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:
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CaseChat Overview and Summary
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.
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