Colvin and Sailor

[2020] FamCA 244

FAMILY COURT OF AUSTRALIA

COLVIN & SAILOR [2020] FamCA 244

FAMILY LAW – NULLITY – Application by Husband for a decree of nullity of marriage – Where the Husband contends that the Wife was lawfully married to another person at the time of the marriage – Where it is found that the Wife was lawfully married to another person at the time of the marriage – Where the marriage was therefore void – Decree of nullity granted.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

Axon v Axon (1937) 50 CLR 395

APPLICANT: Mr Colvin

RESPONDENT: Ms Sailor

FILE NUMBER: BRC 2250 of 2018

DATE DELIVERED: 17 April 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 March 2020

REPRESENTATION

THE APPLICANT: Self-Represented

SOLICITOR FOR THE RESPONDENT:

Ms Donald (by telephone)

AustralAsia Law

Orders

1. It is declared that the Marriage between Mr Colvin and Ms Sailor solemnised on … 2012 at Brisbane in the State of Queensland it void on the ground the Respondent was lawfully married to another person at the time the said marriage was solemnised and thus the said marriage is a nullity.

2. That pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), a copy of these Reasons for Judgment may be provided to the Office of the Director of Public Prosecutions, Queensland in support of any submissions made on behalf of the Respondent to that Office.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colvin & Sailor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2250 of 2018

Mr Colvin

Applicant

And

Ms Sailor

Respondent

REASONS FOR JUDGMENT

1. In 2012, the Applicant and the Respondent went through a civil ceremony in Brisbane solemnising marriage between them.

2. On their Marriage Certificate issued by the Registrar-General of Births, Deaths and Marriages, Queensland, the Applicant Husband’s marital status is listed as “divorced”. In fact, he had been married a few times before. At the time, he signed a declaration pursuant to the Marriage Act 1961 (Cth) that he was a divorced person. The Respondent Wife’s marital status is listed as “never validly married”, she having signed a declaration that she had “never been validly married” and was not “married to another person”.

3. The couple’s marriage relationship broke down and in May 2017 they separated on a final basis. The husband applies to this Court for a declaration of nullity in respect of their 2012 marriage. His application came on before me on Monday, 23 March 2020.

4. Since the Family Law Act 1975 (Cth) has been law in Australia, a declaration of nullity in relation to a marriage can only be made on the basis that the marriage was void at the time it was entered into. Pursuant to s 23B of the Marriage Act 1961 (Cth) a marriage 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;

   and not otherwise.

5. The Applicant is entitled to institute proceedings in this Court seeking a declaration of nullity of the marriage pursuant to s 44(1A) of the Family Law Act 1975 (Cth). The Applicant’s application for a declaration of nullity is a straight forward one. It is based on his assertion that the Respondent was, at the time of the marriage to him, lawfully married to some other person.

6. As Dixon J (as he then was) said in Axon v Axon (1937) 50 CLR 395 at 404:

   The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony.

7. Accordingly, the burden of producing reasonable evidence of the fact that the Respondent was, at the time of the marriage, lawfully married to some other person falls on the Applicant. The standard of proof required is on the balance of probabilities.

The Evidence

1. The Applicant asserts that the Respondent went through three marriage ceremonies in the Philippines, her country of birth and residence until she came to Australia and married the Applicant in this country in 2012. He asserts the Respondent married a man whose name he does not know in 1980 and that she had a son from that relationship. The Applicant asserts that he has not found any record of that marriage.

2. The Applicant asserts that later, in 1987, the Respondent married another man, Mr C Junior. The Applicant has adduced into evidence an apparently certified copy of a Marriage Contract from the Philippines Statistics Authority evidencing that marriage (prima facie evidence of the facts stated in it and of the validity of the marriage to which the document relates – pursuant to s 88G of the Marriage Act 1961 (Cth)).

10.The Applicant asserts that later again, in 1990, the Respondent married Mr D. He has adduced into evidence an apparently certified copy of a Marriage Contract from the Philippines Statistics Authority also evidencing that marriage.

11.The Applicant adduced into evidence (attached as an exhibit to his own affidavit) an affidavit of Mr F who deposed to being a lawyer licensed to practise law in the Philippines. That witness deposed to being shown copies of the said two Philippines Marriage Contracts by the Applicant. He expressed the opinion that those marriages had not been annulled or invalidated in the Philippines because if they had been such copies of registration would necessarily have an annotation of annulment in the side marginal portion of the said copy. He pointed out that neither of them do.

