KADAR and GYUSZI

[2017] FCWA 133

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: KADAR and GYUSZI [2017] FCWA 133

CORAM: O'BRIEN J

HEARD: 16 JUNE 2017

DELIVERED : 17 OCTOBER 2017

FILE NO/S: PTW 3657 of 2016

BETWEEN: MR KADAR

Applicant

AND

MS GYUSZI
Respondent

Catchwords:

DECLARATION - Validity of marriage - Where the parties were married in a refugee camp in circumstances of war - Where it was impossible for the parties to register their marriage in the manner required for it to be recognised pursuant to local law - Where the marriage would be recognised as valid pursuant to common law principles but for the fact that the wife was not of marriageable age at the date the marriage was solemnised - Distinction between exception as to marriageable age where marriage valid under local law, and exception where reliance is placed on common law principles.

Legislation:

Acts Interpretation Act 1901 (Cth), s 15AA
Family Law Act 1975 (Cth), s 113
Evidence Act 1906 (WA), s 71
Marriage Act 1961 (Cth), s 11, s 88C, s 88D, s 88E
Migration Act 1958 (Cth), s 12
Sex Discrimination Amendment Act 1991 (Cth)
Marriage Amendment Bill 1985 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: No Appearance

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Arun & Baktahri [2013] FamCA 542

Buciu v Sabau (1997) FLC 92-765

Eldalah [2016] FamCA 1103

Hooshmand and Ghasmezadegan (2000) FLC 93-044

Jacombe v Jacombe (1961) 105 CLR 355

Lester & Lester (2007) FLC 93-308

Milder v Milder [1959] VR 95

Mills v Meeking (1990) 169 CLR 214

Nygh v Kasey [2010] FamCA 145

Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111

Solomon and Hatti (unreported, Supreme Court of New South Wales, Court of Appeal, 10 February 1987)

Trevisan (trustees of the Forli Pty Ltd Superannuation Fund) v Federal Commissioner of Taxation (1991) 101 ALR 26

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Kadar] (“the husband”) filed an application on 27 June 2016 seeking a divorce order to end his marriage to [Ms Gyuszi] (“the wife”). The application was properly served and the wife took no steps to respond or oppose it.

2The application came on for hearing before a Registrar on 2 September 2016 and was adjourned generally, when the Registrar was unable, on the evidence then available, to make the necessary finding that the parties had been validly married.

3On 30 November 2016, the husband filed an application seeking a declaration as to the validity of the marriage. That application was properly served on the wife; again, she has taken no steps to respond or oppose it.

4The application was adjourned on two occasions to give the husband the opportunity to provide the necessary evidence to support it. He was assisted by the court to source a lawyer with the relevant background to advise him.

5The matter came on for hearing before me on 16 June 2017.

Relevant background

6The parties are [Country C] refugees who migrated to Australia in 1995. Their background prior to their immigration is complex and tragic.

7Both parties were born in [Country A]. The husband was born in 1965 and the wife was born in 1974. War between Country A and [Country B] broke out in 1961 and continued for 30 years.

8When the husband was 10 years old, his family fled Country A to Country C. They became refugees at [a refugee camp] (“the refugee camp”).

9The husband and his family were still living in the refugee camp 10 years later, when the wife and her family arrived there, having also fled from Country A. The wife was then 11 years old.

10[In] 1989, the parties participated in a marriage ceremony in the refugee camp. The husband was 23 and the wife was 14. The ceremony was conducted by a clergyman of the Refugee Orthodox Church, before witnesses. A marriage certificate was issued by the Refugee Orthodox Church and is in evidence.

11The marriage was not registered pursuant to the laws then applicable in Country C, in circumstances outlined in more detail later in these reasons.

12The parties lived together for 24 years after their marriage ceremony, and have five children together. The eldest of those children is 27 and the youngest is 12.

13The parties separated on 13 February 2013. They have not resumed cohabitation since, and they have made proper arrangements for the two children who are still under the age of 18.

The law

14Section 113 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides, by reference to the definition of matrimonial cause in sub-s 4(1), that the court may make a declaration as to the validity of a marriage.

