Brokenshire & Rogers

[2008] FamCA 680

FAMILY COURT OF AUSTRALIA

BROKENSHIRE & ROGERS [2008] FamCA 680

FAMILY LAW – NULLITY – Application for declaration of nullity of marriage – where party lawfully married to some other person at time of purported marriage – marriage declared null and void

FAMILY LAW – JURISDICTION – consideration of court’s jurisdiction with respect to property settlement and children’s matters where marriage void

Family Law Act 1975 (Cth) ss 4, 51, 60E & 71
Marriage Act 1961 (Cth) ss 23B & 91

C v C (Nullity) (1998) FLC 92-824
Lynch and Slater (1977) FLC 90-309

APPLICANT: MR BROKENSHIRE

RESPONDENT: MS ROGERS

FILE NUMBER: ADC 2115 of 2008

DATE DELIVERED: 1 AUGUST 2008

PLACE DELIVERED:

Adelaide

(In Chambers)

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 25 JULY 2008

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

UPON NOTING that the application of the husband filed on 13 June 2008 for a decree of nullity of marriage on the ground that such marriage is void was heard on 25 July 2008

Orders

1. The Court was satisfied that the applicant husband was an Australian Citizen.

2. The Court was satisfied that the ground was proved.

3. The Court was satisfied that the marriage solemnised at T in the State of South Australia on … March 2000 between Mr Brokenshire and Ms Rogers is absolutely null and void.

IT IS NOTED that publication of this judgment under the pseudonym Brokenshire & Rogers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2115  of 2008

MR BROKENSHIRE

Applicant

And

MS ROGERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me for determination an application for declaration of nullity of a marriage under the Family Law Act 1975 (Cth) (“the Act”).

2. On 13 June 2008 the husband Mr Brokenshire filed an application pursuant to the Act that his marriage to the wife Ms Rogers in March 2000 be declared null and void.

3. The wife was served with this application.  She has not filed any documents in response to this application but was present at the hearing on 25 July 2008.

Background

1. The applicant husband was born in May 1969 and is aged 39 years.

2. The respondent wife was born in January 1970 and is now aged 38 years.

3. The parties were married in March 2000 at T in the State of South Australia. The husband states that at the time of his marriage to the wife he was required to complete a Notice of Intention form, on which he was required to indicate his marital status. The husband states that he was not required to produce any evidence in support of his assertion that he was divorced.  Both he and his former wife Ms G believed that they were divorced during general negotiations and proceedings around ancillary issues which flowed from their marriage break down.

4. There are two children of the marriage, a daughter born in December 2000, currently aged 7 years and a son born in March 2004 and who is hence currently aged 4 years.

5. The parties separated on 5 April 2005. From that date the parties have lived separately and apart. On 27 May 2005, the parties entered into a financial agreement pursuant to s90C of the Act.

6. Proceedings as to the children of the parties commenced in the Federal Magistrates Court in October 2006 with final orders made on 22 June 2007 by Mead FM.

7. The husband filed an application for divorce from the wife on 28 May 2007.

8. The husband’s previous wife, Ms G, contacted him on 30 May 2007. She had been in contact with the Registrar of Births, Deaths and Marriages to obtain a copy of the divorce certificate when she was informed that she was recorded as still being married to the husband. Ms G informed the husband of the same.

9. The father’s application for divorce from the wife was then discontinued and a joint application for divorce from Ms G was filed on 8 June 2007.

10. The divorce order was granted to take effect on 4 August 2007.

11. The father filed his application to have the marriage declared null and void in the Family Court on 13 June 2008.

Hearing and Evidence

1. At the hearing on 25 July 2008, the husband attended by telephone link and the wife attended in person. Both parties were unrepresented.

2. The husband relied on his affidavit filed 13 June 2008 and an affidavit filed by Ms G on 13 June 2008.

3. The wife filed no documents in these proceedings and indicated at the hearing that she did not oppose the application. However, she indicated concern about the effects of a nullity being granted, particularly upon the status of the children of the marriage.

The Law

1. A decree of nullity can be made on the ground that the marriage is void- s 51 Family Law Act 1975 (Cth). (C v C (Nullity) (1998) FLC 92-824)

2. Section 23B of the Marriage Act 1961 sets out the grounds upon which a marriage is 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 marriage age;

   and not otherwise.