12.Relevantly, the Respondent’s solicitor, who had made and filed an affidavit in the Respondent’s case, adduced into evidence a letter received from Ms G, who described herself as an Attorney-at-Law in City P in the Philippines. That letter is dated 12 April 2019. That Attorney set out Article 45 of the Family Code of the Philippines which sets out the basis upon which marriages may be annulled in the Philippines. She goes on in the letter to say:

Record of Annulment

If a couple successfully annuls their marriage, they will have it recorded in the Local Civil Registrar of the place where they got married and also in the Philippines Statistics Authority– where all marriages are registered and annulments annotated on the couple’s Certificate of Marriage. A party to the marriage or any duly authorized person may acquire a copy thereof by requesting for a copy from this office. We can also ask from the Office of the Solicitor General if there is a record of annulment between parties.

1. Ms G goes on to cite Article 40 of the Family Code of the Philippines. It says:

   The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

2. It would seem that the two Philippines lawyers are in furious agreement about the fact that if a marriage in the Philippines has been annulled there would be an annotation on the former couple’s Marriage Contract.

3. It does not seem to be in dispute between the Applicant and the Respondent that legal dissolution of marriage was not available in the Philippines prior to the marriage in Australia of the Applicant and the Respondent in 2012. The Philippines is one of a very small number of countries in the world in which divorce is not lawful.

4. It is clear therefore that for a person to validly marry in the Philippines prior to 2012, they must not have been validly married before or, at least, have had any prior marriage ended by the death of their spouse or a formal declaration of annulment from a Court of law.

The Respondent’s Marriages

1. In her affidavit evidence, the Respondent concedes that she was “married” in 1980. She was born in 1965, so at the time of that marriage she was still 14 years of age and about to turn 15. According to the Philippines lawyer, Ms G, a female could marry in the Philippines prior to 3 August 1988 if she was 14 years of age. The Respondent deposed to this being “a cultural marriage arranged between the parents.” She said that there “was no marriage certificate and the marriage was never recorded”. She left that “marriage”, she said, in September 1980. She named the man she was “married” to as Ms H and she said he is the father of her son who was born in 1981. With the average human pregnancy being of 38 weeks’ duration, her evidence about when she separated from him could only be correct if they nevertheless had sexual intercourse at some time in the few months after separation.  In any event, that does not matter.

2. If the Respondent’s marriage to Ms H was a valid marriage, without evidence that it either was lawfully annulled or that Ms H had died before 2 November 1987, her subsequent marriage to Mr C Junior could not be considered a valid marriage pursuant to Australian law.

3. According to Ms G, the marriageable age for females in the Philippines prior to 3 August 1988 was 14. Accordingly, the Respondent was of marriageable age at the date she said she married Ms H. The Respondent’s evidence was that there was no Marriage Certificate (presumably she means Marriage Contract, as that document appears to be called in the Philippines, but she could mean a license, as there is evidence from Ms G that suggests that a couple gets a “marriage license” when they marry in the Philippines) and that the marriage “was never recorded”.

4. Ms G said in her letter:

   Even if one of the parties is a minor, the marriage should have been registered. If they got a marriage license but no marriage was solemnized, then there is no marriage to speak of. If they got a license and they got married but the marriage was not registered, the marriage can still be considered valid until declared void. There is a need to check with the Local Civil Registrar if the marriage record cannot be found in the Philippines Statistics Authority. (as written by Ms G)

5. That letter was obtained by the Respondent’s lawyers in April last year, 2019. There is no further evidence adduced for the Respondent about this issue. There is nothing said in her evidence about having checked with the Local Civil Registrar to see if there was any record of the 1980 “marriage”. There is no evidence from or for the Respondent that goes very far at all to proving the validity of that 1980 “marriage”. The expert evidence of Ms G does not go on further to discuss what was actually required by way of legal formalities in 1980 in order to establish a valid marriage in the Philippines.

6. Without any of that evidence, I am left in the position of saying that I am not satisfied that a marriage considered valid under Philippines law or Australian law actually was solemnised in 1980 between the Respondent and Ms H. Therefore, the absence of any evidence that such a “marriage” was declared a nullity or that Ms H died before 2 November 1987 does not cause me to consider that the 1987 marriage to Mr C Junior was an invalid marriage as I would have to if I considered the 1980 alleged “marriage” of the Respondent a valid one. 

7. Accordingly, as I am not satisfied that the Respondent lawfully married Ms H in the Philippines in 1980 and as there is a certified copy of a relevant Marriage Contract from the Philippines Statistics Authority showing the marriage between the Respondent and Mr C that was solemnised in the Philippines on in 1987, the evidence satisfies me, on the balance of probabilities, that indeed the Respondent’s marriage to Mr C was a valid marriage. 

