cth) – Where the parties knew each other for some time prior to the marriage and had a sexual relationship – Where the wife asserted that the husband did not disclose that he had used another name and did not provide an accurate account of his past – Where it was found that the wife willingly entered into the marriage and that she was not mistaken as to the identity of the husband – No grounds for nullity of marriage established – Application dismissed.

Marriage Act 1961 (Cth) s23B(1)(d)(ii)

Aird & Hamilton-Reid [2007] FamCA 4
C v C [1942] NZLR 356
Osman & Mourrali (1990) FLC 92-111; 13 Fam LR 444
T & H [2001] FamCA 785
M & Y [2005] FamCA 149
Zacharia & Paradisio [2008] FamCA 688

APPLICANT: Ms Bown

RESPONDENT: Mr Jalloh

FILE NUMBER: SYC 3961 of 2014

DATE DELIVERED: 17 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: REES J

HEARING DATE: 10 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT: Uther Webster & Evans

THE RESPONDENT: No Appearance

Orders

IT IS ORDERED

1. That service upon the husband of the wife’s Application filed 27 June 2014 seeking a declaration of nullity is deemed to have been effected upon the husband by way of the email to Mr Chum dated 7 July 2014.

2. That the wife’s Application filed 27 June 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bown and Jalloh 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 SYDNEY

FILE NUMBER: SYC 3961 of 2014

Ms Bown

Applicant

And

Mr Jalloh

Respondent

REASONS FOR JUDGMENT

1. Ms Bown (“the wife”) and Mr Jalloh (“the husband”) were married in Country Z in 2013.

2. The wife is an Australian citizen ordinarily resident in Australia.

3. The husband lives in Country Z.

RELEVANT HISTORY

1. The parties met in Australia in June 2007 and shortly thereafter commenced an intimate relationship. From June 2007 until November 2007 they saw each other approximately once per week.

2. In November 2007 the husband travelled to Country Z and the wife made arrangements to join him, travelling to Country Z in December 2007. Shortly prior to Christmas 2007 the wife returned to Sydney.

3. During November 2007 until February 2008 the parties had discussions about where the husband would live and agreed that he would move into the wife’s home.

4. The husband returned to Sydney in February 2008 and moved into the wife’s home.

5. The parties continued to share a residence until August 2008 when the husband left the home, and the relationship ended.

6. In September 2010 the wife received an email from the husband asking whether she would like to come and visit him in Country Z. In November 2010 she visited the husband in Country Z for a ten day holiday, staying with him in a guest house. At the conclusion of the trip she returned to Australia. At that time the wife concluded that the relationship had no future.

7. There was very occasional contact between the husband and the wife until June 2013 when the wife received an email from the husband seeking to reinstate the relationship.

8. In September 2013 the wife travelled to Country Z and shortly after her arrival the husband asked her to marry him and she accepted.

9. On 30 September 2013 the parties lodged an application to be married in the Registry of Births, Deaths and Marriages in Country Z. They attended upon the Registrar together.

10. In October 2013 the husband and the wife were married. The marriage was conducted by the same person who had accepted the application on the previous day. The ceremony was in English and it is not disputed that the ceremony was a formal ceremony of marriage. At the conclusion of the ceremony the parties were handed a marriage certificate in English which they both signed. The certificate is entitled “Certificate of Marriage”.

SERVICE

1. The application has not been personally served upon the husband. The wife applies for an order that personal service be dispensed with on the basis that the application has been sufficiently brought to the attention of the husband.

2. Prior to the separation of the parties, the wife sought to have executed a loan agreement to evidence the payment by her to the husband of a total of $50,696 plus interest and the husband’s agreement to repay that amount.

3. The wife deposes that a solicitor, Mr Chum of Chum and M Attorneys, acted for the husband in relation to the loan agreement. On 28 May 2014 the wife’s solicitors wrote a letter to Chum and M Attorneys in Country Z. In the letter the solicitors said:

   Our client instructs us that she delivered a copy of the Loan Agreement to yourself and your client’s parents and all are aware of the loan. The copy provided to you was dated 16 April 2014 and was signed by our client.

   Our client has received an email from your client advising that he signed the Loan Agreement before you as a witness. We now ask that you provide us with a copy of the signed document. We ask that you provide us with a copy as a professional courtesy.