15The law regarding the recognition of foreign marriages is found in Pt VA of the Marriage Act 1961 (Cth) (“the Act”). The object of Pt VA is to give effect to Chapter II of the Convention of Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978 (“the Convention”). Within Part VA, s 88D(1) of the Act provides that “subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid”. Subsections (2), (3), (4) and (5) provide exceptions to s 88D(1) which are not relevant for present purposes.

16Section 88C of the Act is as follows:

(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:

(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or

(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country:

(i)under the law of that other foreign country, the marriage was, at the time when it was solemnised, recognised as valid; and

(ii)at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law.

(2)Where a marriage (not being a marriage referred to in subsection (1)) that was solemnised, whether before or after the commencement of this Part, in a foreign country:

(a)is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the local law; or

(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law—is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the law of that other foreign country;

this Part applies to and in relation to the marriage from and including that time.

17Accordingly, a declaration of validity of the marriage between the parties may be made if I am satisfied that, at the time the marriage was solemnised, it was recognised as valid under Country C law, or would now be so recognised by virtue of subsequent laws enacted in Country C.

18If I am not satisfied that the marriage is or was recognised as valid under Country C law, a declaration of validity may still be open by reference to s 88E of the Marriage Act.

19Section 88E of the Marriage Act states:

(1)Subject to subsection (2), a marriage solemnised in a foreign country that would be recognised as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this subsection to be recognised as valid shall be recognised in Australia as valid, and the operation of this subsection shall not be limited by any implication arising from any other provision of this Part.

(2)Notwithstanding subsection (1), a marriage of a person domiciled in Australia, being a marriage solemnised in a foreign country, shall not be recognised in Australia as valid if, at the time of the marriage, either party to the marriage was not of marriageable age within the meaning of Part II.

(3)Where a marriage solemnised in a foreign country is not required by virtue of this Part to be recognised in Australia as valid, this Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a state or territory, that provides, expressly or impliedly, for such a marriage to be recognised as a valid marriage for the purposes of the law in which the provision is included.

(4)This Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a state or territory, that deems a union in the nature of a marriage to be a marriage for the purposes of the law in which the provision is included.

Issues for determination

20Three questions arise:

(1)Whether the marriage was recognised as valid under Country C law;

(2)If not, whether the marriage would be recognised as valid under the common law rules of private international law; and

(3)In either case, whether the age of the wife at the time of the marriage ceremony would nevertheless preclude the recognition of the marriage as valid in Australia.

Validity of the marriage under Country C law

21The husband relied on an affidavit sworn by [Mr K]. Mr K is an Australian citizen of Country C origin who is now a practising lawyer in Western Australia. While he was able to provide helpful evidence as to the requirements for a valid marriage in that country, he did not profess to be expert in Country C law.

22The general rule is that foreign law must be proved by an expert witness: Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111 at [116]; Hooshmand and Ghasmezadegan (2000) FLC 93-044. In certain circumstances, the court may refer to “printed books purporting to contain statutes, ordinances, or other written laws in force in any country… for the purpose of ascertaining the laws in force in such country”: Evidence Act 1906 (WA) s 71. No such material was before me. Nevertheless, as will be seen, the issue of Mr K’s expertise need not be determined.

23Mr K described the process to be followed by a member of the Orthodox Church seeking to be married in Country C at the relevant time, and the steps to be taken by the church prior to the ceremony. He confirmed the requirement for two witnesses from the congregation to be present at the ceremony; that requirement was met in this case.

24Importantly, he described the civil process required for a marriage performed in a religious ceremony to be recognised pursuant to the laws of Country C at the relevant time. He explained that it was necessary for the marriage to be registered at the Country C Ministry of foreign affairs in order to be valid outside Country C. For the purpose of internal recognition, the marriage certificate issued by the church was required to be sent to a particular government department for approval and then on forwarded to a court for verification.

25In his own affidavit, the husband acknowledges that neither process was followed. I note further that there is no evidence before me as to any relevant marriageable age under Country C law.

26Accordingly, even accepting the evidence presented by the husband at its highest I am unable to conclude for the purposes of s 88C of the Marriage Act that the marriage was recognised as valid under Country C law at the relevant time.

