CHABRA & CHABRA

In *Chabra & Chabra* [2020] FamCA 1113, the Family Court of Australia considered an application by Ms Chabra (the wife) for a decree of nullity of her marriage to Mr Chabra (the husband). The wife sought the nullity on the grounds that the husband was already lawfully married to another person at the time of their marriage ceremony in mid-2018. The husband did not file any material or cross-examine the wife to challenge her assertions.

The primary legal issue before the court was whether the marriage was void pursuant to s 23B(1)(a) of the *Marriage Act 1961* (Cth), which states that a marriage is void if either party is lawfully married to another person at the time of the marriage. The court also considered an oral application by the husband for an adjournment, which was made during the hearing.

Justice Tree applied the principle that the presumption of a valid marriage casts the burden of proof on those alleging invalidity, requiring reasonable evidence of the impediment. The standard of proof was the balance of probabilities, with the court taking into account the gravity of the allegation. The court found that the cumulative evidence, including the first wife's passport showing she was still married to the husband, the husband's request for the first wife to be a second wife in their relationship, and his transfer of a significant sum of money to the first wife, persuaded it on the balance of probabilities that the husband was not divorced at the time of his marriage to the wife. The husband's inconsistent explanations and failure to challenge the wife's evidence further supported this conclusion. The court also refused the husband's adjournment application, finding he had been afforded sufficient opportunity to present his case and that the interests of justice supported the hearing proceeding.

The court declared the marriage between Ms Chabra and Mr Chabra void on the ground that the husband was lawfully married to another person at the time of their marriage, thus rendering the marriage a nullity. The wife's Initiating Application was otherwise dismissed.