DAMAS & ALAVI

[2020] FamCA 459

FAMILY COURT OF AUSTRALIA

DAMAS & ALAVI [2020] FamCA 459

FAMILY LAW – NULLITY – Application for declaration – Where at the time of the marriage the applicant was married to another person – Declaration of nullity made

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B(1)

APPLICANT: Ms Damas

RESPONDENT: Mr Alavi

FILE NUMBER: PAC 485 of 2020

DATE DELIVERED: 2 June 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 2 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Oncu

RESPONDENT –

SELF-RERESENTED LITIGANT:

In person by telephone

Orders

1. That it be declared that the marriage between the applicant Ms Damas and the respondent Mr Alavi conducted at Suburb B in the state of New South Wales on … 2018 is a nullity.

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 Damas & Alavi 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 PARRAMATTA

FILE NUMBER: PAC 485  of 2020

Ms Damas

Applicant

And

Mr Alavi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant seeks a declaration that the marriage ceremony entered into between her and the respondent at Suburb B in the State of New South Wales on … 2018 is invalid on the grounds that the applicant was already married at the time.

2. On 16 April 2020 the matter came before a registrar of this Court.  The applicant was legally represented and the respondent appeared self-represented by phone from Country C.  It was noted by the Registrar that the husband consented to the nullity application and that the parties intended to re-marry after the declaration of nullity had been granted.  The registrar directed the respondent to file an affidavit and Notice of Address for Service.

3. On 3 February 2020 the respondent filed an affidavit which, inter alia, agreed with the applicant’s evidence and confirmed that he wished for the declaration of nullity to be granted so that they could be re-married in a legally valid marriage.

4. On 2 June 2020 the matter came before the Court. There was no appearance by or on behalf of the respondent.

Background

1. The applicant married Mr F (“the first husband”) at D Region, E City, Country G on … 2000: Marriage Certificate annexed to Affidavit of the Applicant filed 3 February 2020.  They separated on 5 July 2006.

2. The applicant and respondent married in Suburb B in the State of New South Wales in 2018: Marriage Certificate annexed to the Affidavit of the Applicant filed 3 February 2020.

3. Before the marriage between the applicant and respondent, the applicant asserts that her first husband informed her that he obtained a divorce in 2017 but had lost the marriage certificate.

4. At the time of marriage between the applicant and respondent, the applicant asserted on the marriage certificate that she had never been validly married. Such a representation was blatantly false, however, the applicant says she raised this with the marriage celebrant who said it would not be a problem.

5. After the marriage between the applicant and respondent, the applicant’s first husband contacted the applicant in August 2019 and indicated that he was getting married and needed a divorce from the applicant. The applicant informed the first husband that he had previously told her that he had obtained a divorce.  The first husband denied saying this.

6. On 24 December 2019, the applicant filed an Application for Divorce from her first husband in file no. …/2019.  The divorce was determined in 2020

7. On 3 February 2020, the applicant filed the present Initiating Application and supporting affidavit seeking that her marriage to the respondent be declared null and void.

8. The applicant and respondent have both confirmed they wish to marry again once the nullity is granted.

Applicable Law

1. Pursuant to s 51 of the Family Law Act 1975 (Cth) a decree of nullity may be granted on the ground that the marriage is void.

2. Section 23B (1) of the Marriage Act 1961 (Cth) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

3. For the reasons given above, the applicant is entitled to the relief sought by her.

4. A declaration will be made that the marriage between the applicant and the respondent conducted in Suburb B in the state of New South Wales is a nullity.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 June 2020.

Associate: 

Date:  3 June 2020