Heaney & Gerethy

In the matter of *Heaney & Gerethy*, Ms Heaney applied to the Federal Circuit and Family Court of Australia for a declaration that her second marriage to Mr Gerethy was not valid or, in the alternative, for a decree of nullity. The parties had previously been married to each other in Canada in 1994. In 2007, they remarried in Queensland, Australia, at the wife's request so her family could attend. The celebrant was unaware of the prior marriage. The parties separated in 2013, and a divorce order was granted in relation to their first marriage in 2021.

The court was required to determine two primary legal issues: first, whether it possessed the power to grant a decree of nullity for the second marriage, and second, whether it had the power to make a declaration that the second marriage was not a valid marriage. The wife sought a decree of nullity as an alternative to her primary claim for a declaration of invalidity.

Carew J found that the court's power to grant a decree of nullity is limited to marriages that are void under section 23B of the *Marriage Act 1961* (Cth). As the second marriage, being a bigamous union, did not fall within the specific grounds listed in section 23B, the court lacked the power to grant a decree of nullity. However, his Honour determined that the court did possess the power to make a declaration of invalidity. This power was derived from the court's equitable jurisdiction, as amended by the *Civil Law Amendment Act 2020* (Cth), which allows for equitable remedies in matrimonial causes. His Honour noted that while section 113(1) of the *Marriage Act* prohibits persons already married from marrying again in Australia, it does not explicitly render such a marriage void. Nevertheless, applying equitable principles, the court could declare the second marriage, which was prohibited by statute, as not valid.

The court declared that the marriage entered into between Mr Gerethy and Ms Heaney in Queensland in 2007 was a marriage prohibited by section 113(1)(a) of the *Marriage Act 1961* (Cth) and therefore not a valid marriage. The court also respectfully requested that the Registrar of Births, Deaths and Marriages (Queensland) amend the register accordingly.