Dayal & Dayal
[2021] FedCFamC1F 85
•1 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1
Dayal & Dayal [2021] FedCFamC1F 85
File number(s): PAC 462 of 2021 Judgment of: HANNAM J Date of judgment: 1 October 2021 Catchwords: FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the respondent wife was still married to another party at the time of the subject marriage – Declaration of nullity made. Legislation: Family Law Act 1975 (Cth) ss 51
Marriage Act 1961 (Cth) ss 23B
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 10 September 2021 Place: Sydney Solicitor for the Applicant: Pannu Lawyers Solicitor for the Respondent: No appearance by or on behalf of the Respondent ORDERS
PAC 462 of 2021 BETWEEN: MR DAYAL
Applicant
AND: MS DAYAL
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.By virtue of section 51 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth), the marriage solemnised between Ms Dayal and Mr Dayal in 2008 is declared null and void.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 pseudonyms Dayal & Dayal is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION & BACKGROUND
An applicant husband (“the applicant”) seeks a decree of nullity for his marriage to the respondent wife (“the respondent”) solemnised in 2008.
Both parties were born overseas and moved to live in Australia at some later stage.
The applicant was married once before his relationship with the respondent, but that marriage ended and a divorce granted in late 2006.
The respondent was also previously married to a Mr X (“the respondent’s first husband”), in a ceremony that took place outside of Australia in early 2007.
In 2008 the parties began a relationship and went through a marriage ceremony in the same year in Sydney. On their Marriage Certificate the respondent indicated her conjugal status as “divorced” though she was not divorced and remained married to her first husband.
In July 2012 the parties separated on a final basis.
In around June 2018 the applicant sought a divorce from the respondent and in the course of filing his divorce application at the registry learnt from court staff that the respondent’s divorce from her first husband had only been finalised in June 2012.
On 2 February 2021 the applicant initiated these proceedings seeking that his marriage to the respondent be declared null and void on the ground that at the time of their marriage the respondent was lawfully married to some other person. The respondent indicated in her Response filed 3 June 2021 that she consents to the nullity application.
The application was heard before me on 13 September 2021 via an audio/video link. On that day the applicant was represented but there was no appearance by or on behalf of the respondent. Given the respondent’s non-appearance, the applicant sought that his application be dealt with on an undefended basis. As the respondent effectively disengaged from the proceedings having chosen not to participate in the hearing despite being notified of the hearing date, I was satisfied it was appropriate that the application be finalised and dealt with in the respondent’s absence. The respondent’s affidavit filed in support of her Response is not read for the purposes of final judgment.
In addition to his affidavit, the applicant also tendered many documents from the court file relating the respondent’s divorce from her first husband with the exception of the Marriage Certificate filed in those proceedings. The applicant’s legal representative had not been given leave to photocopy this document. Although arrangements were then made to have that Marriage Certificate extracted and photocopied by my associate to be marked as an Exhibit for the purposes of these proceedings, some issues arose in obtaining the relevant court file as a result of restrictions associated with the COVID-19 pandemic.
Ultimately, the respondent’s Marriage Certificate with her first husband was not obtained. I am satisfied however of the existence of the respondent’s marriage to her first husband in circumstances where prior to granting the divorce between those parties in June 2012 a Registrar of the Federal Magistrate’s Court (as it was then known) found the marriage proved.
THE LAW
Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that an application for a decree of nullity of marriage “shall be based on the ground that the marriage is void”.
The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”), which provides, relevantly, as follows:
(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 is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e)either of the parties is not of marriageable age;
and not otherwise.
It is clear that at the time the respondent wife participated in the marriage ceremony with the applicant husband in 2008 she was lawfully married to another person. She had been validly married to her first husband and was at that stage not divorced.
Documents forming part of the respondent’s divorce file tendered by the applicant in these proceedings (Exhibit 1) indicate that the respondent did not separate from her first husband until mid-2010. Further evidence of a Divorce Order also adduced by the applicant indicates that the respondent’s divorce to her first husband only took effect in 2012, about three years from the date of her marriage to the applicant.
In circumstances where the respondent was already married to her first husband at the time of the marriage under consideration, and there being no suggestion that the applicant was aware of this circumstance at the time, the marriage is void and on that basis a decree of nullity is made.
Accordingly, a declaration will be made that the marriage between the applicant and respondent conducted in Sydney in 2008 is null and void.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 1 October 2021
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