Heaney & Gerethy
[2021] FamCA 511
•14 July 2021
FAMILY COURT OF AUSTRALIA
Heaney & Gerethy [2021] FamCA 511
File number(s): BRC 8234 of 2020 Judgment of: CAREW J Date of judgment: 14 July 2021 Catchwords: FAMILY LAW – DECLARATION – Validity of marriage – Where the parties were already lawfully married to each other at the time of their second marriage in Australia – Whether power to make declaration that the second marriage is not a valid marriage – Where a declaration is made that the second marriage is not a valid marriage.
FAMILY LAW – DECLARATION – Nullity of marriage – Whether there is power in the alternative to make a decree of nullity of the second marriage – Where no power to make decree of nullity.
Legislation: Civil Law and Justice Legislation Amendment Act 2018 (Cth)
Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)
Cases cited: Chapman & Michaelson [1909] 1 Ch 238
Dinal & Tohim [2009] FamCA 540
DJL v The Central Authority (2000) 201 CLR 226
Duryodhana & Chawla [2018] FamCA 1089
In the Marriage of Kapadia (1991) FLC 92-245
In the Marriage of Manning (1977) FLC 90-298
Mears & Mears (2012) FLC 93-503
Nelson & Nelson [2016] FamCA 516
Nien & Vo [2015] FamCA 142
Wright v Wright [2012] FamCA 216
Zau & Huang [2015] FamCA 873
Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexus Butterworths, 5th ed, 2015) 644
Number of paragraphs: 31 Date of last submission/s: 4 June 2021 Date of hearing: 28 May 2021 Place: Brisbane Solicitor for the Applicant: Forge Legal Respondent: Self-represented ORDERS
BRC 8234 of 2020 BETWEEN: MS HEANEY
Applicant
AND: MR GERETHY
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
14 JULY 2021
THE COURT DECLARES THAT:
1.The marriage entered into between Mr Gerethy and Ms Heaney at Suburb B in the State of Queensland, Australia on … 2007 was a marriage prohibited by s 113(1)(a) of the Marriage Act 1961 (Cth) and therefore not a valid marriage.
2.It is respectfully requested that the Registrar of Births Deaths and Marriages (Qld) amend the register accordingly.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaney & Gerethy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J
Ms Heaney (“the wife”) and Mr Gerethy (“the husband”) were married twice; to each other. At the time of their second marriage, the first marriage was still intact. They had not been divorced. The Marriage Act 1961 (Cth) specifically prohibits a second marriage between the same parties, subject to certain exceptions which do not apply here.[1]
[1] Marriage Act 1961 (Cth) (“the Marriage Act”) s 113(1).
The wife applies for a declaration that the second marriage is not a valid marriage or is a nullity. The husband supports her application.
BRIEF BACKGROUND
The wife and husband were first married to each other in Canada in late 1994 (“the first marriage”).
After the parties moved to Australia, the wife expressed a desire to again celebrate their marriage to allow the wife’s family to attend the ceremony, as no one from her family had been able to attend their marriage in Canada.
The marriage in Australia (“the second marriage”) took place in 2007 in Suburb B, Queensland. There is no suggestion that it was a religious ceremony.[2]
[2] See s 113(5) of the Marriage Act (n 1) which enables parties already married to go through a subsequent religious ceremony.
The celebrant of the second marriage was not informed either by way of verbal declaration, written statement or provision of the Canadian marriage certificate that the parties were in fact already married to each other.
The parties separated on 1 August 2013 and finalised their property settlement in 2014. In June 2021 a divorce order was granted in relation to the first marriage to take effect in July 2021.
By her application filed 27 July 2020 the wife seeks that the second marriage to the husband be declared “not a valid marriage”. The wife made subsequent submissions to the Court on 4 June 2021 seeking a decree of nullity in the alternative.
CAN A DECREE OF NULLITY BE MADE?
This Court is a creation of the Family Law Act 1975 (Cth).[3] It does not have inherent jurisdiction.[4] The limits of the Court’s jurisdiction are specified in the Act and certain other federal statutes e.g. the Marriage Act 1961 (Cth). The Court’s powers extend to “such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.[5]
[3] See s 21 of the Family Law Act 1975 (Cth) (“Family Law Act”).
[4] DJL v The Central Authority (2000) 201 CLR 226 at 240-241, [25] and at 248, [45] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[5] Ibid at 241, [25] quoting Parsons v Martin (1984) 5 FCR 235 at 241 (Bowen CJ, Northrop and Toohey JJ).
