Dinal & Tohim (No. 2) - [2009] FamCA 540

FAMILY COURT OF AUSTRALIA

DINAL & TOHIM (NO. 2)

[2009] FamCA 540

FAMILY LAW – DECLARATION – Validity of marriage

Family Law Act 1975 (Cth)

C v D (1979) FLC 90-636
Casim v Casim (1962) Probate Cases 224
Harsheft v Harsheft No. 1 (1953) Probate Cases 161
Kapadia (1991) FLC 92-245

APPLICANT:

Mr Dinal

RESPONDENT:

Ms Tohim

FILE NUMBER:

MLC 46 of 2009

DATE DELIVERED:

12 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

12 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P.A. Marchetti

SOLICITOR FOR THE APPLICANT:

Lampe Family Lawyers

THE RESPONDENT:

Litigant in person

Orders

IT IS DECLARED

That the marriage and marriage ceremony that took place at L, Australia on … March 2000 was not a valid marriage by virtue of the provisions of s 113 of the Marriage Act 1961 (Cth).

IT IS REQUESTED

That the Registrar of Births, Deaths and Marriages (Victoria) note the declaration herein and amend the records accordingly.
That pursuant to s 113 of the Family Law Act 1975 (Cth), IT IS DECLARED that the husband and the wife were divorced from each other in Egypt on 5 July 2008 and that such divorce is valid for all purposes of Australian law.
That the application for divorce filed by the husband on 5 January 2009 is dismissed.
That the application in a case filed by the husband on 12 May 2009 and the response of the wife thereto filed 2 June 2009 be otherwise dismissed.

AND THE COURT NOTES

A.That the file be otherwise returned to the Federal Magistrates Court of Australia for the completion of all extant proceedings between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Dinal & Tohim is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 46 of 2009

MR DINAL

Applicant

And

MS TOHIM

Respondent

REASONS FOR JUDGMENT

On 5 January 2009, the husband filed for divorce in the Federal Magistrates Court. Throughout these reasons, for my convenience, I will refer to Mr Dinal as the husband and Ms Tohim as the wife, notwithstanding there may be some confusion about the state of their conjugal relationship.
The husband's application was supported by an affirmation asserting that the facts were true. He made that affirmation in Cairo. His application asserted the date and place of marriage on his marriage certificate was L, Australia on … March 2000.
According to s 39 of the Family Law Act 1975 (Cth) (“the Act”), proceedings for a divorce may be instituted under the Act if at the date of the filing of the application either party to the marriage satisfied citizenship, domicile or residence requirements. Divorce or validity of marriage proceedings as defined by s 4 of the Act refers to proceedings between the parties to a marriage or by the parties to a marriage for a divorce order in relation to the marriage, but it also includes proceedings for a declaration as to the validity of a marriage.
What the husband did not say in his application for divorce was that he was married to the wife in Egypt on … November 1999 according to Egyptian and Islamic law. The explanation for this apparent conflict was that he was married again to the wife on the advice of her parents, who told both husband and wife that they needed to do so in order to formalise the marriage in Australia. In an affidavit filed on 12 May 2009, the husband said he assumed the wife's parents' advice was correct.
The process of marrying again, as followed by the husband and wife is not permitted by law in Australia. To compound the problem and to add to the confusion, the husband also did not mention in his application for divorce that he had already divorced the wife. According to an affidavit filed by the husband on 24 March 2009, a divorce in relation to the Egyptian marriage took place in Egypt according to Egyptian law on 5 July 2008.
Thus, I return to the starting point. To enable him to remarry, the husband by his application of 5 January 2009 sought to obtain a divorce of the Australian marriage.
On 12 March 2009, Sessional Registrar Harold referred the divorce application to the Registrar of the Federal Magistrates Court of Australia, who in turn put it before Federal Magistrate Bender, who in turn transferred the proceedings regarding the validity of the marriage to this Court.
In this Court, the husband filed an application on 12 May 2009 returnable on 18 May, seeking a declaration that the marriage in Australia conducted on … March 2000 was valid. On 18 May 2009, there was no appearance on behalf of the wife.
Eventually, because of problems of proof, the husband's application for declaration was adjourned to 2 June, upon which date the wife attended in person and opposed the husband's application.
The wife's position was a little difficult to follow, but she maintained that the Egyptian divorce had not been registered and therefore it was not valid. The logic behind that position was that there was information she had been told. She claimed that the divorce could not be finalised because she had not been returned her dowry entitlements. In addition, she argued about the question of the registration of the supposed divorce document according to Egyptian law. I adjourned the matter again until this morning to enable both parties to get their positions clear.
The application I am therefore dealing with is the husband's application filed on 12 May 2009. The wife filed a response to that application seeking that the divorce not be granted. The orders she seeks are that the various proceedings be adjourned to an Australian Islamic body.
The husband's application is made under s 113 of the Act, which provides that a court can grant a declaration as to the validity of a divorce as well as a declaration as to the validity of a marriage. Part (b) of the Matrimonial Causes definition in s 4 sets out all of those particular matters. That provision reads:
(b)      proceedings for a declaration as to the validity of:
(i)       a marriage; or
(ii)      a divorce; or
(iii)     the annulment of a marriage;
by decree or otherwise;…
Notwithstanding what his application said and still says, the husband now seeks two declarations. First, that the marriage that took place at L on … March 2000 was not a valid marriage, and secondly, that the divorce which occurred under Egyptian law on 5 July 2008 is a valid divorce for all purposes of Australian law.
The husband's evidence is that which I have already mentioned. In addition, he says the certificate attached to his affidavit of 5 January 2009, duly translated, is a declaration of divorce. He relied upon an affidavit by an Imam M who referred to the divorce certificate as having the effect of a religious divorce which would be recognised at law in Egypt because Egypt is an Islamic state.
When the wife attended on 2 June 2009, she maintained that the case should be referred to the Australian National Imams Council so that she could receive her Islamic rights. I indicated to her at the time that I was more concerned with the Australian issues rather than the Islamic issues.
She filed an affidavit in which she said she had received the declaration of divorce but it had not been registered. She claimed the imam to whom I have just referred did not have the authority to do so or say what he did. That position has not changed today.
Between the period between today and 2 June, the wife filed an affidavit by Sheikh S, whose evidence I have heard this morning and to whom I shall return in a moment. She also filed an affidavit by herself, which I have indicated that I will not be taking into account, having regard to the fact that none of the material is admissible.
The husband relied upon two new affidavits, both affirmed by people who described themselves as members of the Board of Imams. The wife says that they are not authorised to speak in respect of the issues to which they have referred, and that the only person who is an executive member of the board is Sheikh S, whose evidence I have heard this morning. Sheikh S confirmed the evidence set out in his affirmation and affidavit. What he has told me this morning is that for all intents and purposes, the divorce sought by the husband has been granted according to Islamic law. Ironically, the wife may not be able to remarry in Egypt and there are a number of steps that may have to be taken by the wife in what the sheikh has currently described as a revocable divorce.
Putting all that aside, however, the sheikh has made it very clear that from an Islamic point of view, as well as from an Egyptian law point of view, the husband is divorced.
I have allowed some latitude in respect of the sheikh giving evidence and for the wife to ask questions, but nothing that I have heard changes the position that the husband is divorced according to Egyptian law, which is recognised as an Islamic state. I turn then to the L marriage ceremony.
Section 113 of the Marriage Act 1961 (Cth) provides that persons who are already legally married to each other shall not in Australia go through a form or ceremony of marriage with each other except according to the specific provisions of the Act. Subsection (2) of s 113 sets out that where people have gone through a form or ceremony of marriage and there is a doubt whether those persons are legally married to each or where the ceremony of marriage took place outside of Australia and there is a question about whether it is recognised as valid by a court in Australia or where their marriage needs to be proved in legal proceedings, those people may go through the form of ceremony that people would otherwise go through as recognised under the Family Law Act and the Marriage Act.