27There is no evidence before me as to whether any subsequent law was passed in Country C which would retrospectively affect the validity of the ceremony undertaken by the parties for the purpose of s 88C(2).

The common law rules

28The question then arises as to whether the marriage should nevertheless be recognised as valid in Australia pursuant to s 88E. The determination of that question requires a consideration of whether the marriage would be recognised as valid under the common law rules of private international law.

29The common law presumption of the validity of a marriage was expressed by the High Court in Jacombe v Jacombe (1961) 105 CLR 355 at p 359 in the following terms:

This is a case where the performance of the marriage ceremony was followed by the parties living together as man and wife for seventeen years. The performance of a marriage ceremony itself raises a presumption of the validity of the marriage and upon this point it is not necessary to do more than cite from the judgment of the present Chief Justice in Axon v. Axon [1937] HCA 80; (1937) 59 CLR 395: "Upon proof that a marriage ceremony had been duly performed between herself and the respondent a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony" (1937) 59 CLR, at pp 403, 404. Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec'd. (1961) 1 WLR 9) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so.

30The broader requirements of the common law for a marriage ceremony to be recognised as having been duly performed are summarised and discussed in Hooshmand and Ghasmezadegan (supra). It is unnecessary to discuss them further in these reasons; it is sufficient to say that they were met in this case.

31The Full Court of the Family Court of Australia in Lester & Lester (2007) FLC 93-308 at [53] referred to Solomon and Hatti (unreported, Supreme Court of New South Wales, Court of Appeal, 10 February 1987) where McHugh JA said (emphasis removed):

…Once it is proved that a marriage ceremony was duly performed, a strong presumption arises that the ceremony ended in a lawful marriage between the participants.… If the parties have gone through a ceremony of marriage and also lived together and acquired a reputation as husband and wife, the presumption that they are lawfully married is strengthened.

32The presumption would potentially be conclusive in circumstances where the only difficulty arose because formal proof of the marriage was not available and particularly where no contrary evidence was adduced; in this case, however, it is conceded that the formal requirements for the marriage to be valid under the laws of Country C were not met.

33The presumption may nevertheless potentially assist in the consideration of whether for the purposes of s 88E the marriage would be recognised under the common law rules of private international law.

34At common law, a marriage is valid if it conforms with the law of the place of celebration. The common law also permits the recognition of a marriage as valid in circumstances where “…compliance with the law of the place of celebration is to be regarded as impossible, whether because there is no law in force there, or because facilities are denied, or because compliance would be against conscience…”: Milder v Milder [1959] VR 95 at p 98.

35The Convention permits contracting States to extend the law of the place of celebration and as Faulks DCJ observed in Nygh v Kasey [2010] FamCA 145 at [59] “…appears to be part of the broader objective of recognising the validity of foreign marriages wherever that is reasonable to do so”. His Honour expressed the view at [61] that:

Considered in that context, it would appear that s 88E(1) is designed to extend the range of marriage[s]… which ought to be recognised in Australia pursuant to the Marriage Act 1961 (Cth).

36Accordingly, recourse may be had to s 88E of the Act in circumstances where s 88D does not apply to the marriage in question, but the evidence supports a conclusion that the failure to comply with the local law was because it was impossible for the parties to do so, and the marriage would otherwise be recognised at common law. Conversely, where it cannot be concluded that the failure to comply with the local law arose because it was impossible for the parties to comply, recourse to s 88E to support the recognition of the marriage may be problematic, as the common law principles themselves relate primarily to compliance with local law.

Application of the common law rules

37The parties participated in a religious marriage ceremony conducted by an ordained minister, in the presence of witnesses. They cohabited thereafter for 24 years and had five children together, and their public reputation from the date of the ceremony was that of husband and wife. That public reputation extended to acceptance by the Australian Government Department of Immigration and Border Protection of their status as a married couple. The marriage ceremony was “duly performed” and the presumption arising from their conduct and the public reputation of their relationship applies.

38As already noted, however, the requirements of the local law for the marriage to be recognised as valid in Country C were not met.

39The further issue requiring determination is whether the circumstances of the parties were such that compliance with those requirements was impossible. The husband gave evidence of the political and civil issues faced in Country C at the relevant time. He said that civil war broke out in 1983 after the then president introduced Sharia law to Country C, leading to conflict with the largely Christian Country C People’s Liberation Army in southern Country C. While the warfare started in southern Country C, it spread to the rest of the country. The conflict lasted until 2005 with staggering loss of life.

40The husband explained further that in July 1987 the then Prime Minister declared a state of emergency in Country C, leading to the establishment of military emergency zones in which the military were given extremely wide powers under emergency regulations. That in turn led to significant restrictions on freedom of movement, particularly for refugees. On the husband’s evidence, he and his wife were not able to leave the refugee camp.

41The government was then overthrown in a military coup in June 1989. The [Governing Body A] declared an even more restrictive state of emergency, giving it the power to appropriate land and property, impose travel bans and restrictions, and ban any organisation, demonstrations or work stoppages. Wide powers of arrest and detention were also enforced. An example illustrative of the political and social climate is the revision to the emergency powers made in November 1989, imposing capital punishment for the offence of organising a strike.

42On the husband’s evidence, the Governing Body A began instituting Sharia law and abolished political parties in 1990.

43The evidence of Mr K in relation to those matters, while less detailed than that of the husband, painted the same picture. In particular, he confirmed that the 1987 state of emergency put severe limitations on people’s freedom of movement, most particularly refugees. He confirmed that at the relevant time refugees such as the parties would have been completely unable to leave their camp.

44I am satisfied on the evidence presented that it was impossible for the parties to take the necessary steps to register their marriage for the purposes of Country C law at the relevant time.

45Accordingly, I am satisfied that while the marriage is not required by s 88D to be recognised as valid, the common law rules of private international law would support its recognition.

46The question then remains as to whether, notwithstanding that finding, the marriage is to be recognised in Australia in circumstances where at the date of the marriage ceremony the wife was not of marriageable age.

The relevant marriageable age

47Section 11 of the Act as presently enacted provides for a marriageable age of 18 years. Prior to the amendments enacted by the Sex Discrimination Amendment Act 1991 (Cth) (“the Amending Act”) s 11 provided for a marriageable age of 18 for males and 16 for females.

48Section 3 of the Amending Act provided that those amendments did not apply to marriages solemnised before the commencement of Pt 3 of that Act. Part 3 of the Amending Act commenced on 1 August 1991.

49Accordingly, the marriageable age applicable to the wife in these proceedings is 16 years. At the date of the solemnisation of the marriage, the wife was 14 years old.

The issue which arises

50The circumstance whereby one of the parties to the marriage was not of marriageable age at the date the marriage was solemnised gives rise to an exception to what would otherwise be the recognition in Australia of the validity of that marriage.

51Where the marriage would be recognised in Australia as valid, because it was recognised as valid under the relevant local law, that exception is expressed in s 88D(2)(b) as applying in circumstances where “one of the parties was, at the time of the marriage, domiciled in Australia” (emphasis added). In those circumstances, the exception is absolute.

52A number of decided cases have dealt with the issue contemplated by s 88D(2)(b); Buciu v Sabau (1997) FLC 92-765; Eldalah [2016] FamCA 1103; Arun & Baktahri [2013] FamCA 542.

53Section 88D(3) then provides that:

Where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognised as valid in accordance with subsection (1) at any time while either party is under the age of 16 years (emphasis added).

54Accordingly, where a marriage would otherwise be recognised in Australia as valid pursuant to s 88D by reference to validity under the relevant local law:

(a)the marriage will not at any time be recognised in Australia as valid if at the time of the marriage one of the parties was domiciled in Australia, and either party was not of marriageable age; and

(b)if neither party was domiciled in Australia at the time of the marriage, the marriage will not be recognised in Australia as valid while either party remains under the age of 16 years, but will be recognised as valid thereafter.

55In the present case, neither party was domiciled in Australia at the time of the marriage. While both are domiciled in Australia now, the fact that the wife was not of marriageable age at the time of the marriage would not preclude the recognition of the marriage as valid pursuant to s 88D.

