DALER & EHAN
[2014] FamCA 741
•9 September 2014
FAMILY COURT OF AUSTRALIA
| DALER & EHAN | [2014] FamCA 741 |
| FAMILY LAW – NULLITY – Where the applicant seeks a decree of nullity – Where the respondent wife was not able to remarry subject to the law of a foreign jurisdiction – Where the respondent was domiciled in a foreign jurisdiction – Where Jordanian divorce law mandates that a divorced wife must observe a three month waiting period. |
| Family Law Act 1975 (Cth) Marriage Act 1961 (Cth) Evidence Act 1995 (Cth) |
| Ah Yin v Christie (1907) 4 CLR 1428, 1431 |
| APPLICANT: | Mr Daler |
| RESPONDENT: | Ms Ehan |
| FILE NUMBER: | CAC | 1683 | of | 2012 |
| DATE DELIVERED: | 9 September 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 4 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Daler represented himself |
| COUNSEL FOR THE RESPONDENT: | Mr Bak |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini Dunn |
Orders
I pronounce, pursuant to s 51 of the Family Law Act 1975, that the marriage entered into between Mr Daler and Ms Ehan on … August 2012 at 2/12 C Street, Suburb D, ACT is void and I pronounce a decree of nullity in respect of that marriage.
Each party pay his or her own costs.
The matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daler & Ehan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1683 of 2012
| Mr Daler |
Applicant
And
| Ms Ehan |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant[1] in this matter seeks that a decree of nullity be issued in relation to his marriage to the respondent.
[1] It is customary in judgments of this sought to refer to the parties as “husband” and “wife”. In this matter where the primary issue is whether they are husband and wife it should not be thought that if those terms are used from time to time they are in any way pre judgmental of the issue. However, in the circumstances wherever possible I shall refer to the parties as the applicant when referring to Mr Daler, and the respondent when referring to Ms Ehan.
The applicant contends that at the time that a ceremony of marriage took place between him and the respondent, the respondent was still married to her previous husband.
The respondent asserts for her part that the form of divorce that she had gone through with her former husband at Suburb E, New South Wales was effective to bring her marriage to her former husband to an end such that she was free to marry the applicant when she did so.
During the course of the hearing it became apparent that most of the facts in relation to the issues between the parties were agreed or at least not contested and that the core of the dispute lay in whether the form of divorce entered into by the respondent would be effective under Australian law. It is clear that it was not a divorce in accordance with the ordinary provisions of the Family Law Act 1975. Any recognition of the divorce would depend upon a particular interpretation of s 104 (Overseas Decrees) of the Family Law Act 1975 in that that section provides for the recognition of a divorce “effected in accordance with the law of an overseas jurisdiction”.
It might be thought that s 104 was designed to deal with situations where parties obtained a divorce overseas but the wording of s 104(3) appears to be wide enough to encompass the situation where the nationality/citizenship/domicile/ordinary residence of a person coincides with a country, and the divorce would be valid in accordance with that country’s laws, then Australia (at least in terms of s 104) might recognise the divorce as valid.
It would seem anomalous that a procedure of divorce which would not be recognised as valid in this country in so far as it related to Australian citizens might nevertheless be recognised as valid for foreigners if the divorce had been “effected” in accordance with the law of the country from which they came.
Background
The Respondent, Ms Ehan, married her first husband, Mr A, in Jordan in July 2008 and came to Australia on a student visa in 2009.[2]
[2] Exhibit R1; Ms Ehan affidavit 20/11/2012 [5].
In July 2011 the respondent and her first husband attended upon the Imam at the Islamic Judicial Council seeking a divorce. The Imam requested that the couple reconsider the matter and said that he would grant a divorce providing that they wait one month.[3]
[3] Ms Ehan affidavit 20/11/2012 [6].
About a week later the respondent telephoned the Imam and requested that the divorce be granted immediately.[4] The Imam complied with the respondent’s request and a certificate of Islamic Divorce was issued by the Islamic Judicial Council on … July 2011.[5] This certificate was registered in Jordan on … September 2011.
[4] There seems to be some confusion about precisely when this telephone call occurred or perhaps when the original attendance occurred. See the competing versions in the affidavits of Mr A and of the respondent. However nothing in particular turns on that.
[5] Respondent affidavit of 20 November 2012 [6]; Respondent’s case summary.
On … August 2011, twenty two days after the Islamic divorce decree issued and twenty six days before it was registered the respondent married the applicant in Canberra and on … August 2011 the marriage was registered with the Office of Regulatory Services in the Australian Capital Territory.[6] The marriage celebrant was satisfied that the respondent was divorced.[7] On 21 May 2012 the parties separated.
[6] Applicant affidavit of 26 November 2012 – attachment A.
[7] Affidavit of BB 5 December 2012.
The matter has come before me on three separate occasions for final hearing. On the first occasion on 16 April 2013 the matter was adjourned to allow both parties to file further evidence. On the second occasion on 16 August 2013, the applicant, who was representing himself and appearing via telephone, either hung up the phone before the completion of the proceedings or was disconnected. On that occasion the matter was adjourned again to allow the applicant to file further evidence.
ORDERS SOUGHT
As set out in his Initiating Application filed 31 October 2012, the applicant sought the following orders:
1.Produce Annulment Marriage Certificate.
2.Provide punishment to respondent according her deception action for marrying two people in the same time.
3.Seeking from the Court to produce a decision to let the other party incur all financial losses to the first party (me).
4.Produce a decision to cancel any sponsorship for the second party ([Ms Ehan]) I did according to her deception action in front of Immigration Department and to provide a compensation. The reason of that because her action’s were full of hassaling and damaging to me in front of all my friends, colleagues and my family.
5.Taking (an) action against the respondent according to her declaration in front of people that she admitted that she married me to obtain documents and citizenship (damage and remedy to the first party ([Mr Daler]) please see two statutory declarations from two people.[8]
[8] The fifth order sought was listed under the form’s heading ‘Interim or procedural orders sought’, but with continuous numbering.
During the course of the trial I explained to the applicant that this Court did not have any power to make orders awarding compensation. This was accepted by the applicant and he confirmed that the order he was seeking from the Court was a decree of nullity in relation to his marriage to the respondent.
The applicant relied upon the following documents:
1.Applicant’s affidavit filed 2 July 2014;
2.Affidavits of Ms F filed 20 January 2014 and 30 January 2014; and
3.Affidavit of Mr G filed 30 January 2014.
In addition to the affidavits listed above, the applicant also sought to rely upon exhibits which had been tendered into evidence when the matter was previously before me. In particular:
1.Exhibit A1 – a translated copy of ‘Provisional Law No (36) for the year 2010’ from the Official Gazette;
2.Exhibit A2 – an ‘Islamic Testimony’ dated 2 November 2012 from the Lebanese Moslem Association;
3.Exhibit A4 – A translated copy of a letter from the Department of the Supreme Judge dated 27 June 2013; and
4.Exhibit A5 – A translated copy of a letter from the Office of Al-WEFAQ Law Firm dated 23 June 2013.
The applicant had filed several other affidavits in these proceedings but he did not seek to rely upon them at the hearing.
As set out in her Response filed on 5 December 2012 the respondent sought the following:
1.That the Initiating Application filed 31 October 2012 be dismissed.
2.That the Respondent pay the Applicant’s costs of and incidental to the Application including but not limited to the cost of the filing fee for the Response.
The respondent relied upon the following documents:
1.Respondent’s affidavits filed 20 November 2012 and 15 August 2013;
2.Affidavit of Ms H filed 17 January 2014;
3.Affidavit of Mr J filed 17 January 2014; and
4.Affidavit of Mr A filed 3 February 2014.
Applicable Legislation
‘Divorce’ is defined in s 4 of the Family Law Act 1975 to mean ‘the termination of a marriage otherwise than by the death of a party to the marriage.’
Section 51 of the Family Law Act 1975 provides:
51.An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B of the Marriage Act 1961 provides the grounds on which a marriage is void:
23.B 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; …
The respondent’s first marriage was entered into in Jordan. The divorce was carried out in Australia. As previously mentioned, it is therefore necessary to consider whether s 104 of the Family Law Act 1975 might in its crystallising of Australia’s obligations under the Hague Convention on Recognition of Divorces and Legal Separations have application. For this reason I set out relevant parts of that section.
(1)In this section:
"applicant", in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means:
(a)the party at whose instance the divorce, annulment or legal separation was effected; or
(b)where the divorce, annulment or legal separation was effected at the instance of both the parties – each of the parties.
"marriage" includes a purported marriage that is void.
"relevant date" , in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means the date of the institution of the proceedings that resulted in the divorce, annulment or legal separation.
"respondent" , in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means a party to the marriage, not being a party at whose instance the divorce, annulment or legal separation was effected.
(2)For the purposes of this section, a person who is a national of a country of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction.
(3)A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognized as valid in Australia where[9]:
[9] Emphasis added.
(a)the respondent was ordinarily resident in the overseas jurisdiction at the relevant date;
(b)the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either:
(i)the respondent was ordinarily resident in the overseas jurisdiction at the relevant date; or
(ii)the last place of cohabitation of the parties to the marriage was in that jurisdiction;
(c)the applicant or the respondent or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date[10];
[10] Emphasis added.
(d)the respondent was a national of the overseas jurisdiction at the relevant date[11];
[11] Emphasis added.
(e)the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either:
(i)the applicant or that applicant, as the case may be, was ordinarily resident in that jurisdiction at that date[12]; or
[12] Emphasis added.
(ii)the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or
(f)[Appears to be not applicable.]
(4)A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall not be recognized as valid by virtue of subsection (3) where:
(a)under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or
(b)recognition would manifestly be contrary to public policy.
(5)Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognized as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognized as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions.
(6)[Appears to be not applicable.]
(7)For the purposes of this section, a court in Australia, in considering the validity of a divorce or an annulment of a marriage, or a legal separation of the parties to a marriage, effected under a law of an overseas jurisdiction[13]:
[13] Emphasis added. It should be noted that there is a difference between the wording in this section and s 104(3) above.
(a)where the respondent appeared in the proceedings for the divorce, annulment or separation:
(i)is bound by the findings of fact on the basis of which a court of the overseas jurisdiction assumed jurisdiction to grant the divorce, annulment or separation; and
(ii)may treat as proved any other facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction; or
(b)where the respondent did not appear in the proceedings for the divorce, annulment or separation--may treat as proved any facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction.
(8)[Appears to be not applicable.]
(9)[Appears to be not applicable.]
(10)[Appears to be not applicable.]
Expert Evidence
Both parties relied upon the evidence of lawyers who were either presently practising, or who had practised, law in Jordan.
Under s 79 of the Evidence Act 1995 (Cth) opinion evidence will be admissible where a person has specialised knowledge based upon their training, study or experience, and the opinion is based ‘wholly or substantially’ on that specialised knowledge.
The expertise of Ms F, who gave evidence on behalf of the applicant, and of Mr L, who gave evidence on behalf of the respondent was not contested by either party in final submissions. The respondent’s counsel did raise objections to Ms F’s affidavit evidence, and the extent to which her expertise was adequately established therein. During the course of proceedings, both witnesses were available for cross-examination and I extended some leeway, in the circumstances of the case, to allow both Ms F and Mr L to give evidence, and allowed counsel an opportunity to cross-examine the witness on their expertise if they wished to bring it into issue.
Both the applicant and the respondent questioned the respective experts on their qualifications during cross-examination. Ms F and Mr L gave evidence that they have experience practising law in Jordan, and I find that both possessed the requisite specialised knowledge to give an opinion based on that knowledge.
It was submitted on behalf of the respondent that the evidence of Mr L should be preferred to that of Ms F, however ultimately the evidence of both witnesses was consistent as to the main point in issue – that being that under Jordanian law the wife must observe a three month waiting period after her divorce before she is able to remarry.
I accept the evidence of both Ms F and Mr L on this point.
Both witnesses, and also Mr M, the Imam at the N Islamic Centre, were questioned about the circumstances of a ‘Khule’ divorce and the applicable waiting period under Sharia law. As s 104 relates only to a divorce effected under the laws of an overseas jurisdiction, it is only a divorce effected under the laws of Jordan that this Court can recognise. Sharia law, is not therefore, relevant to the present application.
What is a divorce?
Before embarking on a consideration of whether the provisions of s 104 of the Family Law Act are such as to require Australian courts to acknowledge that the divorce entered into in Suburb E was sufficient to bring about the end of the marriage of Ms Ehan and Mr A it is necessary to consider what is a ‘divorce’ within the meaning of s 104.
There seems little doubt since Anderson & McIntosh[14] that there is a distinction under the Family Law Act between ‘divorce’ and ‘divorce order’. The latter relates to a divorce obtained pursuant to the provisions of the Family Law Act. Although that decision of the Full Court in Anderson gives a detailed consideration to the (already detailed) consideration of the Trial Judge about the use of the term ‘divorce order’ in s 44(3) of the Family Law Act, it provides no direct guidance about the determination of whether ‘divorce’, as that term is used in s 104, means the end of a marriage coupled with a freedom to remarry.
[14] [2013] Fam CAFC200
Under English law, divorce (to the extent that it existed) was originally the province of the ecclesiastical courts and in the 16th and 17th centuries a divorce “a mensa et thoro” did not render the petitioner free to remarry. Such divorces were granted on certain grounds including adultery, cruelty and certain unnatural offences.[15]
[15] Australian Divorce Law and Practice Toose, Watson & Bengafield 1968 historical introduction xcv.
