JL & PTL
[2006] FamCA 445
•1 June 2006
[2006] FamCA 445
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF3266 of 2005
BETWEEN:
JL
Applicant
AND:
PTL
Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE CARMODY
Date of Hearing: 10 February 2006.
Date of Judgment: 1 June 2006 in Chambers
Appearances: Mr Clutterbuck of Counsel, instructed by Barry & Nilsson, Solicitors, appeared on behalf of the Applicant
Mr Burridge of Counsel of Counsel, instructed by Biggs & Fitzgerald, Solicitors, appeared on behalf of the Respondent
Name of Case: JL and PTL
File Number: BRF3266 of 2005
Date of Hearing: 10 February 2006
Date of Judgment: 1 June 2006 (in chambers)
Coram: Carmody J
Catchwords: FAMILY LAW – DECLARATION – VALIDITY OF MARRIAGE – Necessary to prove “marital relationship” in order to bring application for property and/or spousal maintenance – Strength and modern status of common law presumption of marriage based on cohabitation and reputation only in absence of acceptable evidence of a formal ceremony allegedly celebrated overseas.
Legislation: Commonwealth Constiution ss 51(xii), 76, 77
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4(1), 6, 43(a), 71, 102, 104, 113
Marriage Act 1961 (Cth) ss 41, 44, 45, 46(1), 69(2), 88D(2), 88G
Cases considered: Attorney-General for the Commonwealth v Kevin and Jennifer (2003) FLC 93-127
Barriga and Barriga (1979) FLC 90-690
Bondarenko and Bondarenko (1967) 85 WN (Pt 1) (NSW) 676
Chief Adjudication Officer v Bath [2001] 1 Fam Law R 8
Elias and Elias (1977) FLC 90-267
Elliott v Totnes Union (1892) 57 JP 151
Gascoigne v Gascoigne [1918] 1 KB 223
Jacombe v Jacombe (1961) 105 CLR 355
Jordan and Jordan (1997) FLC 92-736
Kirby and Watson (1977) FLC 90-261
Kousal and Tack (2003) FLC 93-134
Latimour and Latimour (1979) FLC 90-635
Lauderdale Peerage Case (1885) 10 App Cas 692 (HL)
Lengyel v Rasad (1990) FLC 92-112
Lengyel v Rasad (No 2) (1990) FLC 92-154
Nelson v Nelson (1995) 184 CLR 538
Pazpena De Vire v Pazpena De Vire [2001] 1 FLR 460
Piers v Piers (1849) 2 HL Cas 331; [1843-60] All ER Rep 159 (HL)
R v Umanski [1961] VR 242
Rakauskas v Rakauskas [1962] VR 372
Re B (1983) FLC 91-332
Re Penington (decd) (No 2) [1978] VR 617
Re Shephard; George v Thyer [1904] 1 Ch 456
Re Taplin; Watson v Tate [1937] 3 All ER 105
Re Taylor [1961] 1 All ER 55
Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495
Sastry Velaide Aronegary v Sembecutty Vaigalie (1881) 6 App Cas 364
Sheludko v Sheludko [1972] VR 82
Ungar and Ungar (No 2) (1968) 11 FLR 301
W and T (1998) FLC 92-808
The parties commenced a relationship in the early 1990’s and allegedly participated in a marriage ceremony in a registry office in Ghana in 1997. The parties finally separated in March 2005.
Throughout the period of cohabitation, the parties referred to each other as husband and wife and were recognised socially as a married couple. The wife also changed her name on her passport, however the respondent alleged that the reason for doing so was out of convenience rather than as a result of being formally married. There was no credible evidence of an official Ghanian wedding certificate.
The applicant sought an order declaring a valid marriage between the parties for the purposes of bringing an application for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth).
Held:
1. While the evidence left no doubt that the parties lived together and passed themselves off as husband and wife over a reasonably lengthy period of time, it could not be said with sufficient certainty, especially in the absence of official documentation, that the parties were married to each other in any formal sense.
2. However, despite the absence of conclusive documentary proof, lack of witness credibility and inadequate circumstantial evidence, the applicant was entitled to rely on the common law presumption of marriage in order to prove the existence of a marital relationship.
3. The onus of invoking the common law presumption was on the applicant but, once established, it can only be displaced by convincing evidence to the contrary.
4. Conflicting and inconsistent statements of both parties at different times to immigration officials in Australia were insufficient to displace the presumption in this case.
The issue
This is a defended application for a declaration of validity of marriage under s 113 of the Family Law Act 1975 (the Act). It was prompted by the respondent’s assertion in response to a property settlement and spousal maintenance claim filed by the applicant under ss 78 and 79 of the Act that the parties were never actually married.
