Duryodhana & Chawla
[2018] FamCA 1089
•16 November 2018
FAMILY COURT OF AUSTRALIA
| DURYODHANA & CHAWLA | [2018] FamCA 1089 |
| FAMILY LAW – NULLITY – where a declaration of a valid marriage in India is sought – where a declaration of a marriage in Australia is null and void is sought – where the wife has not attended – where the wife has been served with documents – where the court is satisfied the matter proceed on an undefended basis – where the court is satisfied the parties entered into a valid marriage in India in early 2010 – where the parties subsequently married in Australia in mid 2010 – declaration made that the marriage between the parties conducted in Australia is null and void – declaration made that the marriage entered into by the parties in India is a valid marriage. |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) ss 23B, 88C, 88G, 113 |
| Kapadia & Kapadia (1991) FLC 92-245 Zau & Huang [2015] FamCA 873 |
| APPLICANT: | Mr Duryodhana |
| RESPONDENT: | Ms Chawla |
| FILE NUMBER: | MLC | 4657 | of | 2016 |
| DATE DELIVERED: | 16 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 13 November 2018 |
REPRESENTATION
AGENT SOLICITOR FOR THE APPLICANT: | Ms Silwaraju |
| SOLICITOR FOR THE APPLICANT: | Sekhon Lawyers |
| THE RESPONDENT: | No Appearance |
Orders
IT IS DECLARED
That the marriage entered into by Mr Duryodhana and Ms Chawla on … 2010 in India is a valid marriage.
That the marriage between the applicant and the respondent conducted at Adelaide on … 2010 is declared null and void.
AND IT IS ORDERED
That the files numbered MLC4657/2016 and MLC8128/2017 be consolidated.
That the Initiating Application filed 31 May 2018 be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duryodhana & Chawla has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4657 of 2016
| MR DURYODHANA |
Applicant
And
| MS CHAWLA |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the application of the husband, Mr Duryodhana for a decree of nullity of marriage in respect of the marriage entered into between the husband and the wife in Adelaide in mid 2010.
The husband and the wife married in early 2010 in India (“the first marriage”). Following the first marriage the parties commenced living in Australia. The husband deposes that as the first marriage was a religious ceremony, he did not believe that it was a marriage that would be recognised in Australia. As a result, the parties married at the Registry Office in Adelaide (“the second marriage”).
The parties separated in Melbourne in July 2012 and have lived separately and apart since that time. The husband seeks a declaration as to the validity of the first marriage and a declaration of nullity in respect of the second marriage. He also seeks a divorce order in respect of the parties’ first marriage.
In support of his application the husband relies upon the following documents:-
·Initiating Application filed 31 May 2018;
·Affidavit of the husband filed 31 May 2018;
·Affidavit of Service by hand of Mr B filed 6 July 2018;
·Affidavit of Mr C filed 16 August 2018;
·Affidavit of Mr D filed 1 November 2018.
The wife has filed no material in response to the husband’s application.
The Affidavit of Service of Mr B filed 6 July 2018 confirms that on 26 June 2018 the wife was served by hand with the Initiating Application and affidavit of the husband, both filed 31 May 2018. Having regard to that affidavit I am satisfied that the wife has had notice of the husband’s application.
The husband’s application was originally listed before Registrar Field on 6 July 2018. The wife did not appear at Court that day. Orders were made listing the application to the Judicial Duty List on 4 September 2018 and requiring the husband to serve on the wife by pre-paid post a copy of those orders.
The matter came before me on 4 September 2018. Again, there was no appearance by or on behalf of the wife that day. However, the husband’s lawyer was unable to produce evidence which confirmed that the wife had been served with the orders of 6 July 2018 giving notice of the hearing. As a result, that day I made orders adjourning the proceedings and requiring the husband to serve a sealed copy of those orders on the wife.
The affidavit of Mr D filed 1 November 2018 confirms that on 8 September 2018 he caused a sealed copy of the orders dated 4 September 2018 to be served on the wife by email. Further, he deposes that by letter dated 10 September 2018 he caused a sealed copy of the orders to be served by way of ordinary post to the wife.
I am satisfied having regard to that affidavit that the wife has had notice of the hearing this day.
The wife was called in the Court precincts prior to the commencement of the hearing. She did not answer the call.
I am satisfied that the wife has been afforded procedural fairness, having had notice of the applications before the Court and of the hearing. Accordingly, I am satisfied that it is appropriate that the matter proceed on an undefended basis.
Discussion
As to the validity of the first marriage, an overseas marriage will be recognised in Australia as valid if “under the local law, the marriage was, at the time when it was solemnised, recognised as valid” (s 88C(1) of Marriage Act 1961 (Cth) (“Marriage Act”)). Section 88G(1) of the Marriage Act provides that a marriage certificate issued by a competent authority in a foreign country is prima facie evidence of the occurrence of the marriage and of the validity of the marriage.
The husband has produced the certificate of marriage in respect of the marriage ceremony conducted in India in early 2010 (Annexure SSD-1). The husband relies on the affidavit of Mr C, solicitor, who practised as a lawyer in India for approximately 22 years. A copy of the certificate of marriage in respect of the first marriage is annexed to Mr C’s affidavit (Annexure ASA-1).
