DAVIES & NWOSU

[2014] FamCA 487

FAMILY COURT OF AUSTRALIA

DAVIES & NWOSU [2014] FamCA 487

FAMILY LAW – NULLITY – Where the applicant alleges that at the time of the marriage the respondent was lawfully married to another person – Application granted

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

APPLICANT: Mr Davies

RESPONDENT: Ms Nwosu

FILE NUMBER: HBC 263 of 2014

DATE DELIVERED: 23 May 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 23 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT: Murdoch Clarke

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. IT IS NOTED that:

   a.The application of Mr Davies for nullity of marriage on the ground that at the time of his marriage the Respondent, Ms Nwosu (also known as …), was lawfully married to another person was heard this day; and

   b.The Court was satisfied that the Applicant, Mr Davies, was ordinarily resident in Australia.

2. THE COURT DECLARES THAT the marriage solemnised on … April 2013 at Hobart in the State of Tasmania between MR DAVIES and Ms NWOSU (also known as …) to be absolutely null and void.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davies & Nwosu 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 HOBART

FILE NUMBER: HBC 263 of 2013

Mr Davies

Applicant

And

Ms Nwosu

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Davies (“the applicant”), seeking a declaration of nullity of his marriage to Ms Nwosu (“the respondent”).  The application relates to a marriage entered into on … April 2013.

2. The basis of the application is that the respondent was on … April 2013 lawfully married to another person.

3. These proceedings were commenced by an application filed 10 April 2014 and was heard by me on 23 May 2014.  The application is supported by a number of documents, the first being the application itself, the second being the affidavit of the applicant filed the same day.  In addition, there were two documents filed on behalf of the respondent, namely, a notice of address for service and consent to abridgement of time.  In addition, there was tendered and relied upon an acknowledgment of service of the application.  That acknowledgment of service was filed 19 May 2014 in which the respondent acknowledged she had received the documents on 14 May 2014.

4. Finally, there was a letter from the Country M lawyers for the respondent dated 20 May 2014 which was tendered in evidence.  That letter indicated that those lawyers continue to act for the respondent and that she did not oppose the orders being sought in the application and that the letter should be made available to the Court.

5. The evidence of the applicant was that he and the respondent married in Hobart on … April 2013 in a marriage performed at an Anglican church.  The application annexed a copy of the marriage certificate and deposed that it was true.  He further deposed that some time after the marriage he was contacted by a person who said that the respondent was married.  The respondent did not dispute that earlier fact, but said she believed that that marriage was dissolved by an order made in Country M.  The respondent had married her husband in Country A on … February 1999 and had believed that it had been either annulled or dissolved.  Annexed to the applicant’s affidavit was a further letter from the lawyers for the respondent which was translated into English.

6. The Courts power to declare a marriage void is contained in s 51 of the Family Law Act 1975 (Cth) (“the Act”). That section provides:-

   An application under this Act for a decree of nullity of marriage shall be based on the grounds that the marriage is void.

7. Marriage is solemnised in Australia, and is done so pursuant to the Marriage Act 1961 (Cth) (“the Marriage Act”). Section 23 of the Marriage Act provides grounds on which a marriage is void. Section 23B of the Marriage Act provides:

   (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.

8. In this case it is clear that the respondent was married to some other person as at … April 2013 and I find that the ground is made out.  I am also satisfied that the applicant resides in Australia, in the State of Tasmania.  Given that the grant of a decree of nullity is not discretionary, I pronounce the decree absolute of nullity of marriage in the usual form. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 May 2014.

Associate:     

Date:              23 May 2014