The law
The judicial power to declare the existence or validity of purported marriages celebrated in this country or abroad is uncontroversial.[1] The width and operation of the financial provisions in Part VIII of the Act, however, needs some explaining.
[1] cf par (b) of the definition of “Matrimonial Cause” in s 4(1) of the Act.
The effect of s 77 of the Constitution limits the legislative power of the Commonwealth Parliament to the “matters” mentioned in either of the preceding two sections.
The word "matter" in these provisions has been held to refer to "the subject matter for determination in a legal proceeding. [2]
[2] In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
A ‘matrimonial cause’ [3] is a ‘matter’ in respect of which Parliament can legislate by virtue of s 51(xii) and s 76 of the Constitution.
[3] A suit or action between spouses arising out of their marital relationship.
The Act itself confines the jurisdiction of the court to those matrimonial causes defined in s 4(1) of the Act and matters arising under the Marriage Act 1961 (Cth) [4], including proceedings between the parties to a marriage with respect to the maintenance or property of either of them.[5]
[4] Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 at 511.
[5] s 4(1)(c) & (ca) of the Act.
Thus, by virtue of the combination of these constitutional and definitional provisions the spousal maintenance jurisdiction conferred by s 74 and the power to alter property rights in s 79 of the Act apply only to proceedings between the parties to a marriage.
Clearly, failure to prove a marital relationship would be fatal to the wife’s property and maintenance claims. The centrality of this issue to the principal relief sought makes the exercise of the s 113 power both necessary and appropriate.
The law differentiates between married spouses and those who maintain other forms of intimate liaisons.
The historical and social notion of a ‘marriage’ was extensively discussed by the Full Court in Attorney-General (Cth) v Kevin and Jennifer[6] but for family law purposes it is generally regarded as a “ . . . union of a man and a woman to the exclusion of all others voluntarily entered into for life”. [7]
[6] (2003) FLC 93-127.
[7]s 43(a) Family Law Act. This definition is reproduced in ss 46(1) and 69(2) of the Marriage Act 1961 (Cth) and reflects both traditional and contemporary concepts.
The legal pre conditions for a valid marriage are set out in the Marriage Act 1961 (Cth).[8] Participation in some form of official wedding ceremony performed by an authorised celebrant involving aconsensual and mutual exchange of vows or commitments of lifetime fidelity and conjugal support in front of witnesses is essential for a valid marriage. The only legitimate way of dissolving a formal marriage is by decree.
[8] ss 41, 44 and 45; see also Re B (1983) FLC 91-332 and W and T (1998) FLC 92-808.
However, for the purposes of Ch. VIII of the Act a 'marriage' also relevantly includes any arrangement (a) commenced by a purported marriage ceremony in Australia whether “valid” or “void”[9]; (b) in the nature of a marriage recognised in Australia under the rules of private international law[10]; and (c) a marriage which has been dissolved or annulled or terminated by death in Australia or elsewhere.
[9]s 71 of the Act; cf Ungar and Ungar (No 2) (1968) 11 FLR 301; In the Marriage of Barriga (1979) FLC 90-690.
[10]See ss 6 and 104 of the Act and s 88D(2) of the Marriage Act 1961 (Cth). An overseas marriage will be recognised in Australia if it was valid under the local law of the jurisdiction in which it took place either at the time it was solemnised or when its validity falls for determination under s 88c(1)(a)(2)(a) in Part V A of the Marriage Act 1961 (Cth).
In Lengyel v Rasad[11], the plaintiff commenced State Supreme Court proceedings for relief under the De Facto Relationships Act 1984 (NSW) seeking a property adjustment. An issue arose as to the parties’ marital status. The action was then transferred to the Family Court. [12] The evidence before Nygh J was that the parties had undertaken what appeared to be a form of some sort of ceremony of marriage under Islamic law in Indonesia. There appeared to be no contemporaneous record or document in relation to the ceremony. Some three years later, a document was created certified by a Notary Public in Djakarta and signed by various parties which referred to the ceremony.
[11] (1990) FLC 92-112
[12] Lengyel v Rasad (No 2) (1990) FLC 92-154.
His Honour held [13] that the Family Law Act would displace the De facto Relationship Act if there had been a rite or ceremony of marriage between the parties, whether it created a valid marriage or a void marriage. He went on to rule that the proceedings related to a matrimonial cause as long as there was a ceremony of marriage even though it may have resulted in a void or invalid marriage. Nygh J found the document certified by the notary public was a record within s 102 of the Act but not s 88G of the Marriage Act because it did not comply with the requirements of that section. Thus, the Family Court had jurisdiction to determine the proceedings even though the marriage was void.