8. The Applicant adduced into evidence an apparently certified copy of another Marriage Contract from the Philippines Statistics Authority. The Respondent is listed as the wife and Mr D is listed as the husband. According to the evidence adduced by the Applicant, Mr D has since died this year, 2020.

9. If that marriage was a valid one and it was not annulled, then it subsisted at the time of the Applicant’s marriage to the Respondent. The Respondent herself has not produced any evidence that it was lawfully annulled in the Philippines or in this country. Indeed, in a Statutory Declaration purportedly signed by the Respondent on 29 December 2016, a copy of which the Applicant adduced into evidence, the Respondent herself declared “marriage No 3 this is not a legal marriage because I am already married to Mr C.” In her affidavit filed 18 October 2018, the Respondent said, in a similar vein, “the third was not recorded because I was still legally married to Mr C.”

10. The latter of those statements appears to be incorrect, at least, as the Applicant was able to adduce the Marriage Contract registered with the Philippines Statistics Authority showing it was actually “recorded” or registered. Accepting the evidence of Mr F, the Philippines lawyer who the Applicant has relied upon, that the registered Marriage Contract would “necessarily have an annotation of annulment in the side marginal portion of the said copy” if the marriage had been annulled, I have no reason at all to consider that the marriage to Mr D was annulled at the time the Applicant and the Respondent married in 2012. Indeed, the Respondent offered no evidence at all that the marriage to Mr D had ever been annulled. Further, I have no reason to believe that Mr D was dead in 2012 either at the time the Applicant and the Respondent purported to marry here in Australia.

11. Accordingly, if the marriage to Mr D was a valid marriage, the marriage between the Applicant and the Respondent could not be and would have to be void and be declared a nullity. It is as straight forward as that.

12. So, was the marriage to Mr D a valid marriage? The Respondent herself has said that marriage to Mr D was not a valid marriage as she was still legally married to Mr C. If she was still lawfully married to Mr C then she was right about that and her marriage to Mr D was invalid and is a void marriage and did not subsist at the time she went through a marriage ceremony with the Applicant.

13. So, satisfied that the Respondent did lawfully marry Mr C, the question then is whether she was still lawfully married to him when she purported to marry Mr D. The certified copy of the Marriage Contract from the Philippines Statistics Authority adduced into evidence does not have “an annotation of annulment in the side marginal portion of the said copy” as Mr F said would be showing on the registered document in the event that the marriage had been annulled in the Philippines. That absence necessarily begs the question as to how it was that the Philippines registration authority could itself permit the registration of a marriage between the Respondent and Mr D when a registered Marriage Contract of only three years prior between the Respondent and another man did not bear evidence of formal annulment. However, on the face of the registered Marriage Contract between Mr D and the Respondent, she is recorded as being “single” and not “widowed or divorced” (as the form also appears to permit being recorded), at the time of marrying Mr D. Perhaps that representation, however made by the Respondent to the authorities at the time, was enough to not put the authorities (the Philippines Statistics Authority) on notice to search its own records to determine if both parties were truly free to marry. It is not for me to speculate in this judgment about the internal workings of another sovereign nation’s bureaucracy, in any event.

14. At the hearing before me, the Respondent’s solicitor took me to another document that was adduced into evidence. It purported to be a certified copy of a document verifying a search of its records by the Philippines Statistics Authority in respect of the name of Mr C Junior date of birth … 1956 and born to Mr C senior and Ms L in Q City (where the Respondent and he married). It records Mr C Junior as marrying the Respondent in 1987, as is not in dispute. It also records him as marrying another woman in P City on … July 1994.

15. The Respondent’s solicitor submitted that is evidence that throws doubt onto the legal status of the Respondent’s marriage to Mr C. By that, I understood her to be submitting that if Mr C considered himself free to marry again, as did the Respondent when she married Mr D, then it is entirely possible that they may both have been correct and that they were free to marry again.

16. With all due respect to the Respondent’s solicitor, that ignores the evidence that she herself adduced from the Philippines lawyer, Ms G, that “annulments [are] annotated on the couple’s Certificate of Marriage”, the same evidence that Mr F deposed to for the Applicant. It also ignores the Respondent’s own complete omission of any evidence that she and/or Mr C obtained an annulment of their marriage. Indeed, the Respondent asserted in the 2016 Statutory Declaration that the validity of her marriage to Mr C was the basis for the invalidity of her marriage to Mr D. The document suggests that not only did the Respondent apparently ignore the fact that she was already married to Mr C when she purported to marry Mr M, but that also Mr C apparently ignored the fact that he was already married to the Respondent when he subsequently remarried.

