Jenkins & Rubenstein

[2009] FamCA 873

FAMILY COURT OF AUSTRALIA

JENKINS & RUBENSTEIN [2009] FamCA 873

FAMILY LAW – MARRIAGE – NULLITY – Lawfully married to another person at the time of marriage

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Ms Jenkins

RESPONDENT: Mr Rubenstein

FILE NUMBER: SYC 1064 of 2009

DATE DELIVERED: 25 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 25 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Kirkman, solicitor of Armstrong Legal

COUNSEL FOR THE RESPONDENT:

FOR THE RESPONDENT: In person

Orders

IT IS NOTED:

A.That the respondent is an Australian citizen.

B.That the Court is satisfied that the ground for nullity of marriage was proved.

IT IS ORDERED:

1. That the Court decrees that the marriage in fact solemnized on … February 2006 between Mr Rubenstein and Ms Jenkins at K, New South Wales is absolutely null and void.

IT IS FURTHER NOTED:

C.That the Court requests the Registry Manager to forward a copy of this file and orders to the Secretary, Attorney-General’s Department, Canberra.

IT IS NOTED that publication of this judgment under the pseudonym Jenkins & Rubenstein is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1064 of 2009

MS JENKINS

Applicant

And

MR RUBENSTEIN

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Jenkins for a decree of nullity of her marriage to Mr Rubenstein, solemnised on … February 2006 at K, New South Wales.  The application for a decree of nullity is not contested by the respondent.  The respondent has indicated from the Bar Table that he does not take any issue with the evidence which is contained within the affidavits of the applicant. 

2. The parties met in November 2003, and they commenced cohabiting in December 2003.  At this time the applicant knew the respondent as Mr V.  On 14 February 2005, the respondent took the applicant to his church, and proposed marriage to her.  In September 2005 the respondent changed his name to Rubenstein and had his birth certificate amended to that affect. 

3. The parties married on … February 2006 according to the rights of the Coptic Orthodox Church at K, New South Wales.  They have a child born in May 2007.  They separated on 11 December 2006. 

4. Some months after they separated the applicant discovered a letter addressed to the respondent enclosing an application for divorce and other documents.  From reading the documents, the applicant learned that the respondent had married a Ms G in April 2000 in China, and it was clear on the face of those documents that that was a marriage which had not at that time been dissolved.  Those facts are confirmed by the respondent as I have said.

5. I have had the benefit of seeing a copy of the Application for Divorce and supporting documents filed in the Federal Magistrates Court brought by Ms G.  There is a marriage certificate in what I presume is the Mandarin language.  Accompanying that marriage certificate is a document headed Certificate (Translation), and that on its face, purports to be a copy of a translation of the relevant marriage certificate.  On the face of that it appears that, as the wife had asserted in her evidence, that the respondent and Ms G married in China in April 2000. 

6. That marriage had not been dissolved at the time that the parties in these proceedings entered into their marriage on … February 2006.  Accordingly, in my view, the respondent was a person who had been lawfully married and remained lawfully married at the time that he entered into the marriage with the applicant in these proceedings. 

7. The application is on the basis that the marriage at K between these parties on … February 2006 is void. The ground relied on by the applicant is set out in s 23B(1)(a) of the Marriage Act 1961.  That provides, in effect, that amongst the grounds on which marriages solemnised in Australia are void, is where either of the parties at the time of the marriage was lawfully married to some other person.  I am satisfied that at the time the respondent married the applicant at K, New South Wales on … February 2006, he was still lawfully married to Ms G, having married her in China in April 2000.  In those circumstances, in my view, it is clear that the marriage between the parties at K on … February 2006 is void. 

I certify that the preceding seven (7) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              14 September 2009