DE SOYSA & FERRERA

[2013] FamCA 515

FAMILY COURT OF AUSTRALIA

DE SOYSA & FERRERA [2013] FamCA 515

FAMILY LAW – DIVORCE & NULLITY– Application for divorce initially made by wife in respect of her Australian marriage – Oral application later made by wife for a divorce of her Sri Lankan marriage and for her Australian purported marriage to be declared null and void – Whether the Sri Lankan marriage is valid – Whether allegedly incorrect information given by the husband at the time of the Sri Lankan marriage effects its validity – The nature of the ceremonies – Whether the Australian marriage can be declared a valid second marriage in accordance with s113 of the Marriage Act 1961 (Cth) – Application for divorce of Sri Lankan marriage granted – Satisfied as to special circumstances in respect of the parties’ minor child – Second marriage in Australia declared invalid

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

Kapadia & Kapadia (1991) FLC 92-245, (1991) 14 Fam LR 883

APPLICANT: Ms De Soysa

RESPONDENT: Mr Ferrera

FILE NUMBER: PAC 537 of 2013

DATE DELIVERED: 9 July 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 9 July 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That I find that the parties were legally married on … January 2002 in Sri Lanka. 

2. That I find that the parties separated on 7 October 2009 and have not lived together since that time.

3. That I am satisfied that there is no prospect of the parties resuming cohabitation.

4. That I am satisfied that there is one child of the parties’ marriage, K, who was born on … January 2003. That child resides with the mother. From the material available to me, the father spends no time with the child and does not communicate with the child. I understand the father makes no contribution to the living expenses of the child. I am therefore not satisfied that proper arrangements have been made for the welfare of the child, but I am satisfied that special circumstances exist pursuant to section 55 of the Family Law Act 1975 (Cth) whereby the decree nisi may become absolute.

5. That accordingly the decree nisi shall become absolute in one (1) month from today.

6. That in respect of the Australian marriage, for the reasons I have set out in my Judgment, I am satisfied that the marriage purportedly entered into between these parties at Suburb A in Queensland on … March 2002 is not a valid marriage.

7. That I discharge all outstanding applications and cross-applications.

8. That I remove all matters from the Active Pending Cases List.

IT IS NOTED that publication of this judgment by this Court under the pseudonym De Soysa & Ferrera 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 PARRAMATTA

FILE NUMBER: PAC 537 of 2013

Ms De Soysa

Applicant

And

Mr Ferrera

Respondent

REASONS FOR JUDGMENT

1. This is a complex and difficult matter.  The matter came before the Court when on 11 February 2013 the wife, who I will describe as Ms De Soysa, bought an Application for Divorce in respect of a marriage to Mr Ferrera, which was entered into in Suburb A, Queensland on … March 2002.  I have before me as an annexure to an affidavit of Ms De Soysa a marriage certificate in respect of that marriage.

2. However, prior to that marriage being entered into, the parties were married, and I use that expression advisedly, in Sri Lanka.  That marriage was entered into on … January 2002.  A translated certificate of that marriage is also before me.

3. In addition to the application for dissolution of marriage, to which I have referred, the wife has filed two Applications in a Case.  The first was filed on 6 May 2013, in which she seeks a declaration that that Australian marriage be declared null and void.  The second being an Application in a Case filed on 4 July 2013 seeks that the Sri Lankan marriage be declared null and void.

4. The wife has filed in support of her various applications an affidavit of 11 February 2013, an affidavit of 6 May 2013 and an affidavit of 4 July 2013.  The wife has brought those documents, that is applications and affidavits, to the attention of the husband by means of email.  Whilst no affidavits of service have been filed, I accept that service has been properly effected.

5. The difficulty I have is this:- there are two ceremonies of marriage. The wife has at relative times sought to have each of them declared null and void. If I am satisfied that the Sri Lankan marriage is a valid marriage then, unless the marriage solemnised in Australia can fall within the provisions of section 113 of the Marriage Act 1961 (Cth) (“the Marriage Act”), it is not a proper marriage. I have been able to obtain much assistance from a decision of Kay J, as he then was, in the case of Kapadia & Kapadia[1].  Section 113 of the Marriage Act deals with the capacity to have a second ceremony of marriage in Australia and, to my mind, if I find that the Sri Lankan marriage is a valid marriage, that is the way that I must look at and deal with the Australian marriage.