[13] at 78,074.
While not material in the context of this case it is interesting to note that even a polygamous marriage celebrated in another country is deemed to be a marriage for the purposes of family property division by s 6 of the Act.
The term “de facto relationship” is a popular term used to define a non-nuptial or civil partnership between a man and a woman cohabiting on a genuine domestic basis.[14] As of 1991, 9.7% of all Queensland couples lived in a de facto relationship. [15] The numbers appear to be growing.
[14] These days it can also include same sex partners.
[15] De Facto Relationship Commentary, CCH Australia Ltd (2006) at 11-120.
Marriages and de facto relationships have much in common and can be difficult to tell apart. Often they will both be deeply committed and enduring, involve a shared or even co-owned residence, sexual relations, and a degree of permanence as well as financial interdependence. Although such partners may describe themselves as ‘husband and wife’ and sometimes assume each other's name, they both know that they are not actually ‘married’ in the strict legal sense if only because there has been no marriage ceremony. [16]
[16] J.H. Wade, Void And De Facto Marriages (1981) 9 Syd L. Rev. 356.
A de facto relationship, unlike a marriage, can be effectively ended by the informal and unilateral withdrawal of a party without any legal pre-requisite.
All state jurisdictions (except Western Australia) have legislation enabling courts to adjust the property rights upon the breakdown of de facto or analogous unions on similar principles to those enjoyed by married spouses under Part VIII of the Act but there are still some important differences. Many benefits available to married partners federally are denied to their de facto counterparts. In Queensland, for instance, there is no general requirement to maintain a de facto wife and no provision for superannuation splitting because of constitutional limits.[17] Section 79 of the Act is an exhaustive code for determining property disputes between married persons whereas Pt 19 of the Property Law Act 1974 (Qld) permits de facto partners to call in aid pre-existing common law rights and equitable principles.
[17]However, New South Wales, Tasmania and the two territories afford spousal support rights to de facto partners including (except in Tasmania) homosexual partners.
Clearly, failure to prove a marital relationship would be fatal to the wife’s property and maintenance claims. The centrality of this issue to the principal relief sought makes the exercise of the s 113 power both necessary and appropriate.
The facts
The respondent was born in Australia in 1952. He was working in Africa in the 1990’s. The applicant was born in Ghana in 1959. She asserts that the parties cohabitated from 1993 to March 2005. She claims at par 4 of her Rule 15 affidavit that there was a marriage ceremony in a registry office in Ghana and a traditional ceremony and celebration later in the village in which they were living together.
She does not remember the precise date (allegedly because wedding anniversaries are not culturally significant in her country) but believes it to be 13 December 1997.
I note, however, that in par 19 of her trial affidavit the applicant refers to the marriage as taking place in mid-1997 while it is stated at paragraph 20 that she ceased work in September 1997 “after our marriage”.
The respondent admits that he and the applicant referred to each other as husband and wife, occupied married quarters and were treated by his employer and within the local community as spouses (even though they were not) but categorically denies anything in the nature of a wedding.
He also disagrees with the applicant’s version of when they met or commenced to live together. He acknowledges a sexual relationship dating back to May 1995 but insists that cohabitation did not occur before they relocated to Guinea on 26 or 27 November 1997. He says that neither of the parties returned to Ghana then until some time in January or March 1998.
Movement stamps on the applicant’s passport suggest, without definitely establishing, that she was out of Ghana on 13 December 1997.
In 1998 the applicant paid $US100 to a cousin of hers who worked in the passport office to change the name on her passport from her maiden name to the respondent’s name but the respondent claims that this was merely an expedient deception to enable the applicant to travel within Ghana as a ‘married’ rather than a single woman because it was easier for her to do so.
The parties holidayed in Australia in July 2000. While they were here the applicant applied to immigrate. Both of them informed departmental officials and signed documents confirming that they commenced a de facto relationship in 1995 but were not married. The form (PL 3) records the wife’s main language as English and her surname as that of the respondent.
In PL 6, a Statutory Declaration, the parties affirm that they were known and accepted in the village and by other ex pats as being in a de facto relationship. However, they go on to say that their friends in Australia accepted them ‘as a married couple’.
PL7 records the following comment by an interviewer:
Obviously committed couple. De facto relationship for five years plus.
Notably the applicant was still using her maiden name on travel documents in 2003 (PL 1).
However, there is a reference in Ex. 1 to a Ghanian wedding certificate dated 13 December 1997.
