JENKINS & ARCHER

[2013] FamCA 532

FAMILY COURT OF AUSTRALIA

JENKINS & ARCHER [2013] FamCA 532

FAMILY LAW – NULLITY – Where the marriage is declared null and void – Where one of the parties to the marriage was already married to another at the time of the marriage ceremony – Where the matter is referred to the Attorney-General’s Department.

Marriage Act 1961 (Cth) s23B(1), s94(1).
APPLICANT:	Mr Jenkins

RESPONDENT: Ms Archer

FILE NUMBER: BRC 9904 of 2012

DATE DELIVERED: Monday, 1 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: Monday, 1 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLennan

SOLICITOR FOR THE APPLICANT: Allan R De Brenni & Company

FOR THE RESPONDENT In Person

Orders

IT IS ORDERED THAT

1. The marriage solemnised at Location A, Suburb B, Queensland, Australia on … July 2009 between the Applicant Mr Jenkins and the Respondent Ms Archer, is declared to be null and void.

IT IS FURTHER ORDERED THAT

1. A Registrar of this Honourable Court forward a copy of my Reasons for Judgment dated 1 July 2013, together with a copy of the Affidavit material and the Applicant’s Summary of Argument dated 1 July 2103 and marked “B” to the Attorney-General’s Department under cover of a letter directing the Attorney-General to my comments in relation to the possible commission of a crime.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9904 of 2012

Mr Jenkins

Applicant

And

Ms Archer

Respondent

REASONS FOR JUDGMENT

1. On 28 March 2013, Registrar Coutts ordered that the application for nullity filed by Mr Jenkins on 30 January 2013 be listed in the judicial duty list for this morning.  The Registrar noted that the application for a decree of a nullity was not opposed. 

2. The parties commenced cohabitation sometime in early 2009 and entered into a marriage ceremony on … July 2009.  They separated on a final basis in around October 2011.  The material before me establishes that, at the time of the marriage ceremony between the parties on … July 2009, Mr Jenkins was still married to Ms C, that marriage having occurred in Canada.

3. Section 23B(1) of the Marriage Act 1961 (Cth) (“the Act”) provides that a marriage is void where either party is, at the time of marriage, lawfully married to some other person.

4. I find on the evidence that, as at … July 2009, Mr Jenkins was lawfully married to some other person – namely, Ms C.  The marriage between Mr Jenkins and Ms C was not dissolved until 31 days after July … 2012, a not insignificant period of time after the marriage between Mr Jenkins and the respondent.

5. I am satisfied, therefore, that the marriage between Mr Jenkins and the respondent is void. 

6. Section 94(1) of the Act provides that a person who is married shall not go through a form or ceremony of marriage with any person. The penalty prescribed is a maximum of imprisonment for five years.

7. On the face of the evidence before me, it appears that a crime may have occurred in that Mr Jenkins may have committed bigamy when on … July 2009 he went through a form or ceremony of marriage with the respondent.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 1 July 2013.

Associate:  

Date: 1 July 2013