Hoggard & Hoggard

Case [2022] FedCFamC1F 98

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hoggard & Hoggard [2022] FedCFamC1F 98

File number(s): BRC 8730 of 2021
Judgment of: CAREW J
Date of judgment: 4 March 2022
Catchwords: FAMILY LAW – NULLITY OF MARRIAGE – VOID MARRIAGE – Where the applicant was already married when he married the respondent – Where the applicant seeks a declaration of nullity – Where the first and second marriages were solemnised overseas – Where the issue of jurisdiction is considered – Where a marriage solemnised in a foreign country is recognised as valid under a local law – Where the second marriage is not recognised as valid under Australian law – Where the marriage is void – Where a decree of nullity is granted.
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

Marriage Act 1961 (Cth)

Explanatory Memorandum for the Federal Circuit and Family Court of Australia Bill 2019

Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019

Cases cited:

Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

In the marriage of Teves III and Campomayor (1995) FLC 92-578; (1995) 18 FamLR 844

Zau & Ruk [2014] FamCA 709

Number of paragraphs: 28
Date of hearing: 17 February 2022
Place: Brisbane
Counsel for Applicant Mr Van Der Weegan
Solicitor for the Applicant: D M E Law
Solicitor for the Respondent: Family Law Solutions

ORDER

BRC 8730 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR HOGGARD

Applicant
AND:

MS HOGGARD

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

4 MARCH 2022

IT IS DECLARED THAT:

The marriage solemnised between Mr Hoggard and Ms Hoggard (nee Ms D) in 2019 is not a valid marriage.

IT IS ORDERED THAT:

1.A decree of nullity in relation to the marriage solemnised between Mr Hoggard and Ms Hoggard (nee Ms D) in 2019 be granted.

2.The Application (Consent Orders) filed by Ms Hoggard on 28 September 2021 be referred to Registrar Gray for consideration. 

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoggard & Hoggard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

REASONS FOR JUDGMENT

CAREW J:

  1. At…

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Hoggard & Hoggard [2022] FedCFamC1F 98
Case
[2022] FedCFamC1F 98
Decision Date

CaseChat Overview and Summary

The case of Hoggard & Hoggard involved a dispute regarding the validity of a marriage between Mr. Hoggard and Ms. Hoggard, which was solemnised in Country E. The matter came before the court following a divorce between Mr. Hoggard and Ms. B, which was recognised in Australia. The central issue before the court was whether Mr. Hoggard’s marriage to Ms. Hoggard was valid under Australian law given that he was already married to Ms. B when he married Ms. Hoggard. The court had to determine whether the Marriage Act rendered the marriage between Mr. Hoggard and Ms. Hoggard void, based on the statutory provisions concerning the recognition of foreign marriages.

The court was required to interpret and apply sections 88D and 88G of the Marriage Act, which outline the circumstances under which a marriage solemnised in a foreign country is not recognised as valid in Australia. Specifically, the court had to ascertain whether the marriage between Mr. Hoggard and Ms. Hoggard was void because Mr. Hoggard was already married to Ms. B, a marriage that was recognised in Australia. The court also needed to consider whether a decree of nullity could be issued for such a marriage under section 51 of the Family Law Act.

The court found that the marriage between Mr. Hoggard and Ms. Hoggard was indeed void because Mr. Hoggard was already married to Ms. B, and that marriage was recognised in Australia. The court reasoned that if a marriage solemnised outside Australia is not to be recognised as valid under section 88D(2) of the Marriage Act, it is void for the purposes of Australian law. This interpretation was supported by the decision in Teves III and Campomayor, where it was held that a decree of nullity could be issued for a marriage that was not recognised as valid. The court concluded that the marriage between Mr. Hoggard and Ms. Hoggard was void, and a decree of nullity could be granted.

The court made a final order declaring the marriage between Mr. Hoggard and Ms. Hoggard void and issued a decree of nullity.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 88G of the Marriage Act provides:88G Evidence (1) A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by: (a)in the case of a marriage alleged to have been solemnised in a foreign country--an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or (b)in the case of a marriage alleged to have been solemnised under the law of a foreign country--an authority of that country; (c)is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates. Exhibit 1 in the proceedings is a certified copy of the marriage certificate between Mr Hoggard and Ms Hoggard providing prima facie evidence that the marriage solemnised between them in Country E was solemnised according to local law. In relation to that marriage, s 88D of the Marriage Act relevantly provides: 88D Validity of marriages…(2)A marriage to which this Part applies shall not be recognised as valid [in Australia] … if: (a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid; … Mr Hoggard and Ms B married in 2014 in Country F and they filed a joint application for divorce in 2019. A divorce order was made by the Federal Circuit Court of Australia (as that court was then known) on 7 June 2019 and took effect on 8 July 2019. It follows of necessity that the court was satisfied that the marriage between Mr Hoggard and Ms B (which was solemnised overseas) was recognised as a valid marriage in Australia. Accordingly, for the purposes of s 88D of the Marriage Act Mr Hoggard was, at the time of his marriage to Ms Hoggard, already a party to a marriage recognised as valid in Australia. In circumstances similar to the present case, Lindenmayer J in Teves III and Campomayor[7] found that a marriage that was required not to be recognised as valid (by virtue of s 88D(2)) was “void” within the meaning of s 51 of the FLA and held that a decree of nullity could issue. His Honour said from [22]: 22. At first I had some difficulty in accepting that submission because nowhere in Part VA of the Marriage Act is it provided that a marriage entered into in a foreign country is “void”, for the purposes of Australian law, in circumstances defined in s. 88D(2), but only that in those circumstances it “shall not be recognized [in Australia] as valid” (emphasis added). This may be contrasted with ss. 23 and 23B, which provide that a marriage to which either of those sections directly applies “is void” in those circumstances. However, on reflection, I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognize, as valid, a marriage solemnized in a foreign country, that court could refuse to declare the marriage invalid (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court's jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression “void” as the basis for a nullity application rather than , say “invalid” or “not valid”. In short, I conclude that if, in accordance with s. 88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is “void” within the meaning of that term as used in s. 51 of the Family Law Act. 23. Some support for that conclusion may be obtained from s.88F of the Marriage Act which provides: “88F Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question”. (As per the original)[7] (1995) FLC 92-578 at [22].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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