The applicant says the document is genuine. She claims to have tried to obtain a duplicate from the Ghanian Registry Office in January 2005 because she could not remember the date of the marriage when making the request. According to her the respondent retains possession of the only available copy.
The respondent testified orally that the certificate was a fake obtained years ago for the purposes of changing the name in the applicant’s passport from her maiden name to that of the applicant. Notably, no suggestion of that is made in the respondent’s trial affidavit.
He denies knowing where the bogus document is now and says he has not seen it since around the time of the application for permanent residency in 2000.
The evidence
As the alleging party the applicant has the onus of establishing the alleged marriage to my reasonable satisfaction on the civil standard, that is, the balance of probabilities.[18] All she has to prove is the celebration of a recognisable marriage ceremony at some point in time somewhere in the world. She can do this in a number of ways – (a) conclusively: by the production of an authenticated public record such as a marriage certificate or an entry in an official register; or (b) directly: through her own or other sufficiently cogent and credible testimony; and/or (c) inferentially: from proven circumstances consistent with or tending to confirm her assertion; and/or (d) presumptively: on the basis of cohabitation and reputation with or without a formal ceremony.
[18] s 140 Evidence Act 1995 (Cth).
There is also authority for the proposition that where both parties are still living and there is little or no reliable evidence of a ceremony, the testimony of the asserting spouse can be reinforced by cohabitation rather than a disputed marriage ceremony being proved by presumption.[19] The responsibility of the judge is to consider all the evidence and draw any inference which is fairly open on the proven facts and apply such aids including presumptions and rational inferences that may assist in arriving at that decision.[20]
[19] Jacombe v Jacombe (1961) 105 CLR 355.
[20] In the Marriage of Latimour (1979) FLC 90-635 at 78,322 per Connor J.
The applicant claims that a valid marriage certificate capable of putting the issue beyond doubt actually exists and can be found in the hands of her opponent. The respondent acknowledges that there was a document purporting to evidence a wedding but renounces it as a forgery which, he says, is now either lost or missing. The applicant has no copy and swears that she has tried but cannot obtain a replacement.
What is clear, however, is that if it is a forgery, the applicant was allowed by the respondent to use it to represent herself to others (including persons in authority) as his wife.
Wherever the truth may lie the respondent should not be allowed to take advantage of his own dishonesty.[21] Anyone seeking to be relieved against his own act or disbelieved on his own statements should fail on policy grounds alone. He simply cannot be heard to say that a certificate exists but is a fraudulent imitation.
[21] cf Gascoigne v Gascoigne [1918] 1 KB 223.
This is consistent with the so-called rule in Elias and Elias [22] which Chisholm J held in Jordan [23] can (not must) have the effect of preventing a party to litigation from claiming in court to the contrary of a prior out of court representation made to government agencies.
[22] (1977) FLC 90-267.
[23] (1997) FLC 92-736; cf Nelson v Nelson (1995) 184 CLR 538.
The production of a marriage certificate or other official document is perhaps the best and most common but certainly not the only acceptable method of proving a disputed marriage.[24] Oral evidence of the alleged ceremony may be given without production of any documentary proof in support[25] because the law understands that it may sometimes be difficult to produce primary documentary evidence especially in those countries where record keeping is lax or, at least, not as dependable or comprehensive as it is here.
[24] Rakauskas v Rakauskas [1962] VR 372.
[25] Sheludko v Sheludko [1972] VR 82 at 85.
The only available witness of the alleged ceremony is the applicant herself. The absence of any supporting affidavit from others said to be present is not satisfactorily explained except perhaps by distance or inadequate preparation.
I was singularly unimpressed by the applicant’s overall performance in the witness-box. I am not willing to merely accept her word that the marriage existed.
Her evidence on the issue is unsafe and unsatisfactory. There is simply not enough other forensic information for me to decide whether a ceremony constituting a marriage ever took place in Ghana. All I have is that there was some sort of (disputed) public event. There is no description of any of the formalities that were observed nor any indication of whether an exchange of vows was even involved. I do not know from the evidence what sort of ritual is capable of producing a valid marriage according to the local law of Ghana or, indeed, whether any ceremony or other formality is required at all.
Nor am I informed whether there was a celebrant or not. Curiously, no wedding photos of the happy couple or cards from well wishers are annexed. There is not a single memento or keepsake to act as a tangible reminder of such a significant occasion in the lives of these parties.
However, I do not believe the respondent's denial either. To put it bluntly I do not trust either of the parties enough to prefer the testimony of one over the other on credibility grounds.
