Brune and Cline

[2018] FCWA 209

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: BRUNE and CLINE [2018] FCWA 209

CORAM: DUNCANSON J

HEARD: 22 OCTOBER 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 6141 of 2018

BETWEEN: MR BRUNE

AND

MS CLINE

Applicants

Catchwords:

FAMILY LAW - Declaration of validity of marriage

Legislation:

Marriage Act 1961 (Cth) s 41, s 48

Category: Reportable

Representation:

Counsel:

Applicants : Self-represented & No Appearance

Solicitors:

Applicants : CD Lawyers

Case(s) referred to in decision(s):

W and T (1998) FLC 92-808

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application before the Court is an initiating application of [Mr Brune] and [Ms Cline] filed on 1 August 2018.

2The orders sought by the applicants are as follows:

1It is declared that the marriage between [Mr Brune] and [Ms Cline] is valid and was duly solemnised in a wedding ceremony [in] 2017.

2It is requested that the [Registrar] of Births, Deaths and Marriages in the State of Western Australia record on the [Register] the marriage of [Mr Brune] (the "husband") and [Ms Cline] (the "wife") who were married [in] 2017 at [Perth].

BACKGROUND AND BRIEF HISTORY

3The parties have lived together since August 2012. [In] 2017, their wedding ceremony was held in [Perth]. The celebrant for the ceremony was [Pastor P] who is known to both parties through family members and the [church community].

4[Five days prior to the wedding ceremony], Pastor P informed Ms Cline of "an issue" with his marriage licence. He informed her he was "in the process of changing his marriage licence over", but in the event his licence was not processed and ready for the ceremony he would arrange for another pastor to witness and conduct the ceremony.

5[Two days prior to the wedding ceremony], Pastor P informed Ms Cline that it seemed his licence would be processed in time for the ceremony. Nevertheless, Pastor P also said he would organise another pastor to witness the ceremony. Ms Cline relayed her conversations with Pastor P to Mr Brune.

6The wedding ceremony took place [in] 2017 conducted by Pastor P. The parties signed the marriage documents and were announced as husband and wife.

7When the parties applied to obtain their marriage certificate they were informed there was a problem. The parties then learned Pastor P was not authorised to solemnise the marriage. Pastor P subsequently told them that the pastor he had organised to witness the ceremony had been unable to attend.

8Both parties wish their marriage certificate to reflect the date of their wedding ceremony.

9Mr Brune is a member of the [public service] and wishes to ensure any spousal benefits which may accrue to Ms Cline will be dated from [the date of the ceremony in] 2017.

10The parties are unable to register the marriage and obtain a marriage certificate as the celebrant, Pastor P was not authorised to solemnise the marriage on the date of the ceremony.

THE LEGAL PRINCIPLES

11Pursuant to ss 41 and 48(1) of the Marriage Act 1961 (Cth), a marriage conducted other than by or in the presence of an authorised celebrant, is with one exception not a valid marriage. The exception to invalidity is contained in s 48(3) of the said Act which provides as follows:

A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.

12The requirements of the section are twofold:

(a)that one of the parties to the marriage at the time it was solemnised believed the person solemnising the marriage was authorised to do so; and

(b)the form and ceremony of the marriage showed an intention on the part of each of the parties to become the lawfully wedded spouse of the other by that ceremony.

13Ms Cline deposes that she believed Pastor P held a valid marriage licence at the ceremony. Mr Brune deposes he thought Pastor P was properly able to perform the ceremony on the day.

14Both parties intended to be married on the day of the ceremony, namely [in] 2017 and depose that in their minds they were married.

15I accept that each of the parties intended, by the ceremony, to become the lawfully wedded spouse of the other.

CONCLUSION

16I am satisfied that the parties have met the requirements set out in s 48(3) of the Act above and I intend to make the orders sought.

17I note from the evidence filed that present at the ceremony was Ms Cline's uncle, [Mr Cline] who is a pastor and a person authorised to solemnise a marriage. He was a guest at the ceremony and present at all material times.

18It is not necessary for me to consider the presence of Mr Cline, the authorised celebrant, because the parties have met the requirements in s 48(3) of the Act. In any event, Mr Cline was not present for the purpose of ensuring the validity of the marriage as the parties believed that Pastor P was so authorised (W and T (1998) FLC 92-808).

THE ORDERS

19I make the following orders:

1It is declared that the marriage between [Mr Brune] and [Ms Cline] is valid and was duly solemnised in a wedding ceremony [in] 2017.

2It is requested that the Registrar of Births, Deaths and Marriages in the State of Western Australia record on the Register the marriage of [Mr Brune] (the "husband") and [Ms Cline] (the "wife") who were married [in] 2017 at [Perth].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

1 NOVEMBER 2018