At that time a person wishing to obtain a divorce a vinculo matrimonii to render him or her free and legally competent to remarry, it may have then been necessary to obtain an Act of Parliament.
This distinction was to some extent then carried forward into Australian law when originally in the States and subsequently in the Commonwealth (when the Matrimonial Causes Act was introduced in 1956) there was a Decree of Judicial Separation which for all practical purposes was the same as a divorce a mensa et thoro.
A decree of divorce, as it was then known, was more properly a divorce a vinculo matrimonii. However, that decree was initially made as a decree nisi and a person was only free to remarry after a waiting period when the decree became absolute. Before the decree became absolute the decree nisi might be revoked.
To some extent the same situation is reflected in the present legislation where upon the hearing of an application for a divorce, an order might be made which becomes final at the expiration of one month from the making of the order (s 55).
So far as I am able to determine there has been no definitive decision about whether a ‘divorce’ as that term is used in s 104 of the Family Law Act 1975 is intended to deal with what used to be referred to as decree nisi or a decree absolute.
On balance, it seems to me that it is more appropriate than not that I should regard freedom to remarry as being the ultimate consequence of divorce and in those circumstances in my opinion where the word ‘divorce’ is used in the Family Law Act and in particular in s 104, it means the termination of a previous marriage with a freedom to remarry.[16]
[16] It is to be noted that the Family Law Act did not include provisions for a Decree of Judicial Separation or a divorce a mensa et thoro.
Applying that determination therefore to the situation in relation to Ms Ehan and Mr A, the only basis upon which under s 104 the ‘divorce’ could be effected in accordance with the laws of the ‘foreign jurisdiction’ is if any relevant impediment to the remarriage of Ms Ehan was completed prior to her marriage to the current applicant, Mr Daler.
As set out above her remarriage occurred some twenty two days after the decree by the Imam in Suburb E. And therefore if as is set out below, there was either under Sharia law or under Jordanian law (if the two be different) a waiting period before a remarriage could occur which was longer than twenty two days then there was no divorce which might properly be recognised by Australian law under s 104.
Each of the parties after some encouragement from me called expert evidence about the law of Jordan about divorce.
In the course of the proceedings I received various forms of submissions which incorporated statements from the experts about what Sharia law was and the purpose of and the time and duration of any waiting period after a decree of divorce.
It sufficies to say that I am satisfied on the evidence of the two experts that in accordance with Jordanian law, whatever Sharia law may have dictated, and to whatever extent Jordanian law is or has or is supposed to have incorporated Sharia law, the waiting period for a divorce in accordance with Jordanian law if the divorce decree is presented by a woman (Khule) is three months.
Accordingly, irrespective of whether or not Sharia law requires a three month waiting period or the expiration of a certain number of menstrual cycles, the requisite waiting period under Jordanian law was not complied with before the remarriage of Ms Ehan to Mr Daler.
Section 104 – Does the divorce have to happen in a foreign country?
Because of the decision that I have just reached in relation to the nature of what constitutes divorce, it is unnecessary for me to consider whether the provision of s 104 should have the attenuated meaning that would require Australian law to recognise a divorce carried out in Australia which would be said to be ‘effected in accordance with the laws of [Jordan]’.
It seems incongruous that there should be a provision in an Australian Act that if a ceremony conducted in Australia would not be recognised as a divorce but would be recognised in a foreign country but in some way this would therefore bind Australian courts to accept that divorce was valid for the purposes of Australian law.
It is unnecessary for me to expand further upon this proposition in the light of the decision I have previously taken but it seems to me that some clarification is required as to whether it is intended to deal with a situation where persons obtain a divorce in a foreign country and then seek its recognition in Australia or whether, as in this case, a ceremony conducted in Australia might be regarded and accepted as being in accordance with the laws of a foreign country. I accept that the provisions of s 104 reflect in part the provisions previously enacted in the Matrimonial Causes Act in s 95 (or bear a close resemblance thereto). Nevertheless some consideration should be given to precisely what it is that Parliament intends in relation to these matters. I draw some support for my conclusion that s 104 relates to divorces obtained overseas (as opposed to in Australia) from the internal heading ‘overseas decrees’.
Can the Respondent’s Divorce be Recognised by this Court in any event?
For the purposes of determining which subsection applies it is necessary to establish whether the respondent and her first husband were both applicants, or whether one of them was a respondent in the divorce.
While the evidence is somewhat confused I find that the parties both applied for the divorce and both could properly be regarded as applicants.
