GHAZEL & GHAZEL

[2015] FamCA 240

FAMILY COURT OF AUSTRALIA

GHAZEL & GHAZEL [2015] FamCA 240

FAMILY LAW – MARRIAGE – DECLARATION OF VALIDITY – where the parties married each other twice – where both marriages occurred overseas - where the parties received divorce in respect of the second marriage – where the wife seeks a declaration of validity in relation to the first marriage – recognition of foreign marriages - where the husband has since remarried – whether parties in a polygamous relationship – whether polygamous relationship recognised as valid – s88D of the Marriage Act 1961 (Cth).

Marriage Act 1961 (Cth) s88D

APPLICANT: Ms Ghazel

RESPONDENT: Mr Ghazel

FILE NUMBER: BRC 1670 of 2008

DATE DELIVERED: 27 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 March 2015, 27 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black (on 23 March 2015 only)

SOLICITOR FOR THE APPLICANT:

Lacy Lawyers (on 23 March 2015 only)

The Applicant in person on 27 March 2015

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The Initiating Application filed 19 November 2014 is dismissed.

IT IS FURTHER ORDERED THAT

1. A Registrar of the Court forward a copy of the Reasons for Judgment delivered 27 March 2015, together with a copy of the Applicant’s affidavit filed 19 November 2014 and a copy of the Application for Divorce filed 22 February 2008 to the Attorney-General’s Department under cover of a letter directing the Attorney-General to my comments in relation to the possible commission of a crime.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghazel & Ghazel 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 BRISBANE

FILE NUMBER: BRC 1670  of 2008

Ms Ghazel

Applicant

And

Mr Ghazel

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 19 November 2014, the Applicant filed an Initiating Application seeking a declaration that the marriage solemnised between the parties in Country B on 29 May 1981 is valid in accordance with s 88D of the Marriage Act 1961: that is, that the marriage shall be recognised in Australia as valid. 

2. The Respondent opposes the making of the declaration. 

3. Section 88D(1) of the Act is found in Part VA of the Act. My references are, unless otherwise made clear, to the Marriage Act.

4. That section provides that:

   Subject to its terms a marriage to which that Part applies shall be recognised in Australia as valid. 

5. Part VA deals with the recognition of foreign marriages.  It applies to all marriages celebrated outside of Australia, whether before or after the commencement of the Marriage Amendment Act 1985 on 7 April 1986. 

6. In Part VA, the term “marriage” has the meaning given by subsection (5)(1) of the Act: s 88B(4) of the Act.

7. Consequently, the term “marriage” for the purpose of Part VA of the Marriage Act means:

   The union of a man and a woman to the exclusion of all others voluntarily entered into for life. 

8. The definition of “marriage” for the purpose of Part VA of the Act means that a marriage solemnised in a foreign country must be monogamous for it to be recognised as valid in Australia. 

9. Polygamous marriages are not recognisable in Australia under this Part because such marriages do not accord with the concept of marriage as defined for the purpose of recognition under Part VA of the Act. 

10. A helpful discussion of the characterisation or classification of a marriage may be found between pages 566 and 576 of Nygh’s Conflict of Laws, 9th Edition.  Having regard to this commentary and the authorities referred to within it, I consider that the principles applicable to this case to the determination of the issues between the parties may be summarised as follows:

    a)a polygamous marriage is a relationship which exists where the law governing the relationship provides and gives recognition to the taking of additional spouses;

    b)the crucial factor is the potentiality of taking more than one spouse - in this case wife - under the law determining the nature of the relationship; the intention or action or lack of action of a party - in this case, the husband - is irrelevant;

    c)the lex loci celebrationis determines the character of the marriage such that it is polygamous if parties celebrate it in a form appropriate to polygamy in a country the law of which permits polygamy. 

11. The applicant’s evidence relevantly establishes the following.

12. She was born in Country A and the Respondent in Country B. She and the Respondent married in Country B in 1981, at which time she converted to the religion that was a requirement in that country. The effect of the marriage was that she became a Country B citizen.  She registered the marriage at an Country B embassy in Country A on about 23 May 1984, at which time she was issued with an Country B passport and a birth record/identification document – this is a document issued to all Country B Nationals and within which events such as marriages and divorces are recorded by Country B authorities. The marriage was registered by Country B authorities in 1984 in both her birth record and that of the Respondent. 

13. As a result of proceedings the Applicant commenced in Country B in about May 2013, the relevant court in that country concluded that she and the Respondent were still married there and that another woman, Ms C, is registered as the Respondent’s next marriage; that under Country B law, the Respondent needed her written permission to take another wife and that it had been determined that, in Country B, she (the Applicant) and the Respondent are in a polygamous marriage.

14. The further written submissions dated 27 March 2015 provided by the Applicant this morning confirm the potentiality for a Country B man to marry another wife.  Thus, even if, as the Applicant asserts in her affidavit filed 19 November 2014, the Respondent’s marriage to Ms C is “counterfeit” or was obtained in some fraudulent way or could only occur with her written consent, the reality remains that there is clearly the potential for this (her consent) to occur.  This, of course, itself has been confirmed by the finding in Country B to which I have already referred: namely, that the Applicant and Respondent are in a polygamous marriage for the purpose of Country B law.

15. This reality, it seems to me, provides the basis for the conclusion I have arrived at that the marriage entered into between the Applicant and the Respondent in Country B is not one which can be recognised in Australia as valid.  It is not a marriage to which Part VA of the Marriage Act applies. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 March 2015.

Associate:

Date:  7 April 2015.