3. Here, the husband is relying on s.23B(1)(a), namely that he was lawfully married to another person at the time of the purported marriage to the wife.

4. A marriage where one person is already married to another person at the time of the marriage is void as it is bigamous. 

5. It does not matter if either party is aware that there is a lawful marriage already in existence. Knowledge and intent may be relevant to criminal proceedings for bigamy, but all that the court has to be satisfied about is that when the second marriage ceremony took place, one of the parties was lawfully married to some other person.

6. The husband asserts that at the time of his marriage to the wife in March 2004. Although he thought otherwise, he was not validly divorced from Ms G. The husband was not validly divorced from Ms G until 4 August 2007, as demonstrated by the Certificate of Divorce annexed to his affidavit of 13 June 2008.

7. The cases regarding nullity of marriage on the ground of bigamy often involve a marriage entered into overseas, a question of the validity of a marriage ceremony or a question of whether one party of the initial marriage is dead. Here is the very rare case of a domestic marriage involving no such questions. The law is clear as are the facts. The husband should be granted his application to have the marriage declared null and void.

Legislation and cases

1. Whilst it is not necessary for me to do so, I now turn to issues which concerned the wife.

2. Section 4 of the Family Law Act 1975 (Cth) provides that marriage “includes a void marriage”.

3. Additionally, s60E provides that Part VII of the Act (dealing with children) applies in relation to a purported marriage that is void as if:

   (a)the purported marriage were a marriage; and

   (b)the parties to the purported marriage were husband and wife.

4. Section 71 of the Family Law Act 1975 provides that in Part VIII (dealing with property, spousal maintenance and maintenance agreements), marriage includes a void marriage.

5. Section 91 of the Marriage Act 1961 provides:

   Legitimacy of children of certain void marriages

   (1)Subject to this section, a child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later, if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid. 

   (2)Subsection (1) does not apply unless one of the parents of the child was domiciled in Australia at the time of the birth of the child or, having died before that time, was domiciled in Australia immediately before his or her death.

   (3)Subsection (1) applies in relation to a child whether the child was born before or after the commencement of this Act, whether the ceremony of marriage took place before or after the commencement of this Act and whether the ceremony of marriage took place in or outside Australia.

   (4)This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the birth of the child or the commencement of this Act, whichever was the later.

6. In Lynch and Slater (1977) 30 FLC 90-309, the wife appealed from the decision of a trial judge who held that he did not have jurisdiction to hear her custody case after she was granted her application for a decree of nullity on the grounds of the husband’s bigamy.

7. The Full Court held that section 60 (the equivalent of the current s 4 definition of marriage) meant that the provisions in Part VII relating to the custody and welfare of the children apply to the children of a void marriage. The Full Court stated (at 76643):

   Is a marriage void ab initio because bigamous, a marriage which has been ''annulled'' when a decree of nullity is pronounced? Taking the dictionary meaning of ''annul'' to mean ''declare invalid'' and having regard to the clear intention of the Family Law Act that, like its predecessor, relief in ancillary matters should be provided for both dissolved and annulled marriages, we consider that a broad definition should prevail. The act of declaring invalid a void marriage still contains an active legal ingredient. It puts the invalidity of the marriage legally beyond doubt. It clarifies the position for the parties, their children (if any) and the world at large. We see no reason to give the words a narrower meaning.

   It follows therefore that a marriage declared void is an annulled marriage caught within the definition of sec. 4(2) and accordingly the words of paragraph (e) of ''matrimonial cause''  in sec. 4(1)

8. In C and C (Nullity) [1998] FamCA 114 the Full Court stated in relation to s71 of the Act (at para 15):

   Thus the references in s74 to the power of a court to make an order for maintenance of a party to a marriage and in s79 to the power of a court to make orders for alteration of property interests in proceedings with respect to the property of the parties to a marriage or either of them apply equally whether the marriage was a valid marriage or a void marriage.  The question of the validity of this marriage would thus appear to have little, if any, impact upon jurisdictional questions in respect of maintenance and property settlement.

9. Therefore, the provisions of the Act dealing with property settlement and the children clearly still apply to these parties. Further, as provided by the Marriage Act, there are no adverse consequences or repercussions for the children.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: