Dohm & Acton

[2008] FamCA 482

FAMILY COURT OF AUSTRALIA

DOHM & ACTON [2008] FamCA 482

FAMILY LAW – DECLARATION – VALIDITY OF MARRIAGE – application by husband seeking declaration of validity of his marriage to respondent – parties agree participated in ceremony recognised by custom as resulting in their marriage under local law – whether recognised as valid marriage in Australia – husband previously married – husband confirmed had not divorced first wife – parties accepted polygamy permitted in country in which married – no expert evidence provided – satisfied husband was validly married to first wife and still married at time of second marriage – s 88D(2)(a) of Marriage Act 1961 – not possible to recognise marriage between parties – marriage not valid in Australia.

FAMILY LAW – INJUNCTION – injunctions restraining both parties during period of adjournment.

Marriage Act 1961 (Cth) s 88D(2)(a)

APPLICANT: Mr Dohm

RESPONDENT: Ms Acton

FILE NUMBER: ADC 58 of 2008

DATE DELIVERED: 24 June 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 24 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.G. McGinn

SOLICITOR FOR THE APPLICANT: Legal Services Commission

COUNSEL FOR THE RESPONDENT: Ms A. Horvat

SOLICITOR FOR THE RESPONDENT: Barr Lawyers

Orders

IT IS DECLARED THAT:  the marriage of Mr Dohm and Ms Acton celebrated in Sudan in July 1987 is not valid in Australia

and

IT IS ORDERED THAT:

1. Paragraph 2 of the wife’s Response to the Initiating Application filed on the 20 June 2008 is adjourned to the 10 July 2008 at 9.30 am before the Duty Judge.

1. During the period of the adjournment neither party are to approach or remain within 100 metres of any place at which the other party may reside from time to time.

1. The husband to file and serve any Affidavit or Response to the wife’s Response by 4.00 pm on the 7 July 2008.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 58 of 2008

MR DOHM

Applicant

And

MS ACTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the application of Mr Dohm, whom I shall refer to as the husband, filed on 8 January 2008, in which he seeks a declaration as to the validity of the marriage between the husband the respondent Ms Acton.

2. The Court is also asked to dispense with the requirement of filing a marriage certificate.  Before proceeding any further, I will, if it has not already been done, dispense with the requirement of the filing of a Marriage Certificate, taking into account the circumstances, date and place of the marriage of the parties and their residence here in Australia for some time.

3. The application of the husband is supported by an affidavit, which was also filed on 8 January 2008.  The matter has been adjourned from time to time, firstly to enable service upon the wife and more recently to enable legal advice and representation of the wife.

4. When the matter comes on before me today, the husband is represented by Mr McGinn of Counsel and the wife by Ms Horvat of Counsel.  I also have before me the affidavit of the wife, which was filed on 20 June 2008, at the same time as the wife's response to the initiating application.  In that response, the wife seeks a declaration that the husband and the respondent were married in Sudan in July 1987 and also seeks orders by way of injunctions.  (I have not heard any submissions on the injunctions but will do so when I have dealt with the application of validity.

5. The evidence of the husband, and indeed the wife, indicates that the parties went through what they both describe as a ceremony of marriage in their home country in Sudan in July 1987.  The parties have not provided any formal expert evidence.  However, the affidavits of both parties suggest that they agree that the form of ceremony was one which was recognised under the customs of Sudan as one which would result in them being married to each other under the law of Sudan.

6. The issue that I need to determine today is the question of the status of that marriage, bearing in mind the provisions of the Marriage Act in Australia, and therefore to determine whether the marriage ceremony in the Sudan in July 1987 has resulted in them having a valid marriage for the purposes of recognition here in Australia.

7. By way of background, the parties were married in the Sudan and travelled from the Sudan to another African country, together with the children.  They subsequently travelled to Australia in 2004.

8. The main issue to be determined is the status of the marriage ceremony entered into by the parties in 1987, taking into account the evidence in relation to the first marriage of the husband. 

9. The husband's affidavit sets out in detail the marriage to his first wife in the Sudan in 1975.  Again, in relation to that marriage I only have the affidavit of the husband before me.  I requested that he also provide oral evidence, as the affidavit was silent as to the possibility of a divorce from his first wife (although it clearly implied in his first affidavit that he was not divorced from his first wife at the time he married his second wife).  It was accepted by both parties in these proceedings before me that it is possible for the husband to have been married to both his first wife and his second wife at the same time under the laws permitting polygamy in the Sudan.  Again, I do not have any expert evidence in that regard before me today but accept the matter is not in contest between the parties for the purposes of my decision today.

10. The oral evidence of the husband confirmed both in chief and in cross‑examination that he had not at any time been divorced from his first wife. 

11. The affidavit of the wife in these proceedings raised that question quite clearly, because her affidavit asserts that the husband informed her and her family that, at the time of the marriage to her in 1987, he was divorced from his first wife.

12. It is not necessary for me today to make a definite finding as to whether the husband indeed told the second wife that he was divorced from his first wife at the time of his second marriage.  I make no finding as to the truth of any such conversation taking place at the time of or immediately before the second marriage.

13. Having heard the evidence and considered the material before me, I am satisfied, to the necessary standard that the husband was, at the time of the second marriage to Ms Acton, still married to his first wife. 

14. Taking that into account, I turn to consider the provisions of the Marriage Act and, in particular, the provisions of section 88D(2) of the Marriage Act, which provides that a marriage shall not be recognised as valid in accordance with subsection (1) of section 88D if:

    (a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last‑mentioned marriage was, at that time, recognised in Australia as valid.

15. There is a paucity of expert evidence about the first marriage. I accept, however, that the ceremony as described by the husband with his first wife was one of a type that the wife in these proceedings would recognise and was not challenged by her as one which would establish a valid marriage. The common law provisions and recognition of valid marriages do not require a certificate or formal registration. In particular, if the local law recognised it as a valid marriage, then Australian law would recognise it as a valid marriage, with the certain exceptions, of course, that are set out in the Marriage Act.

16. I am therefore satisfied that, at the time of the marriage to the wife Ms Acton, the husband was validly married to his first wife and, in accordance with the provisions of the Australian Marriage Act, it is not appropriate or possible to recognise the marriage between the husband and the wife Ms Acton as a valid marriage.

17. I am not in a position where I can make a definite decision about the facts which are raised in support of the application for injunction, but it is clear on the material before me that it would be appropriate for both parties to be restrained from causing concern by approaching or remaining within 100 metres of the home of the other.  I propose to adjourn the application of the wife in paragraph 2 to allow the husband to file his answering material.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  30 June 2008