GOMIS & DANTAS

[2019] FamCA 45

FAMILY COURT OF AUSTRALIA

GOMIS & DANTAS [2019] FamCA 45

FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the parties were validly married in Country D – Where the parties underwent a second marriage ceremony in Australia – Consideration is given to circumstances in which a marriage is found it be void – Where it is found that the Australian marriage is void – Declaration of nullity made.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23, 23B, 88C, 88D, 88G, 113

Duryodhana & Chawla [2018] FamCA 1089
Zua v Huang [2015] FamCA 873

APPLICANT: Ms Gomis

RESPONDENT: Mr Dantas

FILE NUMBER: PAC 558 of 2019

DATE DELIVERED: 31 January 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Rysiok

RESPONDENT – LITIGANT IN PERSON

Orders

1. The marriage between the applicant and the respondent conducted at Suburb B, Victoria in August 2017 be declared void and a nullity.

2. All outstanding applications and cross-applications are 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 Gomis & Dantas 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 PARRAMATTA

FILE NUMBER: PAC 558 of 2019

Ms Gomis

Applicant

And

Mr Dantas

Respondent

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns an application for a decree of nullity of the marriage between Ms Gomis (“the wife”) and Mr Dantas (“the husband”) solemnised in 2017.

2. In 2013 the wife (who appears to have been then living in Australia) and the husband, a resident of Country D were married in Country D in a civil ceremony (“the Country D marriage”). The parties married to facilitate the husband residing with the wife in Australia.

3. In 2016, the husband was granted a Prospective Marriage Visa and in July 2017 moved to Australia where he began living with the wife.  

4. The parties underwent a second marriage ceremony in August 2017 in a suburb of Melbourne (“the Australian marriage”). The wife deposes that she and the husband underwent this second marriage ceremony on the advice of an immigration lawyer in Australia that a marriage ceremony in Australia was required for immigration purposes.

5. The parties separated in November 2017.

6. On 7 February 2019, the wife filed an Application for Divorce in the Federal Circuit Court in relation to the Australian marriage (“the initial divorce application”).

7. The husband filed a Response to Divorce where he stated that the parties were married twice and that the first marriage occurred in 2013 in Country D.

8. When the initial divorce application came before the registrar in April 2019 the registrar refused to grant the divorce. The wife subsequently discontinued her initial divorce application and commenced divorce proceedings in Country D. The divorce application filed in Country D was later withdrawn at the request of the wife.

9. On 1 August 2019, the wife filed a further Application for Divorce in the Federal Circuit Court relying this time on the parties’ Country D marriage.

10. On 12 September 2019, a divorce order was granted in relation to the Country D marriage in the Federal Circuit Court of Australia, effective on 13 October 2019.

11. The wife then filed an Initiating Application dated 12 September 2019 seeking that the Australian marriage be declared null and void.

12. On 15 November 2019, the husband filed a Response to Initiating Application in which he did not oppose the orders sought by the wife.

The 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 based on the ground that the marriage is void”.

2. The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”), which provides, relevantly, as follows:

   (1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 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

   (iii)  that party is mentally incapable of understanding the nature and effect of the marriage ceremony;  or

   (e)  either of the parties is not of marriageable age;

   and not otherwise.

3. Although this provision purports to be exhaustive, particularly with the inclusion of the words ‘and not otherwise’, difficulties arise in circumstances where, as in the present case, parties undertake a second marriage ceremony with each other.

4. While reference is made in that section to the effect of a marriage where either of the parties is, or at the time of the marriage, lawfully married to “some other person”, s 23B(1) is silent about the effect of a marriage where both parties are already validly married to each other.

5. This appears at odds with s 113(1)(a) of the Marriage Act which expressly prohibits persons who are already legally married to each other from going through a ceremony of marriage with each other.

6. There are only two exceptions under s 113 which allow a second marriage between parties already validly married to each other to take place.

7. The first exception, under s 113(2), provides: 

   (2) Where:

   (a)2 persons have gone through a form or ceremony of marriage with each other, whether before or after the commencement of this Act; and;

   (b)  there is a doubt: 

   (i)  whether those persons are legally married to each other; 

   (ii)  where the form or ceremony of marriage took place outside Australia, whether the marriage would be recognised as valid by a court in Australia; or; or

   (iii)  whether their marriage could be proved in legal proceedings;

   those persons may, subject to this section, go through a form or ceremony of marriage with each other in accordance with Division 2 of Part IV or under Part V as if they had not previously gone through a form or ceremony of marriage with each other.

8. The second exception, under s 113(5), provides:

   (5) Nothing in this Act shall be taken to prevent 2 persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia where those persons have:

   (a)produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and

   (b)  furnished to that person a statement in writing, signed by them and witnessed by that person, that:

   (i)  they have previously gone through a form or ceremony of marriage with each other; 

   (ii)  they are the parties mentioned in the certificate of marriage produced with the statement; and

   (iii)  they have no reason to believe that they are not legally married to each other or, if their marriage took place outside Australia, they have no reason to believe that it would not be recognised as valid in Australia.

9. Because there is no suggestion that there was any doubt as to the legality of the Country D marriage or that the Australian marriage ceremony was a “religious ceremony of marriage”, the exceptions provided for in s 113 do not apply here.

10. I am satisfied that the parties’ Country D marriage entered into in 2013 was valid. 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”[1]. 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 wife annexes to her affidavit a copy of the marriage certificate for the marriage solemnized in Country D.

    [1] Marriage Act 1961 (Cth) ss 88C(1), 88D(1).

11. While the Marriage Act is silent about the status of the Australian marriage in contravention of s 113, as a matter of logic a marriage conducted between two persons already married to each other is of no legal effect and thus must be void, notwithstanding that it is not referred to in s 23B(1).

12. For the foregoing reasons, I am satisfied that the Australian marriage of 2017 marriage is void.

13. A declaration will be made that the marriage in 2017 between the wife and husband is void and a nullity.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 31 January 2020.

Associate: 

Date:  31 January 2020