HILL & SPITERI

[2016] FamCA 1136

FAMILY COURT OF AUSTRALIA

HILL & SPITERI [2016] FamCA 1136

FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the applicant was already married to a third party at the time of her marriage to the respondent in Australia – Where the respondent was not lawfully entitled to marry the applicant – Where marriage between the parties declared null and void.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B(1)(a)

APPLICANT: Mr Hill

RESPONDENT: Ms Spiteri

FILE NUMBER: BRC 6727 of 2016

DATE DELIVERED: 24 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 October 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. The Court declares that the marriage solemnised on … 2014 between the applicant, Mr Hill, and the respondent, Ms Spiteri, is absolutely null and void.

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 Hill & Spiteri 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 BRISBANE

FILE NUMBER: BRC 6727 of 2016

Mr Hill

Applicant

And

Ms Spiteri

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me for determination today an Initiating Application filed by the applicant, Mr Hill, in which he seeks a declaration of nullity, or an annulment in other words, of a marriage that was carried out in Australia on 23 April 2014 between him and the respondent, Ms Spiteri.  Interestingly, in this particular case, Ms Spiteri, the respondent sits at the other end of the bar table from Mr Hill, both of them unrepresented, Ms Spiteri being accompanied by a court provided interpreter in the Tagalog language, completely supporting Mr Hill’s Application. 

2. Section 51 of the Family Law Act1975 (Cth) gives this Court the power to grant a decree of nullity of marriage in the appropriate circumstances, namely where the Court determines that the marriage is void. To determine whether a marriage is void, one looks to another Act, namely the Marriage Act1961 (Cth). In particular one turns to s 23B of the Marriage Act, a section which begins with the heading “Grounds on which marriages are void”. Sub-section (1) of s 23B of the Marriage Act says this relevantly:

   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;

   That is the…