Chevalier & Anker
[2025] FedCFamC1F 44
•31 January 2025
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
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”).
The applicant and respondent thought the respondent had been lawfully divorced arising out of an earlier marriage in Nigeria (“the respondent’s Nigerian marriage”).
It turned out that he was not.
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 commend them for their honesty.
It is common ground that the respondent’s Nigerian marriage is one that is recognised in Australia, and I refer to s 88D of the Marriage Act 1961 (Cth) (“the Marriage Act”).
Material
The material I have before me is the applicant’s Initiating Application and Affidavit of 19 September 2024, an Affidavit of Service on the respondent dated 26 September 2024 and the respondent’s Submitting Notice of 26 September 2024.
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
Section 51 of the Family Law Act1975 (Cth) provides that an application for a decree of nullity of marriage shall be based on the ground that the marriage was void. A void marriage is of no effect in law. It is not a marriage at all, whether or not a decree declaring it void has been pronounced. The decree of nullity is simply a declaration which confirms the fact that there was never a valid marriage.
Section 23B of the Marriage Act sets out the grounds for a decree of nullity of marriage. Section 23B(1) of the marriage act sets out the bases upon which a marriage is void, and provides:
Grounds on which marriages are 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 did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
Relevantly of course, subsection (1)(a) says: “either of the parties” are “lawfully married to some other person”.
A decree of nullity is non-discretionary; if nullity is made out, a decree must be made, and I refer to the case of Hamwi v Omar [2012] FamCAFC 174 at [54].
I am well satisfied on the evidence before me, that the Australian marriage is in fact a nullity. Therefore, I make the following orders.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 3 February 2025
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