4. On 2 June 2014 the wife received an email from Mr Chum which read:

   Dear [Ms Bown],

   I have got an instruction from my client not to reply to any of your emails since 27 May 2014.
   Regards
   Mussa Chum
   Solicitor  

   [Country Z]

5. On the same day an email was sent by Mr Chum to the wife’s solicitor which read:

   Dear Madam,
   This is to confrm (sic) I have received your demand email to submit the signed copy of Loan Agreement between [the husband] and [the wife]. The day he signedt (sic) the paper he promised his wife was around he will give that copy in hand to [the wife], in that I do not have any copy in my hand right now. so you may ask [the husband] it to you.
   Yours truly
   Mussa Chum
   Solicitor
   [Country Z]

6. On 4 June 2014 the wife’s solicitors received a further email from Mr Chum which read:

   This is to cnfirm (sic) that I have received your email letter to ask me to bring you the paper tha (sic) has been igned (sic) by my client [Mr Jalloh].

   but unfortunately the day he signed the paper he took it and promised to scan it to [Ms Bown] by then I Ihave (sic) been left with no signed copy.

7. On 6 June 2014 a further letter was sent by the wife’s solicitors to Mr Chum asking him to forward a copy of the loan document.

8. On 7 July 2014 the wife’s solicitors forwarded by email to Mr Chum a document attaching the Initiating Application in these proceedings, the supporting affidavit and a form of Acknowledgment of Service.

9. On 8 July 2014 Mr Chum sent an email to the wife’s solicitors saying “I confirm to receive your email with 5 attachment (sic)”.

10. On 7, 10, 22 and 24 July 2014 and on 1 August 2014 further emails were sent to Mr Chum by the wife’s solicitors asking that he return the signed Acknowledgement of Service. Mr Chum has not replied to those requests.

11. I am satisfied that the solicitors for the wife have done everything in their power to bring this application to the attention of the husband and I therefore will order that service is deemed to have been effected upon the husband by way of the email to Mr Chum dated 7 July 2014.

THE SUBSTANTIVE APPLICATION

1. The wife applies for a declaration that the marriage is not a valid marriage. She relies only on the provisions of section 23B(1)(d)(ii) of the Marriage Act 1961 (Cth) (“Marriage Act”).

2. The relevant provision is set out below:

MARRIAGE ACT 1961 - SECT 23B

Grounds on which marriages are void

(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;

(b) the parties are within a prohibited relationship;

(c) by reason of section 48 the marriage is not a valid marriage;

(d) the consent of either of the parties is not a real consent because:

(i) it was obtained by duress or fraud;

(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e) either of the parties is not of marriageable age;

and not otherwise.

1. The wife gives evidence that in April 2014, after they were married, she discovered some documents belonging to the husband.

2. The wife found a driver’s licence, issued in Country Z in the name of the husband born 20 July 1974, and a second driver’s licence, also issued in Country Z in the name of … Jalloh born 22 April 1974. Each licence displayed a photograph of the same man and it is not disputed that the photograph on each document was of the husband.

3. The wife also found an Application for an Australian Partner Visa in the name of … Jalloph dated 17 June 2009; a birth certificate for a child naming … Jalloh as the father; a birth certificate and a passport in the name of … Jalloh; a birth certificate and a passport in the name of the husband.

4. The wife applies for a declaration that the marriage celebrated in Country Z is void because she was mistaken as to the identity of the husband pursuant to 23B(1)(d)(ii) of the Marriage Act.

5. It is not disputed that the wife intended to marry the man she knew as Mr Jalloh and that Mr Jalloh is the same man as … Jalloh, they both being the same persons in the photographs on the two driver’s licences.

6. The wife does not assert that she was induced into the marriage by the asserted non-disclosure of the husband that he used another name or that she was deceived as to the husband’s identity at the time. She asserts that she was not aware that he also used another name.

7. The parties had known one another for some time and had a sexual relationship for some time.

8. It is not alleged that the wife did not intend willingly to marry the man who was present with her at the marriage ceremony in October 2013.

