Donald and Lidcombe

[2016] FamCA 840

FAMILY COURT OF AUSTRALIA

DONALD & LIDCOMBE [2016] FamCA 840

FAMILY LAW – Nullity – undefended application for decree of nullity of marriage on the ground that the marriage is void – where respondent married to another person at time of the marriage – where applicant believed divorce order had taken effect – marriage is void – application granted.

Family Law Act 1975 (Cth), ss 51, 55
Marriage Act 1961 (Cth), s 23B(1)

APPLICANT: Ms Donald

RESPONDENT:  Mr Lidcombe

FILE NUMBER: MLC 5352 of 2016

DATE DELIVERED: 24 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 7 September 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. The applicant be granted leave to proceed on an undefended basis.

2. Pursuant to section 51 of the Family Law Act 1975 (Cth), I pronounce a decree of nullity of the marriage solemnized on … 2014 at B Town in the State of Victoria between the applicant referred to in the marriage certificate as MS DONALD and the respondent referred to in the marriage certificate as MR LIDCOMBE on the ground that as at that date, the marriage was void because the respondent was lawfully married to another person.

3. All extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donald & Lidcombe 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 MELBOURNE

FILE NUMBER: MLC 5352 of 2016

Ms Donald
Applicant

And

Mr Lidcombe

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks a decree of nullity of her marriage to the respondent because on the date the parties married, the respondent’s divorce from his former wife had not yet come into effect.

2. The parties began cohabiting on 1 May 2013 and were married in 2014.  There is a child of the relationship between the parties, aged two years. The applicant has one child of a previous relationship, aged five years.  

3. There is an Intervention Order currently in place against the respondent, with the applicant and the two children being listed as affected persons.  The Intervention Order was made on 25 January 2016 for a period of 12 months.

4. The respondent did not appear at the hearing and has filed no documents in this matter. 

Application to proceed on an undefended basis

1. The applicant sought to proceed with her application on an undefended basis. She adduced evidence that her Initiating Application filed 14 June 2016, a copy of her affidavit sworn 26 April 2016 (and filed 14 June 2016) and a relevant court brochure had been served upon the respondent by hand by a process server on 18 July 2016, that a notice of the hearing on 7 September 2016 had been similarly served on 30 August 2016, and that the respondent had signed Acknowledgment of Service documents in respect of both occasions of service.

2. I was satisfied that the Initiating Application for a decree of nullity and the applicant’s supporting affidavit were served upon the respondent. I was satisfied that the respondent had been notified of the application and supporting affidavit and the hearing date.  I was also satisfied that he had not filed any material in response and that he has been given an opportunity to be heard but elected not to attend the hearing. I was satisfied that he has been afforded natural justice, and determined to hear the application in his absence on an undefended basis.

The relevant law

1. 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 on the ground that the marriage is void.

2. The onus is on the applicant to establish, on the balance of probabilities, that the marriage is void pursuant to one of the grounds set out in s 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”).

3. Under s 23B(1)(a) of the Marriage Act, a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.

4. Section 55 of the Family Law Act relevantly provides that a divorce order made under the Family Law Act takes effect at the expiration of the period of 1 month from the making of the order.

5. A person’s subjective belief as to whether or not they are already married as at the time of the ceremony of marriage is irrelevant. The provision in the Marriage Act is absolute.

Evidence

1. The applicant relied upon her Initiating Application and affidavit filed 14 June 2016, together with the certificate of marriage.

2. The applicant deposes that a divorce order was made between the respondent and his former wife, Ms C Lidcombe, on 19 June 2014, taking effect on 20 July 2014.  The applicant married the respondent shortly before this date in 2014 and a marriage certificate was issued by Births, Deaths and Marriages Victoria.  The applicant deposes that she was unaware that the divorce order did not take effect until after the divorce hearing, and believed that it would take effect from the day of the hearing.

3. The applicant provided a copy of the marriage certificate between herself and the respondent, and referred to the proceeding number of the proceedings for the divorce between the respondent and Ms C Lidcombe.

Conclusion

1. I find that the divorce order between the respondent and Ms C Lidcombe was made on 19 June 2014.

2. I find that the marriage between the parties was solemnized shortly after in 2014.

3. I am therefore satisfied on the unchallenged evidence of the applicant that a divorce order was made on 19 June 2014 between the respondent and Ms C Lidcombe which had not taken effect when the marriage between the applicant and the respondent was solemnized.  Accordingly, I am satisfied that the respondent was, at the time of the marriage between the parties, lawfully married to another person.

4. On that basis, I find that the marriage is void and propose to pronounce a decree of nullity of the marriage between the applicant and the respondent.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 24 October 2016.

Associate: 

Date:  24 October 2016