While the evidence leaves me in no doubt that the parties lived together and passed themselves off as husband and wife over a reasonably lengthy period of time, I cannot be sure whether either or both ever actually considered that they were married to each other in any formal sense.
Even if it is genuine the applicant’s asserted belief that she was married to the respondent is no stronger than his to the contrary. Both states of mind are relevant but neither is decisive. The weight to be given to conflicting subjective views when trying to ascertain the true nature of a disputed domestic relationship is problematic at best.
Money is at stake here and both parties have equally strong but completely different motives to lie.
I am therefore left in the invidious position of being unable to reach a positive conclusion either way as to whether the parties were ever formally joined together as man and wife in a recognisable marriage ceremony in Ghana as the applicant alleges.
The applicant relies on the following as objective indicia tending to confirm the proposition that the parties were a married and not merely a de facto couple:
·Email dated 19 November 2004 where the respondent states “I thought I made it clear that you are my wife” and further “love from husband, [PTL]”;
·Letter dated 10 February 2004 from the husband in which he says, “Please find it in your heart to forgive me and welcome me home in March as your husband, so we can go ahead with our life together and grow old together just as we always planned. Love from your husband, [PTL]”;
·A document from the respondent’s employer dated 28 January 1998 – “Can you make available a salary advance for [PTL] and his wife [JL]. . .”;
·Letter dated 21 February 1998 – “My request is that [JL] be given the same medical treatment as any wife of an ex-pat living in a remote part of Africa would expect. Signed, [PTL]”;
·Letter dated 3 November 1998 by the respondent on official letterhead - “Please assist my wife, [JL], to have her passport changed from surname [M] to surname [L]. . .”
Although voluntary statements against the pecuniary interests of a party are often regarded by the law as evidence of the truth of their contents the evidence here taken at its highest is decidedly ambiguous and no more corroborative of a marriage than a de facto relationship. This is because both parties admit to having made false or misleading representations about their marital status in the past as and whenever it suited their own interests.
The probative force of these statements even when reinforced by the fact of cohabitation is insufficient to support a positive probability finding of marriage. The opposite conclusion is equally open.
Accordingly, I am not reasonably satisfied that the parties were ever married in conformity with the common law rules of private international law.
That, however, is not the end of the matter because even though there is no conclusive documentary proof, credibility is lacking and the cumulative effect of the circumstantial evidence is inadequate, reliance may legitimately be placed by an applicant attempting to prove a disputed matrimonial relationship on the common law presumption of marriage arising from cohabitation and repute [26] which the authors of Conflict of Laws in Australia [27] say applies 'equally applicable to marriages celebrated abroad'.
The presumption of marriage [28]
[26] Re Taplin; Watson v Tate [1937] 3 All ER 105; RePennington (decd) (No 2) [1978] VR
617.See also Chief Adjudication Officer v Bath [2001] 1 Fam Law R 8 and cf
Sheludko v Sheludko [1972] VR 82.
[27] Nygh P E & Davies M, Conflict of Laws in Australia, 7th ed, Butterworths,
Sydney, 2002 at 318.
[28]See generally, Bates F, ‘The Presumption of Marriage Arising from Cohabitation’ (1981) 4 Uni of WA Law Rev 166-171; Bates F, ‘The Presumption of Marriage in Australia - The end in sight?’ (1979) Uni of WA Law Rev, 341-353; Borkowski A, ‘The Presumption of Marriage’ (2002) Child and Family Law Quarterly, 251.
There are three distinct presumptions to consider. The first two relate to the formal and essential validity of a proven marriage ceremony. Neither of these are relevant here because as I have already said I am not convinced that any kind of ceremony was ever celebrated. The third presumption arises on proof that a couple cohabited as man and wife and enjoyed the social reputation of being married. This assumption is quite different from the other two because rather than assuming validity on the strength of an antecedent marriage celebration it presumes both the existence and validity of such a ceremony despite the absence of any clear evidence of one ever having taken place.[29] This is the presumption that I am concerned with here.
[29] Byrne D & Heydon J D, Cross on Evidence, 4th Aust Ed, Butterworths, Sydney, 1991 at 240
[7360].
In Pazpena De Vire v Pazpena De Vire[30], a Deputy Judge of the High Court said:
Ordinarily, proof of the marriage certificate is sufficient to satisfy the court . . but it has long been the position in English law that the absence of a valid marriage certificate is not fatal to a proceedings. Even where there is no direct evidence of the marriage ceremony or, indeed, no evidence of formal registration, the law does not presume against the evidence of a valid marriage.”
[30] [2001] 1 FLR 460 at 463.