Section 51 of the Act permits the Court to grant a decree of nullity of marriage solely on the ground that the marriage is void.[6]
[6] Family Law Act (n 3) s 51.
Section 23B of the Marriage Act sets out the bases upon which a marriage is void:
(a)lack of consent by one of the parties;
(b)bigamy;
(c)one of the parties not being of marriageable age;
(d)the parties being close by blood or adoption; or
(e)the ceremony not being solemnised in accordance with the Marriage Act (by reason of section 48);
and not otherwise.
Section 48 of the Marriage Act provides:[7]
[7] (n 1) s 48.
Certain marriages not solemnised in accordance with this Division to be invalid
(1)Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.
(2) A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42 (intention to marry), or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42 (conjugal status, legal impediment to marry), or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;
(e)failure to comply with the requirements of section 44 or 46 (nature of marriage to be explained);
(f)failure to comply with the requirements of section 13 (marriage of a minor).
(3)A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.
(words in brackets added)
Nothing in ss 48, 42, 44, 46 or 13 of the Marriage Act makes the second marriage not a valid marriage.
A decree of nullity i.e. a declaration that the marriage is void, can only be made if the marriage is void within the meaning of s 23B of the Marriage Act. As the second marriage, the subject of these proceedings is not, I have no power to grant a decree of nullity pursuant to s 51 of the Family Law Act.
CAN A DECLARATION BE MADE THAT THE SECOND MARRIAGE IS NOT VALID?
Although s 113(1) of the Marriage Act prohibits persons who are already married to each other from marrying in Australia,[8] there is nothing in the Marriage Act that declares such a marriage to be invalid, void or a nullity. Curiously, such a marriage is not included in the list of void marriages set out in s 23B of the Marriage Act.
[8] There are certain exceptions but they do not apply in this case.
It is difficult to see that a declaration that the second marriage is not valid means other than that the marriage is void or a nullity. As already discussed, the sole basis upon which a decree of nullity can be made is that a marriage is void, and a marriage is void only if it can be characterised as falling within s 23B of the Marriage Act. My view that a declaration of invalidity appears to be the same as a declaration or decree of nullity is supported by observations made by the Full Court in Mears & Mears (Finn, May, Strickland JJ) where a reference to a “declaration of invalidity” was said to more correctly be “a decree of nullity of marriage”.[9]
[9] (2012) FLC 93-503 at 86,416, [36].
However, the wife relies upon a number of authorities in this Court where a declaration as sought by the wife, has been made, on occasion without identifying the source of power, or alternatively relying upon s 113 of the Family Law Act which provides that:
In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
Proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause relevantly are:
(a) …
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) …
(iii) …
by decree or otherwise.
In In the Marriage of Kapadia and Kapadia[10] Kay J made a declaration that a second marriage entered into between the same parties was not a valid marriage. His Honour noted that s 113 of the Marriage Act prohibited such a marriage, and said that although a decree of nullity could not be made as the marriage was not void within the meaning of s 23B of the Marriage Act, it was nevertheless a matter of “logic” that a marriage prohibited by the Marriage Act was a nullity.[11]
[10] (1991) FLC 92-245 (“Kapadia”).
[11] Kapadia (n 10) at 78,667, quoting Professor Anthony Dickey, ‘Two questions concerning repeat marriage ceremonies’ (1991) 65 Australian Law Journal 409, 410.
In Dinal & Tohim (No 2)[12] Cronin J declared that a second marriage between the same parties was not a valid one because it did not comply with s 113 of the Marriage Act. Cronin also directed the Registrar of Births Deaths and Marriages to note the declaration and amend their records accordingly. While noting that none of the circumstances set out in s 23B of the Marriage Act applied, his Honour said at [30]:
Apart from prohibiting parties who are already legally married to each other going through a marriage ceremony, s 113 of the Marriage Act does not indicate that to do so makes the marriage invalid. However, if parties are prohibited from going through a form of ceremony as described in s 113 and they do so, it must follow that the marriage so performed is not a valid one because it does not comply with the basic requirements of the Act.
[12] [2009] FamCA 540.
In Wright & Wright[13] Watts J made a declaration that a second marriage, entered into between the same parties of the first marriage, was invalid. His Honour held that s 113 of the Family Law Act provides a discretion to make such declaration as is justified in relation to the validity of a marriage, which his Honour interpreted to incorporate a declaration of invalidity.
[13] [2012] FamCA 216.
