JEWERS & MARCHAND

[2019] FamCA 123

FAMILY COURT OF AUSTRALIA

JEWERS & MARCHAND [2019] FamCA 123

FAMILY LAW – NULLITY – Pre-existing marriage to another person.

FAMILY LAW – EVIDENCE – Proof of pre-existing marriage – Effect of Certificate of Divorce pursuant to s 56 of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) ss 51, 56(2) and 56(3)
Marriage Act 1961 (Cth) s 23B

APPLICANT: Mr Jewers

RESPONDENT: Ms Marchand

FILE NUMBER: MLC 165 of 2010

DATE DELIVERED: 8 March 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mazengarb Family Lawyers

SOLICITOR FOR THE RESPONDENT: No attendance

Orders

1. The marriage solemnised at Town P Victoria on 26 October 2003 between the parties, Mr Jewers and Ms Marchand, also known as Ms L Marchand is declared to be 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 Jewers & Marchand 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 CANBERRA

FILE NUMBER: MLC 165 of 2010

Mr Jewers

Applicant

And

Ms L Marchand

Respondent

REASONS FOR JUDGMENT

1. An application is made for a Decree of Nullity for the marriage of Mr Jewers and Ms L Marchand solemnised in October 2003.

2. Ms L Marchand has not participated in the proceedings.  By judgment of 14 December 2018 a decision was made to dispense with service and particular orders were made in respect of service that were complied with. 

3. The Applicant, at the hearing of the matter on 14 January 2019, relied upon his affidavit of 2 May 2018 along with written submissions. In those submissions the Applicant correctly identified the legal framework to obtain a Decree of Nullity, the sole ground for which is the marriage being void (see s 51 the Family Law Act 1975 (Cth)). Void in this case is to be determined by the operation of s 23B of the Marriage Act 1961 (Cth) and in particular s 23B(1)(a) that provides that a marriage is void where either party at the time of the marriage was lawfully married to some other person.

4. In this case it was asserted that the Respondent was, at the time of her marriage to the Applicant, already married to Mr Marchand. The question as to whether or not the marriage to the Applicant is void turns on the proof of this assertion.

5. Initially to prove this matter the Applicant relied upon admissions that have been made to him by the Respondent that she had previously been married.  He further relied upon Annexure C to his affidavit being a certified copy of the Certificate of Marriage between Mr Marchand and Ms L Marchand.  That marriage was established as having taken place in October 1995 at Town Q in Victoria. 

6. Also annexed to his affidavit was a document entitled “Birth Certificate” that establishes that Ms M Thomas, born in October 1964, was also Ms L Marchand. That is, the Respondent has gone by the name L as well as by the name M, L being used in the marriage to Mr Marchand and M being used in the marriage to Mr Jewers.

7. A further affidavit from Mr Marchand was relied upon, filed 21 February 2019, setting out that he married the Respondent in October 1995. These matters were sufficient to show that the Respondent had married Mr Marchand prior to her marriage to the Applicant.  The remaining question was as to whether that marriage remained on foot at the time of the purported marriage to the Applicant.

8. In support of that the affidavit of Mr Marchand asserted that he had filed an Application for Divorce on 25 September 2007 with the order being made in December 2007 and he being divorced from the Respondent in January 2008. 

9. A Certificate of Divorce was annexed to the Applicant’s affidavit.  A question arose as to whether or not the Certificate of Divorce which showed that the divorce took effect from January 2008 could be relied upon as evidence that the Respondent remained married to Mr Marchand up until that date.

10. The Applicant identified s 56(2) the Family Law Act 1975 (Cth) which states:

    If a divorce order has taken effect, any person is entitled, on application to the Registry Manager of the court by which the divorce order was made, to receive a certificate signed by the Registrar of that court that the divorce order has taken effect.

    and 56(3):

    A certificate given under subsection (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, prima facie evidence of the matters specified in the certificate.

11. Accordingly, the Certificate of Divorce is sufficient to establish, by necessary implication, that the marriage was still on foot between Mr Marchand and the Respondent as at December 2007.

12. This means that it has been established that the Respondent was married to Mr Marchand at the time of her marriage to Mr Jewers in October 2003.  Accordingly, that marriage is void and supports a decree of nullity being made.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 March 2019

Associate: 

Date:  8 March 2019