The respondent’s counsel submits that the divorce that occurred was a Khule divorce. At [8] of the affidavit of Mr L, a lawyer qualified to practice law in Jordan, filed 17 January 2014, it is explained that a Khule is a divorce where the wife initiates and insists on the separation. It is also noted at [11] of the same affidavit that ‘the Imam will not sign the Divorce until the husband utters the word ‘Divorce’.’ In addition, attached to the respondent’s affidavit of 15 August 2013 is a hand-written statutory declaration made by the respondent’s first husband, in which, at [5] it is stated that the respondent’s husband agreed to the divorce.
In this matter, as neither the respondent, nor her first husband had permanent residency in Australia,[17] they could not have formed an intention to settle in Australia such as would enable them to be domiciled in Australia.[18]
[17] Respondent affidavit filed 15 August 2013 [9]; exhibit R1.
[18] Ah Yin v Christie (1907) 4 CLR 1428, 1431
As neither Mr A nor Ms Ehan could obtain a domicile of choice in Australia (relevantly at least) Ms Ehan’s domicile of origin – Jordan had not been displaced and s 104(3)(c) would therefore apply.
I am unable to make any finding about Mr A.
Conclusion
In summary therefore unless the respondent was validly divorced at the time of her marriage to Mr Daler, the applicant Mr Daler, is entitled to have a decree of nullity.
For her to be validly married to Mr Daler it was necessary for the respondent to have been divorced either in accordance with the law of Australia or in accordance with a foreign decree as recognised in accordance with s 104 of the Family Law Act 1975.
This involves a consideration as to what constitutes a divorce and whether a divorce involves necessarily for these purposes a freedom to remarry. I have determined that the use of the word ‘divorce’ in s 104 of the Family Law Act 1975 necessarily imports the concept that a person is free to remarry.
There can be no doubt that the form of divorce entered into by Ms Ehan and Mr A was not in accordance with the ordinary provisions of the Family Law Act and would not in itself be recognised as valid under Australian law.
The only issue really was whether in accordance with the provisions of s 104 this Court should recognise that the divorce which physically took place in Suburb E, New South Wales, might be recognised as being in accordance with the law of Jordan.
I am satisfied that the law of Jordan required a three month waiting period after the pronouncement of the ‘decree’ before a person was free to remarry. This was the joint evidence of the experts in this matter.
Accordingly, even if I were to find, for reasons set out hereafter, that a divorce conducted in Australia might be recognised as valid as being ‘in accordance with the laws of [Jordan]’ this must mean (on my findings) that such a divorce would need to be of a kind that would enable the applicant (the respondent in these proceedings) to remarry. That was not so and she could not do so in accordance with the law of Jordan.
Further, in my opinion it is at least more likely than not that the intention of the legislature was that s 104 would relate to proceedings which were conducted overseas and the context in which the section is framed and the internal parts of the sections references to habitual residence, nationality and the like would support this suggestion that the section is at least more appropriately directed to ceremonies which occur in a foreign country rather than in Australia itself. While it is not strictly necessary for the purposes of this decision if I were called upon to do so I would find that s 104 should be confined to ceremonies which occur overseas.
If however my determination about what constitutes divorce is wrong and if contrary to the view just expressed the divorce conducted in Australia can be said to be ‘in accordance with the laws [of a foreign country]’ then a consideration about whether Ms Ehan and Mr A fell within the qualifying provisions under s 104 would lead to the conclusion that they might have the benefit of the section because they were domiciled still in Jordan but not for any other reason. They were domiciled in Jordan because they could not form the requisite intent to change their domicile to Australia (irrespective of whether that was what they wanted to do).
Accordingly, in my opinion at the time that Ms Ehan entered into a form of marriage with Mr Daler she was not effectively divorced from Mr A and accordingly Mr Daler as applicant is entitled to a decree of nullity and such a decree will now issue.
Costs
There is an implicit application by Mr Daler for costs.
First during these proceedings Mr Daler represented himself and his representation of himself in some respects created a prolonging of the proceedings including additional costs to the respondent.
Although in the end I have made a determination which is favourable to his application, the issue as appears from the preceding judgment was not without complications. I have no idea what compensation Mr Daler had in mind. There is no evidence that would support such an application. In addition, and more importantly, it is not within my power to make an order for compensation. The most I could order would be reimbursement of appropriate fees or other such outlays.
In the circumstances of this matter, the primary provisions under s 117 ought in my opinion to apply and each party should bear his or her own costs.
I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 9 September 2014.
Associate:
Date:
0