In the leading case of Piers v Piers[31] the House of Lords presumed the formal validity of a marriage celebrated in a private residence notwithstanding that there was no evidence of a licence required by regulation having been granted.
[31] (1849) 2 HL Cas 331; [1843-60] All ER Rep 159 (HL).
Piers has been cited as authority for upholding the formal validity of marriage in cases in which there isinsufficient evidence of a ceremony of any sort. [32]
[32] Re Shephard; George v Thyer [1904] 1 Ch 456.
In the Australian context Dixon CJ held in Jacombe v Jacombe:
. . . proof that the parties lived together and were accepted as man and wife raises a presumption that they were validly married . . . which is rebuttable only by clear and cogent evidence and . . . it is another element to be taken into account in considering whether or not the circumstances as a whole suffice to prove the marriage. [33]
[33] (1961) 105 CLR 355 at 360 (Fullagar and Menzies JJ agreeing).
Thus cohabitation and reputation amount to sufficient prima facie proof of a lawful marriage notwithstanding the paucity of other evidence that the parties underwent any kind of formal ritual.
The proposition was originally devised to facilitate proof of marriage in days before efficient systems of registration of public documents when habit and reputation were more accurate than official records.
It also acted as a protection against gossip or innuendo and relieved against potential hardships faced by deserted wives or widows and their children in estate and social security disputes.
The presumption has its genesis in the advice of the Privy Council in Sastry Velaide Aronegary v Sembecutty Vaigalie that:
“Where a man and woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they are living together in consequence of a valid marriage and not in a state of concubinage”. [34]
[34] (1881) 6 App Cas 364 at 371.
The legal principle is expressed in Halsbury as follows:
‘Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no positive evidence of any marriage ceremony having taken place particularly where the relevant facts have occurred outside the jurisdiction; and this presumption can only be rebutted by strong and weighty evidence to the contrary.’
The difference between the presumption of marriage without ceremony and the presumption of marriage following a ceremony is that cohabitation and reputation is required for the latter but not the former. This important difference can be justified on the ground that when no ceremony can be proven, it makes sense to insist on something more than just cohabitation as husband and wife.’ [35]
[35] Halsbury’s Laws of England (Butterworths) 4th Ed. 2001 at par 142.
Thus, most cases in which the presumption applies involve either children of the alleged marriage or cohabitation of a great length of time.
Unsurprisingly, the longer the period of cohabitation the stronger the implication and the more potent the presumption.
The marriage in Re Shepherd; George v Thyer[36] seems to have been saved by the length of cohabitation and the existence of children. Kekewich J refused to invalidate the marriage despite clear evidence that it was not recognised by the law of the place where it had taken place. To his Honour “something like a ceremony” and “some kind of certificate” were sufficient to confirm the marriage.
[36] [1904] 1 Ch. 456.
In Re Taplin; Watson v Tate [37], it was proved that a Queensland solicitor had lived with a woman as his wife for nearly 20 years. The birth certificates of the children referred to a marriage in Victoria where the local law required registration. A valid marriage should be assumed even though no ceremony had ever been registered there.
[37] [1937] 3 All ER 105.
In that case (as in the vast majority of instances in which reliance is placed on the presumption) the parties were dead but the inference has also been successfully invoked where one or both of them was alive.
In Elliott v Totnes Union[38], for example, a man contested a claim for maintenance of a child on the ground that he had never married its mother (since deceased) but his testimony was disbelieved and the marriage was presumed from cohabitation and repute despite no ceremony being shown to have taken place.
[38] (1892) 57 JP 151.
Admittedly, none of the traditional policy rationales underlying the presumption are present here but there is no doubt that the presumption continues to form an integral part of the family law in this country. And it is stronger than might be supposed.
In Sheludko v Sheludko[39] Crockett J considered a petition for a dissolution of marriage on the ground of separation or alternatively, a decree of nullity. The respondent denied that the parties ever went through a ceremony of marriage or, if contrary to his primary position it was found that they did, then he argued it was not in accordance with the legal requirements of the place where it was performed.
[39] [1972] VR 82.
The undisputed facts were that the parties had lived together for almost 19 years and had gained a reputation in the eyes of the community in which they lived as being a married couple with children.
According to the petitioner the parties cohabited continuously from the date they were married in eastern Poland in 1943 until final separation in Australia in 1962.
The respondent claimed that the parties merely pretented to be married to protect the petitioner from being molested by German officers during the Second World War and they simply continued to live together after hostilities ended.
The applicant was unable to produce a record of the marriage because he did not receive a certificate at the time of the alleged ceremony and was unable to subsequently obtain one because the relevant information was lost or destroyed during the war.