It is not suggested that there was not a valid Egyptian marriage, quite to the contrary. In her response filed 2 June 2009, the wife sought that the divorce not be granted until the Council of Imams had ruled "based on the Islamic rights that we were married according to".
Also in her affidavit filed 2 June 2009, the wife acknowledged that same marriage by annexing a translation of the marriage certificate of 1999. There is therefore no doubt about the marriage, nor that it would be recognised as valid by an Australian court, nor that the marriage could be proved in legal proceedings. As such, the exceptions in s 113(2) of the Marriage Act do not apply. In addition, s 113(3) requires that even if one of the exceptions applied, a variety of steps would have to be followed, and in this case they have not.
Section 113(5) provides that:
Nothing in this Act shall be taken to prevent two persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia.
Whilst that may have been what occurred in this case at L in 2000, the certificate attached to the divorce application shows that the ceremony was conducted according to Australian law requirements rather than just a religious ceremony and that means that I cannot allow the parties to rely on subsection (5).
Importantly, the marriage certificate signed at L showed the parties as having a conjugal status that they had never validly married. Under those circumstances, there is no basis for the parties to go through that form of marriage or ceremony of marriage.
Division 2 of Part III of the Marriage Act deals with void marriages. Its provisions apply to all marriages solemnised in Australia, so in this case I am not dealing with the Egyptian marriage.
Section 23B sets out that a marriage to which Division 2 of Part III applies is void where either of the parties is at the time of the marriage lawfully married to some other person. That means other than the person to whom the person married under the void marriage.
Section 23B says that to be void, a marriage must fit within one of the stated grounds and not otherwise. Accordingly, s 23B does not apply here.
Apart from prohibiting parties who are already legally married to each other going through a marriage ceremony, s 113 of the Marriage Act does not indicate that to do so makes the marriage invalid. However, if parties are prohibited from going through a form of ceremony as described in s 113 and they do so, it must follow that the marriage so performed is not a valid one because it does not comply with the basic requirements of the Act.
Thus I declare that the marriage ceremony that took place in March at L, and notwithstanding its registration as a marriage, was not a valid marriage ceremony because the parties were lawfully married to each other in November 1999. I propose to direct that the Registrar of Births, Deaths and Marriages note the declaration and I request that the records be amended accordingly.
I then turn to the question of the divorce. I have already indicated the position of what the evidence is this morning. I am satisfied on the evidence that the husband was divorced from the wife in July 2008 in Egypt.
Section 104 of the Family Law Act is a particular provision that enables decrees from an overseas jurisdiction to be recognised in Australia. Specifically, the provision sets out that a divorce is to be recognised but it has specific requirements that the applicant and the respondent either be resident in that country. Those requirements also give consideration to domicile.
Having regard to the various sworn statements of the parties, none of those provisions apply here. Thus s 104 does not assist the husband. The husband said that he was a citizen of Australia, and one would therefore presume that he had all of the other requirements to enable him normally to apply under the Family Law Act for a divorce. Under those circumstances, s 104 does not apply to him.
The problem I then encounter is what might on one view be an apparent inconsistency between s 104 of the Act not recognising an overseas decree for divorce and the husband's now application for a declaration under s 113 of the Family Law Act that the decree be declared valid. Does the fact that the Islamic divorce is not so recognised under s 104 preclude the operation of s 113?
That question has been considered in two specific cases that I have been able to find. One is the case of C v D (1979) FLC 90-636, heard by Bell J. His Honour was determining the appropriate relief to be provided in a case where one of the parties to the marriage was a hermaphrodite. The proceedings before his Honour were pleaded in the alternative, firstly, for a declaration of validity of marriage and alternatively a decree of nullity. The ground sought to be relied on was a mistake as to the identity of the party, vitiating the consent being given. Bell J dismissed the declaration of validity of marriage but pronounced the decree of nullity. His Honour was satisfied that there was a mistake in the identity of the party and accordingly that created the basis for a void marriage.
Of interest is that in his Honour's judgment in dealing with the issue of whether it was appropriate to treat the matter as an application for declaration of validity rather than a decree of nullity, his Honour referred to an English decision of Harsheft v Harsheft No. 1 (1953) Probate Cases 161 and Casim v Casim (1962) Probate Cases 224. His Honour said in those cases it was held that a nullity suit is a proper method for having a marriage declared to be void and that no declaration proceedings could be entertained. His Honour then went on to say that he was satisfied that once the facts were proved to establish that the marriage was void, the court had no jurisdiction to find other than the marriage was no marriage and then to declare the marriage to be absolutely null and void.
That case of C v D stood the test of time for a long time until 1991 when an application was made before Kay J in Kapadia (1991) FLC 92-245. His Honour Kay J looked at what Bell J had done and then said that if Bell J was saying that the only procedure available to the parties was that relating to a decree of nullity then he found himself unfortunately disagreeing with Bell J.
Whilst on one view, there is an inconsistency between s 104 and the provision of s 113, it is quite clear that s 113 is an extremely wide provision. I agree with Kay J that nothing in s 113 limits its operation. Its tenor is whether or not a set of facts justify the declaration.
This is a case in which, on the evidence, I am satisfied that the husband was divorced in Egypt and is a divorced person for the purposes of all Australian laws and it is appropriate to make a declaration that the divorce granted in Egypt in 2008 is a valid decree of divorce for Australian law under s 113 of the Family Law Act.
The formal orders will be issued this morning, firstly declaring that under s 113, the marriage at L was an invalid marriage, and two, that the divorce from the Egyptian law in 2008 is a valid divorce for Australian law.
I request that the Registrar of Births, Deaths and Marriages note the declaration accordingly.

I certify that the preceding Forty Two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 24 June 2009