17. The Respondent also said something curiously relevant in paragraph 3 of her affidavit filed on 18 October 2018. She said that she separated from Mr C soon after their marriage and had not heard from him for 7 years. She said then that she “held an honest belief (based on verbal advice by a lawyer in the Philippines) that the law in the Philippines allows a person to remarry if her partner has been absent for 5 years or more” so she felt free to marry the Applicant when she did. That seriously brings into question her state of mind at the time she purportedly married Mr D only three years after her marriage to Mr C, though she might well have only obtained that legal advice in the time just before she purportedly married the Applicant. That begs and leaves unanswered the question why she would have signed the declaration at the time of marrying the Applicant that she had never been validly married before. She clearly seems to think now that she had been validly married to Mr C and says she just came to believe that she could remarry after being “abandoned” without the need to get that marriage annulled.

18. In any event, the legal advice she said she got appears to have been erroneous. The opinion of the Philippines lawyer, Ms G, adduced into evidence by the Respondent’s own solicitor, is that the Philippines law does not permit a marriage to be “annulled on the ground that both partners had no contact with each other for five years or more”. She also went on to say that non-communication between spouses is not included as a ground for declaring a marriage a nullity. I have no reason not to accept that evidence as correct.

1. Accordingly, I am, on the balance of probabilities, satisfied that the Respondent’s 1987 marriage to Mr C was a valid marriage and that it has never been lawfully annulled. It is apparently clear that Mr C was still alive in 1990 when the Respondent married Mr D. It then follows that I am satisfied that the marriage to Mr D was invalid and void.

2. Therefore, it has to be said that unless I can be satisfied on the balance of probabilities that Mr C had died prior to the 2012 marriage to the Applicant, I must accept that the valid marriage to Mr C subsisted at the time that the Applicant and Respondent married. It is of no determinative status in these proceedings that the Respondent may have honestly but erroneously considered that she was free to marry the Applicant. Accordingly, there is no point in me even trying to embark upon determining whether I accept the honesty of that assertion or not. Even if it was an honestly held erroneous belief, ignorance of the law in respect to the validity or subsistence of a previous marriage does not make valid a marriage that is void because of the subsistence of a prior valid marriage.

3. The Applicant went as far as exhibiting to his affidavit filed 20 February 2020, a copy of a document said to be an affidavit sworn to by Mr N on 19 February 2020. Mr P deposed to being “the messenger of” Mr F, the Philippines lawyer engaged by the Applicant. He also deposed to having seen Mr C “well and alive” when he “went to their residence sometime in October 17, 2019”. He does not go into any detail as to how he knew that was Mr C’s residence or as to how he confirmed that it was Mr C that he saw.

4. As the Respondent said in an affidavit in response, that is nothing more than the Applicant reporting that someone told him they saw Mr C alive in 2019. However, that evidence clearly put the Respondent on notice that the Applicant asserts that Mr C was alive in 2012 when he and the Respondent married. It appears from the evidence that Certificates of Death are able to be obtained from the Office of the Civil Registrar General, part of the Philippines Statistics Authority. Should Mr C have died before 19 December 2012, it is likely, I am satisfied, that his death would be recorded in the Philippines Civil Register and that evidence of that would be readily obtainable. The Respondent, though legally represented by a solicitor who has engaged with Philippines lawyers in this matter, did not adduce any evidence of a Death Certificate of Mr C.

5. I am reasonably satisfied, particularly in the absence of evidence of the death of Mr C prior to 19 December 2012, or at all, that he was alive on 19 December 2012, and that, as such, the marriage between Mr C and the Respondent, that I accept was a valid marriage, still subsisted as at that date. Accordingly, I am left with no option but to determine that the marriage said to have been solemnised in Brisbane on 19 December 2012 between the Applicant and the Respondent was void and to declare it a nullity. That I will do.

One Final Matter

1. Somewhat concerned about why the Applicant, an elderly Australian man who had been married a number of times before, was determined to have his marriage to the Respondent declared a nullity rather than simply seeking to have it dissolved by the Court, I asked the Applicant some questions about his reasons at the hearing of his application. It became clear very quickly that he is motivated by ill feeling towards the Respondent (to put it mildly) for having come to Australia to marry him only to leave him sometime not long thereafter. He plainly rejected her claims that he was intolerably controlling and abusive of her to the extent that she could not tolerate remaining in a relationship with him. The Applicant made no secret of the fact that it was his desire that any right the Respondent has to continue to reside in Australia based on the fact of her marriage to him should be terminated as quickly as possible and that she be deported back to the Philippines.