9. The learned authors of “Australian Divorce Law and Practice” (Toose, Watson & Benjafield 1968 Edition at paragraph 107) dealing with a similar provision in Section 18(1)(d)(ii) of the Matrimonial Causes Act 1959-1966 say:

   It is the fact that the consent is not a real consent because of the mistake of a party as to the identity of the other party which renders the marriage void - s18(1)(d)(ii).. Mistake as to the condition, fortune or character of the other party will not avoid a marriage.

10. In Dickey’s Family Law with Legislation at [10.590] Dickey comments:

    By s 23B(1)(d)(ii) of the Marriage Act 1961, a marriage is void if the consent of either of the parties is not a real consent because one party is mistaken as to the identity of the other party. There is little judicial guidance on the scope of this provision. However, it does appear that a distinction must be drawn between a mistake as to the human identity of a person, and a mistake as to the name, status or other attribute of a party. The better view, based on the ordinary law of contract, seems to be that only the former type of mistake justifies a decree of nullity.

11. In Osman and Mourrali (1990) FLC 92-111; 13 Fam LR 444, this view was endorsed and at FLC 77,743; FamLR 448, Nygh, J. said this:

    … the marriage is void because the purported consent was given to something other than a marriage, or to a marriage with someone other than the person physically standing at the altar.

12. In Zacharia and Paradisio , Burr J. said:

    43.      The mistake has to be about “who the other party really is” - it is not enough for a party to be mistaken about matters such as the other person’s financial position or character. “The mistake in question must go to the identity of the party, not merely their name.”

13. Burr J then summarised the authorities in relation to this issue by reference to the following decisions and, with respect, I adopt his Honour’s analysis:

14. In C v C [1942] NZLR 356, the husband told the wife he was a famous Australian featherweight boxer and quite well off. The husband was in fact a New Zealander and neither a boxer nor rich. The wife tried to have the marriage annulled, but failed. Callan J held that it was a “case of real consent induced by fraud, and not a case of no consent or absence of consent.” The woman had consented to marrying the man she in fact married.

15. In T and H [2001] FamCA 785 one ground the husband relied on was mistake as to the identity of the wife, in that she lied about her date of birth, her education, her background, and that she was in effect “a different person”. Chisholm J stated that “The authorities make it quite clear that mistake as to identity should be construed in a fairly narrow way.” His Honour concluded that even if all the things the husband alleged about the wife were true, this would not constitute a mistake of identity within the meaning of s 23B(1)(d)(ii) of the Marriage Act.

16. In M and Y [2005] FamCA 149, the wife sought a decree of nullity on the ground of mistake as to identity of the husband. Halligan JR stated at [28]:

    Identity for these purposes does not refer to one’s incidental attributes such as condition, fortune, or quality, but rather to the person of the other party. For example, if a person intended to marry A but in fact went through a ceremony of marriage with B believing them to be A, consent would be vitiated. The authorities and current text books in fact suggest nullity on this ground is very rare....

17. The substance of the wife’s complaint was that the husband had not given his correct name, that he goes by various names and did not give her a correct account of his past. Halligan JR held the wife clearly intended to marry the husband there was real consent and this consent was not vitiated because she now was unsure of the husband’s real name and his antecedents.

18. In Aird and Hamilton-Reid [2007] FamCA 4, the wife sought a decree of nullity on the grounds of fraud and mistake as to identity. The wife was not aware of the husband’s real surname, or that he had been previously married and had two children.

19. Watt J could not conclude on the evidence before his Honour that at the time of the marriage the husband’s name was any different to that on the marriage certificate. The wife had not asserted that she was induced into the marriage because of the husband’s surname, or that any mistake relating to that surname caused her to consent to a marriage in circumstances which she would not otherwise have done so.

20. His Honour concluded the wife could not rely on mistake to establish a decree of nullity. With respect to fraud, his Honour accepted the wife was induced to marry by the misrepresentations made by the husband. However his Honour stated that “From earliest times the authorities have rejected misrepresentations that induce the giving of consent including age, social status and wealth. These are all objectively ascertainable facts.” (at [50]). The wife consented to marry the person who was physically present on the wedding day.

21. In these proceedings, the person whom the wife married was the person whom she intended to marry. She was not mistaken as to his identity.

22. Accordingly, the application will be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 September 2014.

Associate: 

Date:  17 September 2014