The respondent stated in official documents when migrating to Australia in 1949 that he had married on 15 February 1943.
Crockett J held that:
The petitioner does not, it appears to me, have to rely merely on the question of who is to be believed between her and the respondent by recourse either to credibility or probabilities in relation to the question of whether there was a marriage. Even if (contrary to the finding of fact made by me [that the ceremony took place as described by the wife]) I were left by the evidence in a state of indecision as to whether she went through a form of marriage ceremony the lengthy period of cohabitation during which the parties lived and were known as man and wife entitles the petitioner, in my view, in law to rely on a presumption that they are husband and wife.
. . .
Further, during this period the respondent has persistently and consistently (on occasions by declaration) averred that he is married . . . to the petitioner. He has at all times held her out as a wife. His children have been baptised and named after his name. He has permitted them to be born in circumstances where one ought to presume that his desire and belief was that they would be legitimate and not illegitimate. He has lived with his consort in circumstances where one would assume he would wish her to be a wife and not his concubine. In a period of cohabitation as long as that with a reputation of being married persons existing for such a period in such circumstances in many different communities with the respondent’s constant assertion of being a married man, it would require in my view, the strongest evidence of the greatest cogency on the part of the respondent to rebut the presumption of a valid marriage which, in my view, in law exists.
Jenkyn J reached the same result on similar facts in Bondarenko and Bondarenko [40]. The only material difference between the two cases was that the applicant in Bondarenko was such a poor witness that his evidence about the disputed ceremony was given little or no credence.
[40] (1967) 85 WN (Pt 1) (NSW) 676.
His Honour relied on a statement of Lord Evershed M.R. in the English case of Re Taylor [41] to conclude that even a strong suspicion that a marriage might not have taken place is insufficient to displace the presumption in the context of a cohabitation of at least 15 years which resulted in the birth of a child.
[41] [1961] 1 All ER 55; [1961] 1 WLR 9.
Thus, even in the permissiveness of the modern age this aging presumption is still powerful enough to validate disputed marriages that either cannot be otherwise proven or appear to have been performed imperfectly.[42]
[42] cf Russell v Attorney-General [1949] P 391.
Watson SJ expressed the opinion in Kirby and Watson[43] that the presumption can be taken too far and litigation is best resolved by applying the ordinary rules of common sense as to inferences to be draw from known facts. [44]
[43] (1977) FLC 90-261 at 76,403.
[44] RePennington (decd) (No 2) [1978] VR 617 at 630. For more detailed comment
on this case, see Bates F, ‘The Presumption of Marriage Arising from Cohabitation’
(1981) 4 Uni of Western Australia Law Review 166.
There is obvious merit in this observation but in Kousal and Tack the appellate division of this court recently adopted the reasoning of Corbett J in Sheludko holding that irrespective of any credit finding the law would presume a marriage, valid or void, from lengthy cohabitation and reputation especially where the contradictor had confirmed his marital status when providing details to government entities.[45]
[45] (2003) FLC 93-134
It is usually said that the presumption of a valid marriage ceremony arising from cohabitation and repute must be rebutted by “clear and cogent proof”. [46]
[46] Jacombe v Jacombe (1961) 105 CLR 335 at 360.
According to Lord Campbell in Piers this presumption must be met with “… strong, distinct and satisfactory disproof and can be displaced only by disproving every reasonable possibility . . . of any supposition that can be suggested to support the validity of the marriage.”
Sir Jocelyn Simon in the Lauderdale Peerage Case[47] considered that the presumption:
… cannot be rebutted by evidence which merely goes to show on a balance of probabilities that there was no valid marriage : it must be evidence which satisfies beyond reasonable doubt that there was no valid marriage
[47] (1885) 10 App Cas 692 (HL).
However the application of the criminal standard of this proof of marriage and civil litigation is open to question[48] especially in light of the provisions of s 140 of the Commonwealth Evidence Act.
[48] cf R vUmanski [1961] VR 242.
49 [2001] 1 Fam Law R 8.
Ironically, a presumption which calls for compelling evidence to refute a presumed legal fact may have the unintended consequence of validating a marriage in circumstances where none might ever have, in fact, taken place. It may also have the effect of regularising obviously defective marriages in the interests of justice and equity.