   [1] (1991) FLC 92-245, (1991) 14 Fam LR 883

6. I am satisfied that the marriage in Sri Lanka is a valid one.  The wife herself in her second affidavit, at which time she was seeking to have the Australian marriage declared invalid, makes reference to marriage.  She says, for example, at paragraph 6 “[Mr Ferrera] and I decided that we wanted to get married, and wanted to do so in Australia ... However, my family did not agree with me travelling to Australia with [Mr Ferrera] unless we were married, so we decided to get married in Sri Lanka for cultural reasons (in Sri Lanka we call this registering our marriage).”  In the next paragraph she goes on to say that “We were married” (her word) “in [Town B], Sri Lanka ...” and, as I have already said, the wife has annexed that marriage certificate, and an English translation of the certificate, to an affidavit of hers.

7. The certificate, on the face of it, is one that establishes a marriage that would be recognised in Australia.  It refers to the parties; the wife, of course, says the husband is misdescribed as to his marital status and his residential status, but to my mind, nothing of significance turns on that.  It evidences that the marriage was solemnised in the presence of a person, on the face of it, appropriate to do so, and on the face of it, on … January 2002.

8. I find that the marriage in Sri Lanka is, indeed, a valid one.

9. I say that notwithstanding the mother’s protestations in her affidavit of 4 July 2013, when she sought to have the Sri Lankan marriage declared void, that it was only a form of registration of intention to marry.  I reject that proposition.

10. The question then is:- What is the status of the Australian marriage?

11. Section 113 of the Marriage Act says this:-

    (1)      Except in accordance with this section:

    (a) persons who are already legally married to each other shall not, in Australia or under Part V [which deals with ceremonies overseas], go through a form or ceremony of marriage with each other; and

    (b)a person who is authorised by this Act to solemnise marriages shall not purport to solemnise a marriage in Australia or under Part V between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.

12. Subsection (2) is as follows:-

    (2)Where:

    (a)2 persons have gone through a form or ceremony of marriage with each other, whether before or after the commencement of this Act; and

    (b)there is a doubt:

    (i)whether those persons are legally married to each other; ...

    And I interpose here that, notwithstanding what the wife has said, I am not satisfied there was any doubt;

    (ii)where the form or ceremony of marriage took place outside Australia, whether the marriage would be recognised as valid by a court in Australia; or

    And I am satisfied that the marriage would be recognised in this country;

    (iii)whether their marriage could be proved in legal proceedings;

    those persons may, subject to [various conditions imposed by] this section, go through a form or ceremony of marriage with each other ...

13. Subsections (3) and (4) set out various conditions.  However, subsection (4A) says that “(a) marriage which takes place after the commencement of this subsection in pursuance of subsection (2) is not invalid by reason of any failure to comply with the requirements of subsection (3) or (4).”

14. Subsection (5) goes on to provide that:-

    (5)Nothing in this Act shall be taken to prevent 2 persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia where those persons have:

    (a)produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and

    (b)furnished to that person a statement in writing, signed by them and witnessed by that person, that:

    (i)they have previously gone through a form or ceremony of marriage with each other;

    (ii)they are the parties mentioned in the certificate of marriage produced with the statement; and

    (iii)they have no reason to believe that they are not legally married to each other or, if their marriage took place outside Australia, they have no reason to believe that it would not be recognised as valid in Australia. 

15. Subsection (5) therefore creates a number of conditions:- firstly, the ceremony of marriage to be undertaken is a religious marriage, which was not the case here.  Secondly, certain documentation had to be provided to the person solemnising the marriage, and I have no evidence before me that that was done.  Accordingly, and to my mind, the appropriate way of dealing with this conundrum is to, having found the Sri Lankan marriage to be a valid marriage, to dissolve that marriage and thereafter to deal with the Australian marriage by means of a declaration that that marriage was invalid.

16. So far as I am concerned, that would allow the parties, particularly the wife who is the moving party, freedom from, as it were, both situations whether they be valid marriages or not.

17. I am satisfied that this is not a case where I would find the appropriate remedy would be to proceed by way of nullity, but rather, as I say so far as the second marriage is concerned, by a declaration of invalidity.

18. Accordingly, the orders and findings that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 9 July 2013.

Associate:     

Date:              10 July 2013