Caton and Caton

[2010] FamCA 672

FAMILY COURT OF AUSTRALIA

CATON & CATON [2010] FamCA 672

FAMILY LAW – MARRIAGE – validity of a previous marriage to the same party – held that marriage is only invalid if married to a different person at the time of the subsequent marriage

Marriage Act 1961 (Cth) s 23B

APPLICANT: Mrs Caton

RESPONDENT: Mr Caton

FILE NUMBER: ADC 2888 of 2009

DATE DELIVERED: 29 July 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Davies

SOLICITOR FOR THE APPLICANT: SCALES & PARTNERS

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: IN PERSON

Orders

1. The Registry accept the Application for Divorce of and in relation to that marriage and that it proceed in the normal course.

2. The Initiating Application filed on 15 June 2010 is dismissed.

UPON NOTING that the husband is present and is consenting to these arrangements and puts nothing before the Court which would detract from the material in front of the Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2888 of 2009

MS CATON

Applicant

And

MR CATON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an initiating application filed on behalf of the wife on 15 June 2010.  As is clear from discussions which have taken place in Court, this is an unusual matter.  The final orders sought in that application were “that the marriages of […] October 1990 and […] October 2010 between the applicant and respondent be declared invalid; that the orders for divorce made on 2 November 1999 and be declared invalid.” 

2. In the affidavit in support of those applications the wife also seeks that there be an order for divorce with respect to a marriage which was entered into between the parties on … July 1990.  The affidavit of the wife refers to that marriage taking place in Fiji in 1990. 

3. Subsequently, however, the parties were married again in Australia on … October 1990 and thereafter that marriage was the subject of a divorce. 

4. They reconciled and married again on … October 2007, separated in May 2009, and that marriage has resulted in divorce. 

5. For the reasons which were set out in the affidavit of the wife, it appears that at least the wife was under a misapprehension in relation to the validity of the first marriage, and that was the reason for the second ceremony taking place. 

6. I am satisfied, on the evidence before me, that it is appropriate to allow the parties to continue with an application for a dissolution of the marriage which was entered into on … July 1990 in the normal course, notwithstanding the unusual further ceremonies and divorces.

7. I am not proceeding to make the orders sought in the initiating application because of the difficulties in the interpretation of the sections of the Marriage Act 1961 as amended, in particular, section 23B. 

8. The Marriage Act 1961 refers to a marriage being void if either party is at the time of the marriage, lawfully married to some other person.

9. It is appropriate for the application for divorce, in relation to the marriage which took place in Fiji on … July 1990, to take place in the normal course notwithstanding the other ceremonies and proceedings. 

10. I direct that the Registry accept the application for divorce in relation to that marriage and that it proceed in the normal course. 

11. The husband is present and is consenting to these arrangements.  He puts nothing to the Court which would detract from the material before the Court. 

12. I otherwise dismiss the initiating application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5 August 2010