In Chief Adjudication Officer v Bath [49], for instance, the parties lived together as a married couple having two children until the husband died in 1994. During his lifetime, he had paid income tax and social security contributions of a married man. After his death, the respondent applied for a widow’s pension. This was refused on the grounds that she was not a widow because there was no evidence of a valid marriage ceremony due to non-registration. The Social Security Appeal Tribunal validated the marriage in reliance on the common law presumption and on the basis that marriages entered into in good faith should be upheld wherever possible. It was argued on appeal that the presumption of marriage arising from cohabitation was unambiguously and compellingly rebutted by the finding that the marriage was held on unregistered premises and formal defects should not be ignored or ‘cured’ retrospectively by the expedient (and, semble, inappropriate) use of the presumption.
The Court of Appeal held that the parties were validly married because they believed that they were and were unaware of the failure to comply with registration requirements.
It would be unjust and contrary to the general policy of the law, the Court said, to refuse to give the benefit of a presumption which would have applied if there was no evidence of any ceremony at all in a case where there was a bona fide but faulty formal ceremony followed by a long period of cohabitation.
The conclusion
I am not satisfied on the basis of the testimonial evidence of the applicant that a marriage ceremony took place in Ghana in 1997.
I cannot be sure whether the marriage certificate referred to in the immigration file is a genuine one or a forgery. It has not been produced and therefore cannot be examined. I do not know whether it is in the respondent’s possession or under his control or whether the wife has it but will not produce it because it will undermine her case. I am uncertain whether it cannot be produced because it does not exist (because there was never any ceremony to record) or for the reasons given by the wife. Consequently I am not persuaded that there is, in fact, an authentic record or certificate in existence capable of proving the celebration of such a valid marriage.
If the certificate mentioned in Exhibit 1 is a forgery neither party can deny or disavow it under the Elias principle because both were complicit in its fabrication and used it to government officials for their own dishonest purposes.
While not as long as the period of cohabitation involved in some of the older cases referred to earlier there is clear evidence that the parties lived together in a sexual relationship for a substantial length of time. The respondent concedes 7 years. The applicant alleges more than 12. The parties allowed others to think they were husband and wife. Admittedly, on occasions they also held themselves out to the world as a de facto couple but I am not able to decide whether it is because that is indeed what they were and how they both saw themselves or whether the respondent alone subjectively believed this while the applicant considered herself to be married.
Neither of the parties can be believed. The inferences arising from established primary facts do not resolve the question about whether there was a recognisable marriage ceremony or not. Thus, the combined effect of the testimonial and circumstantial evidence leaves me in a state of indecision in relation to the ‘marriage’ issue. My mind is intractably neutral on the point.
Nonetheless, according to the decided cases the applicant is entitled to raise and rely on the common law presumption which reverses the onus of proof and can only be displaced by convincing evidence to the contrary.
The 2000 statutory declarations are the most cogent evidence in the respondent’s favour. These forms are all completed in the respondent’s handwriting but signed by both parties. The applicant says that her ability to read and write English in 2000 was very limited and that she relied on the respondent to provide correct information. The respondent disputes this. He says that the applicant was educated in English at school and has never had any difficulty understanding or writing English. He says they have always conversed in English. Admittedly, the applicant gave her evidence in heavily accented but nonetheless reasonably fluent English. I am satisfied that she probably understood the language reasonably well back in 2000.
The question is whether the declarations of the parties made in 2000 are compelling enough to displace the presumption and to satisfy s 140 of the Evidence Act? They might be if the wife knew what representations were being made by the respondent about their marital status and acquiesced in them. She may well have but even so the statements are just as likely to have been false as true. Still I do not understand at all why it would be in the interests of either of them to give conflicting information about their marital status to different officers of the same government department on separate occasions. If they wanted the immigration office to believe that they were de facto partners then there was no point in mentioning the existence of a Ghanian marriage certificate regardless of whether it was genuine or a fake. Indeed, there was every reason not to. It just goes to show that the problem with proven or admitted liars is you never know whether they are lying when they swear that they are telling the truth, or telling the truth when admitting that they are lying.
All in all I am not satisfied that the respondent has discharged the onus on him of displacing the presumption.
I am therefore prepared to declare for the purposes of Section 113 of the Family Law Act 1975 that the parties are married but I cannot say whether it was in Ghana on 13 December 1997 or some other time. All I have on the date is the word of the applicant who I do not believe and a hearsay record of a dubious marriage certificate. My power under s 113 is limited to making a declaration ‘as is justified’. There is no appearent justification in this case for specifying a date or place of marriage.
The response will be dismissed.
Consequently the respondent will not be relieved of his undertakings not to dispose of any disputed property pending determination of the s 79 proceedings.
I certify the preceding105 numbered paragraphs
are a true copy of the reasons for judgment
of the Honourable Justice Carmody
Dated the 1st day of June 2006.
Associate.
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