Mr C deposed that the certificate of marriage in respect of the first marriage is recognised in India as evidence of a valid marriage between the husband and wife for the purposes of the law in India. There is no challenge to that evidence. Accordingly, having regard to that evidence I am satisfied that the parties entered into a valid marriage in accordance with the provisions of s 88G(1) of the Marriage Act.
Section 51 of the Family Law Act 1975 (Cth) provides that:-
An application under this act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
A void marriage is of no effect in law. It is not a marriage at all, whether or not a decree declaring it void has been pronounced. The decree of nullity is simply a declaration which confirms the fact that there was never a valid marriage.
Sections 23 and 23B of the Marriage Act set out the grounds for a decree of nullity of marriage. The relevant section for the date of this marriage is s 23B of the Marriage Act. Section 23B(1) of the Marriage Act provides that a marriage 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
(i)that party did not understand the nature and effect of the marriage ceremony; or
(e)either of the parties is not of marriageable age;
and not otherwise.
Section 23B(1) of the Marriage Act makes no specific provision for the current circumstances in which the parties find themselves, that is, having entered a valid marriage in India they have entered a second marriage in Australia.
Whilst s 23B(1)(a) of the Marriage Act provides that a marriage is void where either of the parties is at the time of the marriage lawfully married to some other person, it does not contemplate a second marriage between the same parties.
The husband relies upon s 113(1)(a) of the Marriage Act in support of his application that the second marriage be declared void. That provides:-
Except in accordance with this section:
(a)Persons who are already legally married to each other shall not, in Australia or under Part V go through a form or ceremony of marriage with each other.
It is submitted on behalf of the husband that given there is an expressed prohibition against a second marriage such as entered into by the parties in Adelaide, the second marriage should be declared void.
Having regard to the provisions of s 113(1)(a) of the Marriage Act, it is my view that the second marriage entered into by the parties must be void, notwithstanding the fact that such circumstance is not specifically referred to in s 23B(1) of the Marriage Act.
That view is bolstered having regard to the decision of Kay J in the decision of Kapadia & Kapadia (1991) FLC 92-245 (“Kapadia”) which contemplated a similar circumstance where parties were legally married on two occasions, the first in Fiji and the second in Australia. The husband sought a decree of dissolution of both of those marriages. At page 78,668 Kay J quoted with approval the observations of Professor Dickey in his article “Two Questions Concerning Repeat Marriages”[1] that:-
Logic must surely prevail. A second ceremony of marriage involving parties who are already lawfully married must be a nullity, despite the fact that the grounds of nullity in s 23B(1) purport to be exclusive…
[1] Professor Dickey, ‘Two Questions Concerning Repeat Marriages’ (1991) 65,7 Australian Law Journal.
More recently, Berman J in Zau & Huang [2015] FamCA 873 (“Zau & Huang”) considered similar circumstances to this, where the litigants entered into a marriage in China and subsequently a second marriage in Australia. In determining the matter Berman J stated:-
19.The general prohibition on second marriage ceremonies in s 113(1)(a) does pose a problem…The difficulty, possibly the hiatus in the legislation, is that the Marriage Act says nothing about the status of the second marriage ceremony in contravention of the provision. Again, I think commonsense and logic must be brought to bear, and I consider that any such marriage ceremony must be devoid of any legal effect, and therefore a nullity, and the marriage itself, in this case the Australian marriage, must therefore be void.
20.Section 23B(1) however, makes no provision for the situation just enunciated… it is silent about the effect of a marriage where both of the parties are already lawfully married to each other. Again, I consider logically, such a marriage must also be void, notwithstanding that it is not referred to in s 23B(1), and that notwithstanding the apparently exclusive nature of the words, and to otherwise at the conclusion of the subsection.
(emphasis in original)
Whilst s 113(1)(a) of the Marriage Act provides a general prohibition in relation to second marriage ceremonies, it does not address the status of any second marriage ceremony entered into in contravention of that provision. I respectfully agree with the statements of Kay J in Kapadia and Berman J in Zau & Huang that it is a matter of logic and common sense that any such second marriage ceremony must be void of any legal effect and therefore a nullity, notwithstanding that such circumstance is not specifically referred to in s 23B(1) of the Marriage Act. Accordingly, I am satisfied that the second marriage is void and will make a declaration accordingly.
The husband deposes that he had filed an application for divorce in the Federal Circuit Court but upon identifying the issue with respect to the two marriages filed a Notice of Discontinuance of that application. Having confirmed that I will make the necessary declaration in relation to the second marriage, the husband will now be at liberty to re-file his application for divorce order in the appropriate form and have the matter dealt with accordingly.
During the hearing it also became apparent that there are two files concerning the same parties. Therefore it is necessary for me to make an order that the two files be consolidated, to avoid any confusion in the future
Therefore the orders I make are as follows:-
IT IS DECLARED
1.That the marriage entered into by Mr Duryodhana and Ms Chawla on … 2010 in India is a valid marriage.
2.That the marriage between the applicant and the respondent conducted at Adelaide on … 2010 is declared null and void.
AND IT IS ORDERED
3.That the file MLC4657/2016 and MLC8128/2017 be consolidated.
4.That the Initiating Application filed 31 May 2018 be otherwise dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 November 2018
Associate:
Date: 16 November 2018
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