In Nien & Vo[14] Hogan J declined to make a decree of nullity in relation to the second marriage between the same parties finding that the only basis to do so is if the marriage is void within the meaning of s 23B of the Marriage Act. Her Honour nevertheless made a declaration that the marriage was not a valid marriage because it contravenes s 113(1)(a) of the Marriage Act.
[14] [2015] FamCA 142.
In Zau & Huang[15] Berman J declared that a second marriage entered into between the same parties was null and void. His Honour held that the words “and not otherwise” where they appear in s 23B of the MarriageAct “should be interpreted broadly, and not literally”. Berman J went on to note that s 113 of the Marriage Act prohibited the second marriage and said at [19]-[20]:
…
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.
…
… 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.
(Error in original)
[15] [2015] FamCA 873.
In Nelson & Nelson[16] Hannam J declared a second marriage between the same parties to be void and a nullity. Her Honour adopted the reasoning of Berman J in Zau & Huang and said at [14]:
…
While the Marriage Act says nothing 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 void, notwithstanding that it is not referred to in s 23B(1). I am satisfied that the marriage is void.
[16] [2016] FamCA 516 (“Nelson”).
In Duryodhana & Chawla[17] Johns J declared that a second marriage between the same parties is null and void. Her Honour adopted the reasoning of Kay J and Berman J and said at [26]:
…
… 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.
[17] [2018] FamCA 1089.
In October 2018 the Family Law Act was amended[18] to add the following subparagraph to s 21 of the Family Law Act:[19]
[18] Civil Law and Justice Legislation Amendment Act 2018 (Cth), Schedule 6 (“Civil Law Amendment Act”).
[19] (n 4) s 21.
Creation of Court
…
(2A) The Court, is, and is taken always to have been, a court of law and equity.
Until that amendment, and in the absence of a specific power in the Family Law Act, there may justifiably have been some uncertainty about the Court’s power to make a declaration in the terms identified in earlier decisions.
In this context, I note the comments made by Lindenmayer J in In the Marriage of Manning[20] where his Honour held that the Court had no power to make a declaration that a party to a marriage was dead in circumstances where the husband had been missing for many years and the wife applied for a dissolution of marriage. His Honour noted that a marriage could only be dissolved under the Act when the marriage had broken down irretrievably. A presumption of death did not provide a basis under the Act for the dissolution of the marriage. Lindenmayer J held that before a marriage could be dissolved, the Court must be satisfied that there is an existing valid marriage, and in circumstances where the husband had disappeared and was presumed dead, the marriage was dissolved by death - although his Honour found that he had no power to make such a declaration. His Honour said at 11,519-11,520 and at 11,522:
It is axiomatic that if one of the parties to a marriage is already dead, there is nothing for the Court to dissolve, the marriage having already been dissolved by the death, and for the Court in those circumstances to purport to pronounce a decree of dissolution would he nothing but a solemn farce. This may be seen by some as pedantic or overly legalistic approach, but in my opinion a Court of law should not pronounce a decree or make an order which it knows or believes to be a nullity, solely for the convenience of a party.
…
In my opinion, therefore, what are clearly intended to be encompassed within para. (b) of the definition of “matrimonial cause” are proceedings for declarations as to the validity of other man-made decrees, orders, or other judicial, quasi-judicial, administrative or even legislative acts, purporting to create, dissolve or annul marriages, and nothing else.
(Emphasis in original.)
[20] (1977) FLC 90-298.
Conclusion
It is unsatisfactory that the legislature has provided for a decree of nullity to be made only where a marriage is void within the meaning of s 23B of the Marriage Act. If something is a nullity it is not valid; it is void. It would be a simple matter to amend the Marriage Act to include the circumstances of s 113(1) as a void marriage. The “hiatus” in the legislation has resulted in some rather novel approaches by the Court over the years in an attempt to provide a solution.[21]
[21] Nelson (n 16) at [19].
Ultimately, it is not necessary for me to determine whether the power to grant a declaration is available as a matter of “logic” or alternatively pursuant to s 113 of the Family Law Act.
In my view, the 2018 amendments to the Family Law Act empower the Court, as a court of equity, to grant equitable remedies in matrimonial causes.[22] As declaratory relief is an equitable remedy[23] I am satisfied that I have the power to make a declaration that the second marriage entered into between the wife and husband was a marriage prohibited by s 113(1) of the Marriage Act and therefore not a valid marriage. I will further request that the Registrar of Births Deaths and Marriages amend their records accordingly.
[22] Civil Law Amendment Act (n 20).
[23] Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) 644 [19-315]; Chapman & Michaelson [1909] 1 Ch 238 at 241 – 243.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 14 July 2021
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