Eldaleh - [2016] FamCA 1103

FAMILY COURT OF AUSTRALIA

ELDALEH

[2016] FamCA 1103

FAMILY LAW – MARRIAGE – VALIDITY – Overseas marriage – Where the applicant seeks a declaration of validity pursuant to section 88D of the Marriage Act 1961 (Cth) – Where the marriage cannot be declared valid as it occurred with a person not of marriageable age – Application dismissed.

Domicile Act 1982 (Cth) ss 10, 12
Marriage Act 1961 (Cth) ss 12, 13, 88D

APPLICANT:

Mr Eldaleh

FILE NUMBER:

MLC

11907

2016

DATE DELIVERED:

21 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

McClelland J

HEARING DATE:

7 December 2016 and by way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Lindsay of Brimbank Melton Community Legal Centre

Orders

The application filed by the applicant, Mr Eldaleh, on 6 December 2016 is 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 Eldaleh 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

FILE NUMBER: MLC 11907 of 2016

Mr Eldaleh

Applicant

REASONS FOR JUDGMENT

In this matter, Mr Eldaleh (“the applicant”) seeks pursuant to s 88D of the Marriage Act 1961 (Cth) (“the Marriage Act”), a declaration of validity of the marriage between himself and Ms Eldaleh. Mr Eldaleh is currently 30 years of age whilst Ms Eldaleh, who was born in 1999, is currently 17 years of age.
The applicant and Ms Eldaleh were married in the Middle East, in mid-2016, at which time Ms Eldaleh was 16 years old. Ms Eldaleh is currently pregnant with the couple’s first child and is due to give birth in mid-2017. Ms Eldaleh was not joined as a respondent to these proceedings and there are no documents presenting her perspective before the Court.
Section 88D of the Marriage Act appears within Part VA of the Marriage Act, which deals with the recognition of foreign marriages. Section 88D is concerned with the validity of marriages and sub-s (2) relevantly provides:
(2) A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
…
(b) where one of the parties was, at the time of the marriage, domiciled in Australia--either of the parties was not of marriageable age within the meaning of Part II;
…
Under Part II of the Marriage Act, s 11 of the Act provides that, subject to s 12, “a person is of marriageable age if the person has attained the age of 18 years”.
Paragraph (b) of s 88D(2) refers to “where one of the parties was, at the time of the marriage, domiciled in Australia”.[1] “Domiciled” takes its meaning from the Domicile Act 1982 (Cth) (“the Domicile Act”) which, at s 10, relevantly provides:
The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.
[1] Emphasis added.
Section 12 of the Domicile Act provides:
The acquisition of a domicile of choice in place of a domicile of origin may be established by evidence that would be sufficient to establish the domicile of choice if the previous domicile had also been a domicile of choice.
Although the courtship and marriage of the applicant and Ms Eldaleh took place in the Middle East, it was acknowledged that the applicant was, at the time of the marriage, domiciled in Australia.
As a result of the applicant being domiciledin Australia, s 88D(2)(b) of the Marriage Act applies and the marriage is not valid if either of the parties was not of marriageable age, that is 18 years of age.
In this matter it is accepted that Ms Eldaleh was 16 years of age at the time of marriage and, accordingly, the marriage cannot be declared to be a valid marriage under s 88D of the Marriage Act.[2]
[2] See Arun & Baktahri [2013] FamCA referring to Buciu & Sabau (1997) FLC 92-765 and Re B (1983) FLC 91-332 at 78,260 -61.
Section 12 of the Marriage Act provides that in certain circumstances, a court may authorise the marriage of a person under the age of 18 years. The section provides:
(1) A person who has attained the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years.
(2) The Judge or magistrate shall, subject to subsection (4), hold an inquiry into the relevant facts and circumstances and, if satisfied that:
(a) the applicant has attained the age of 16 years; and
(b) the circumstances of the case are so exceptional and unusual as to justify the making of the order;
the Judge or magistrate may, in his or her discretion, make the order sought, but otherwise the Judge or magistrate shall refuse the application.
(3) Subject to subsection (5), where a Judge or a magistrate has made such an order, the person on whose application the order was made is, in relation to his or her marriage to the other person specified in the order, but not otherwise, of marriageable age.
(4) Where a Judge or a magistrate to whom an application is made under this section is satisfied that the matter could more properly be dealt with by a Judge or a magistrate sitting at a place nearer the place where the applicant ordinarily resides, the Judge or magistrate may, in his or her discretion, refuse to proceed with the hearing of the application, but such a refusal shall not, for the purposes of section 19, be deemed to be a refusal of the application.
(5) Where an order is made under this section and the marriage to which the order relates does not take place within 3 months after the date of the order, the order ceases to have effect.
However, it is clear that the section is directed toward a prospective marriage, rather than facilitating any retrospective authorisation or validation of a marriage.
As such, no mechanism is available under the Marriage Act by which the Court can validate the extant marriage between the applicant and Ms Eldaleh that took place in accordance with the relevant law in the Middle East.
In written submissions provided to the Court on 16 December 2016, the solicitor for the applicant acknowledged this to be the case. The position in that respect was summarised as follows:
Despite the Court’s ability to dispense with Rules or make Rules to fit difficult or unclear circumstances, the Court does not have jurisdiction to grant this application in it’s [sic] current form. An application made for a marriage between an underage person and a person over the age of 18 years may be made by the underage person for the Court to make an Order that they may marry within the next three (3) months. It is a prescriptive power.
(Emphasis in original)
As a result, it was submitted that the appropriate course of action is for the Court to make “procedural orders” for the purpose of joining Ms Eldaleh as an applicant in these proceedings and to allow her time to file supporting material. That additional material would be for the purpose of Ms Eldaleh making an application under s 12 of the Marriage Act for authorisation for her to marry the applicant despite the fact that she has not attained the age of 18 years.
With respect, it would be inappropriate for the Court to make an order joining Ms Eldaleh to these proceedings for the purpose of making such an application.
The application foreshadowed on behalf of Ms Eldaleh would be fundamentally inconsistent with the current application before the Court for determination. As noted, the application currently before the Court is for a declaration validating the marriage between the applicant and Ms Eldaleh pursuant to s 88D of the Marriage Act. An application by Ms Eldaleh, as foreshadowed in the written submissions, would be pursuant to s 12 of the Marriage Act. Such an application is predicated on the basis that Ms Eldaleh has not previously been married (see s 13(1) of the Marriage Act).
Accordingly, in circumstances where the Court is without jurisdiction to make the orders sought in the current application before the Court, that application must be dismissed.
This outcome does not, however, preclude the applicant or Ms Eldaleh from making such other applications before the Court, or a State court alternatively, as they deem appropriate in light of further legal advice concerning their circumstances.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 December 2016.

Associate:

Date: 21 December 2016