2. Indeed, there was evidence before me that the Respondent has been charged with an offence against s 360 of the Criminal Code1899 (Qld) (“the Code”) on the complaint to Queensland Police made by the Applicant. That section of the Code makes it an offence for any person who is married to go through the form of marriage with another person during the life of his or her wife or husband with liability to imprisonment for seven years. It is the section that provides for the offence of bigamy in Queensland.

3. The Court was informed that those criminal proceedings were proceeding to a hearing in the Magistrates Court on … 2020. The Applicant told the Court that he would not withdraw the criminal complaint. He clearly did not care if the Respondent is convicted of that offence and is sentenced to a term of imprisonment. The Respondent’s solicitor informed the Court that a barrister had been retained to appear for the Respondent in those proceedings and that a submission was being prepared to put to the Office of the Director of Public Prosecutions, Queensland in support of a position that there was no public interest in prosecuting the Respondent for this offence.

4. At the end of the hearing before me, I reserved my judgment and directed the Respondent’s solicitor to inform me of the outcome of the criminal proceedings in the Magistrates Court. The Court subsequently received notice that the Magistrates Court had adjourned those proceedings for a further three months and the solicitor for the Respondent advised that the barrister was now preparing the submission to the Office of the Director of Public Prosecutions, Queensland. In those circumstances, I determined to deliver this Judgment with there being no point in delaying doing so any longer.

5. However, when I read s 360 of the Code, I noted with particular interest that it also makes it an offence for a person to go through the form of marriage with any person whom he or she knows to be married. Significantly, in this case, whilst the Respondent has been charged under the section, the Applicant who made the complaint against the Respondent has not been charged at the same time with that offence. I am not aware of the reasons why he has not.

6. Before me, the evidence of the Respondent was to the effect that the Applicant knew that she had been married before when they married and that he told her to say in the declaration that she signed at the time that she had never been validly married and she just did what she was told.  However, that is not something that the Applicant admitted and I did not need to make findings of fact about that in order to determine the application for nullity that was before me. Nevertheless, in his evidence and submissions to the Court, the Applicant did go as far as saying that he was aware that the Respondent had been married before in the Philippines and that she had told him that divorce was not available in the Philippines to end a marriage. He told this Court that the Respondent had told him that she understood she was free to marry as she had been separated from her former husbands for years and had not seen or heard from them. On that evidence, at the time, the Applicant apparently accepted that.

7. That the Applicant apparently accepted this and was not motivated to undertake further inquiry of his own in the Philippines to determine the actual legal position, as he has done since the breakdown of their relationship, convinces me, at least, that he was indifferent, if not recklessly indifferent to the real state of affairs, even if he did not actually know the truth of the matter. Given that I did not have any cross-examination of the parties in the hearing before me it would not be appropriate for me to make findings of fact on these contested matters. I was also conscious of the fact that the Respondent still faced the criminal proceedings and did not wish to trespass unnecessarily into factual areas the province of the Court trying the Respondent on the criminal charge. As I have already said, the application in this Court could be determined without the need to make such findings in any event as they would not have made any difference to the outcome of the application for nullity.   

47.I feel compelled to say though, given the number of cases I have seen over thirty years of specialisation in family law in Brisbane in which Filipino women who have been married before in the Philippines and subsequently come to Australia having married or to marry Australian men in which I have never heard of or seen evidence of formal legal annulments of their former marriages, I consider it rather likely that there may indeed be very many marriages between Australian men and Filipino women that, like this one, might not actually be valid because former marriages in the Philippines have not been annulled or ended by the death of the former spouse in that country.

1. In this particular case, it is my view, as I told the Applicant at the hearing, regrettable that the Applicant, motivated by malice toward the Respondent, chose to pursue the nullity path as opposed to the dissolution path and also chose to make a criminal complaint against the Respondent. Frankly, I fail to see the public interest in a prosecution of the Respondent for the offence of bigamy in all the circumstances of this case. I am quite content that a copy of these Reasons for Judgment be included in any submission being made to the Office of the Director of Public Prosecutions, Queensland in support of a position advanced on behalf of the Respondent that prosecution of the Respondent is not in the public interest.

2. I consider that the provision of these Reasons for Judgment to the Office of the Director of Public Prosecutions, Queensland probably falls within the exception to the s 121 of the Family Law Act 1975 (Cth) prohibition on publication of any account of proceedings in this Court contained within s 121(9)(a) of the Family Law Act 1975 (Cth), but for completeness I will make an Order pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) permitting such provision on behalf of the Respondent, should her legal representatives consider that appropriate.

3. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 April 2020.

Associate:

Date:  17 April 2020