Chevalier & Anker

Case [2025] FedCFamC1F 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Chevalier & Anker [2025] FedCFamC1F 44

File number(s): TVC 945 of 2024
Judgment of: BRASCH J
Date of judgment: 31 January 2025
Catchwords: FAMILY LAW - NULLITY - Where parties thought respondent divorced from first wife in a foreign jurisdiction - Where parties then married in Australia thinking the respondent was free to do so - Where parties both seek the Australian marriage be declared null and void - Where s 23B(1)(a) Marriage Act 1996 (Cth) engaged -  Where respondent will perfect divorce in the foreign jurisdiction - Where parties will then lawfully marry in Australia - Order that Australian marriage be declared null and void
Legislation:

Family Law Act 1975 (Cth) s 51

Marriage Act 1961 (Cth) ss 23B, 88D

Cases cited: Hamwi v Omar [2012] FamCAFC 174
Division: Division 1 First Instance
Number of paragraphs: 27
Date of hearing: 31 January 2024
Place: Townsville
The Applicant: Litigant in Person
The Respondent: Litigant in person

ORDERS

TVC 945 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CHEVALIER

Applicant
AND:

MR ANKER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

31 JANUARY 2025

THE COURT ORDERS THAT:

1.The marriage entered into between the applicant, Ms Chevalier and the respondent, Mr Anker at City B in mid-2023 is declared null and void.

2.All extant applications be otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chevalier & Anker has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BRASCH J

  1. This matter concerns an application for a decree of nullity of marriage in relation to the marriage between the applicant, Ms Chevalier, and the respondent, Mr Anker, which was solemnised in City B in mid-2023 (“the respondent’s Australian marriage”).

  2. The applicant and respondent thought the respondent had been lawfully divorced arising out of an earlier marriage in Nigeria (“the respondent’s Nigerian marriage”).

  3. It turned out that he was not.

  4. I commend the applicant and respondent for the honesty in bringing this application. It would have been very easy for them to rely upon their Australian marriage certificate and in effect pretend that the respondent’s Nigerian marriage had ended, and the respondent and the earlier wife had been properly divorced. I…

Continue reading Chevalier & Anker

Sign in free to access the full text

Details
AGLC
Chevalier & Anker [2025] FedCFamC1F 44
Case
[2025] FedCFamC1F 44
Decision Date

CaseChat Overview and Summary

The case of Chevalier & Anker was heard by the Federal Circuit and Family Court of Australia. The applicant, Ms Chevalier, and the respondent, Mr Anker, had married in Australia in mid-2023. However, they subsequently discovered that the respondent had not been legally divorced from his first wife in Nigeria at the time of their marriage, leading them to jointly seek a declaration that their Australian marriage was null and void. The court needed to determine whether the marriage was valid under Australian law, particularly in light of the respondent's situation with his previous marriage in Nigeria.

The central issue before the court was whether the marriage between Ms Chevalier and Mr Anker was valid under Australian law, considering the respondent's ongoing legal situation in Nigeria. The court examined the requirements of section 23B(1)(a) of the Marriage Act 1961 (Cth), which states that a marriage is void if one of the parties is already married to someone else. The court assessed whether Mr Anker was still legally married to his first wife under Nigerian law, and thus whether his marriage to Ms Chevalier was valid. The court also had to consider the practical implications of the parties' belief that the respondent was divorced and the potential impact on their relationship and child.

In its reasoning, the court found that Mr Anker was indeed still legally married to his first wife under Nigerian law due to an incomplete divorce process. Consequently, the court concluded that the marriage between Mr Anker and Ms Chevalier was void under section 23B(1)(a) of the Marriage Act. The court emphasised that the parties' belief about the respondent's marital status did not alter the legal reality of his ongoing marriage in Nigeria. The court further noted that once the respondent completes the divorce process in Nigeria, he and Ms Chevalier will be free to marry lawfully in Australia. The court declared the Australian marriage null and void and dismissed all other applications.

The court ordered that the marriage between Ms Chevalier and Mr Anker, entered into at City B in mid-2023, be declared null and void. All other applications were dismissed. This order allows the parties to potentially remarry once the respondent's divorce is properly finalised in Nigeria.

Orders

Orders of the court

TVC 945 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CHEVALIER

Applicant

AND:

MR ANKER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

31 JANUARY 2025

THE COURT ORDERS THAT:

1. The marriage entered into between the applicant, Ms Chevalier and the respondent, Mr Anker at City B in mid-2023 is declared null and void.

2. All extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Both the applicant and respondent appear before me today. It is really a joint application that is brought. Background As said, the applicant and respondent thought they were lawfully married in mid-2023 at the Courthouse in City B. Their [Australian] marriage certificate is Annexure 1 to the Affidavit filed on 19 September 2024. The applicant has not been previously married and as said, they both thought the respondent had been validly divorced at the time of their [Australian] marriage. The respondent was married for the first time in early 2013, being the respondent’s Nigerian marriage. That marriage certificate is in evidence before me as well. In mid-2018, the wife to the Nigerian wedding applied for a divorce petition including a petition for a decree of the dissolution of marriage, which was served upon the respondent. Unfortunately, the application was not concluded as is required by Nigerian law to complete the application. The petition is also in evidence before me. The respondent then thought he would file or tried to file his own suit for divorce as another petition arising out of that Nigerian marriage. A Certificate of Decree Nisi of the dissolution of marriage between the parties [to the Nigerian wedding] was finalised in early 2019, and that decree is before me as well. The respondent then believed that was the end of his Nigerian marriage and he was free to marry if he so chose. However, because the application by the wife to the Nigerian wedding was still open, that meant the divorce was not properly granted. After the applicant’s and respondent’s [Australian] marriage, the respondent was contacted by the wife to the Nigerian wedding, informing him that she had not concluded the divorce that she had initiated in 2019 and by Nigerian law, the respondent was still married to her. The applicant and respondent both tell me they were in shock and disbelief that this was the case. To their very great credit they then contacted a lawyer in Nigeria who confirmed that if the first petition for dissolution of marriage is not completed, and is still pending and undecided, then no matter the respondent’s application, they still remain, if you will, effectively “un-divorced”. I am told that the respondent has filed a cross-application in the Nigerian proceedings and that has a first return next month in early 2025. The applicant and respondent understand then that the marriage between them is void as defined in s 23B(1)(A) of the Marriage Act because the respondent, at the time of their Australian marriage, was still lawfully married to some other person. The applicant and respondent met in mid-2022 and moved in together as a de facto couple in early 2023. As per custom, in mid-2023 the respondent sent his people to the applicant’s family to perform the customary marriage rights which entailed paying a large sum of money and animals as bride prices: part of the cultural requirements. They have also been blessed with their first child X, born 2023. Legal principles

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.