56As already noted, I am unable to make the necessary finding that the marriage was recognised as valid under Country C law and accordingly cannot find that the marriage is recognised as valid pursuant to s 88D.

57Where the marriage would not be required by s 88D to be recognised in Australia by reference to validity under the relevant local law, but would be recognised in Australia by reference to the common law rules of private international law, the exception as to marriageable age is expressed in s 88E(2) in terms which differ from s 88D(2):

Notwithstanding subsection (1), a marriage of a person domiciled in Australia, being a marriage solemnised in a foreign country, shall not be recognised in Australia as valid if, at the time of the marriage, either party to the marriage was not of marriageable age within the meaning of Part II.

58The question, therefore, arises as to whether the terms of s 88E(2) prevent what would otherwise be the recognition of the marriage of these parties pursuant to s 88E(1).

59That in turn calls into question the proper interpretation of s 88E(2) and a consideration of the difference in the drafting of that section by comparison to s 88D(2).

60I have been unable to identify any decided case on point.

61In her article ‘The New Rules on Recognition of Foreign Marriages – Insomnia for Lawyers’ (1990) 4 Australian Journal of Family Law at 190, Professor Neave observes in relation to s 88E(2) at p 205:

This provision applies only to a marriage between an Australian domiciliary and a party not of Australian marriageable age. But it is not entirely clear whether other marriages which would appear to be valid under s 88E(1) are subject to the additional public policy exceptions contained in s 88D(2) and (3).

62The author goes on to give an example of parties both domiciled overseas at the time of their marriage, and both under marriageable age, in circumstances where their marriage was valid under local law at the relevant time. She observes that under s 88D(3) that marriage would not be recognised in Australia while either party remained under the marriageable age, while concluding that the marriage would have been valid according to the common law rules of private international law. She accordingly expresses the opinion that “unless s 88E is implicitly subject to s 88D(2) the marriage would be recognised as valid in Australia”.

63That conclusion can in my view only be drawn if the expression “a marriage of a person domiciled in Australia” in s 88E(2) is interpreted to mean “a marriage of a person domiciled in Australia at the time of the marriage”, such that, notwithstanding the different wording, s 88D(2) and s 88E(2) are interpreted to have identical meaning.

64That interpretation would be consistent with the conclusion drawn by the authors of Australian Family Law and Practice (CCH) at [11-855], where they expressed the view that a marriage, which by virtue of s 88D(2)(b) will not be recognised as valid, will still not be recognised as valid even if it would have been recognised under common law rules of private international law, and that “where neither of the parties was domiciled in Australia, an overseas marriage will not be recognised as valid while either party is under [the marriageable age]” (emphasis added).

65It would also be consistent with the approach taken by the immigration authorities, both in the present case and in others. That approach, however, must be viewed in the context of s 12 of the Migration Act 1958 (Cth), which is in the following terms:

For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.

Principles applicable to the interpretation of s 88E

66Section 15AA of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) is in the following terms:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

67Section 15AB of the Interpretation Act is in the following terms:

Use of extrinsic material in the interpretation of an Act

(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)to determine the meaning of the provision when:

(i)the provision is ambiguous or obscure; or

(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

(a)all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;

(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;

(c)any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;

(d)any treaty or other international agreement that is referred to in the Act;

(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

(f)the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

(g)any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and

(h)any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b)the need to avoid prolonging legal or other proceedings without compensating advantage.

68Those provisions are consistent with the common law purposive approach to the interpretation of legislation and contextual interpretation.

69As explained by Dawson J in the High Court in Mills v Meeking (1990) 169 CLR 214 at p 235:

…the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially when that purpose is set out in the Act… [The section] must, I think, mean that the purposes stated in [the relevant Act] are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction.

70His Honour went on to caution at p 235:

However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. [The section] requires a court to construe an Act, not to rewrite it, in the light of its purposes.

71Section 15AA of the Interpretation Act does not, accordingly, give the court license to ignore the actual words of a statute nor is it a “warrant for re-drafting legislation nearer to an assumed desire of the legislature”: Trevisan (trustees of the Forli Pty Ltd Superannuation Fund) v Federal Commissioner of Taxation (1991) 101 ALR 26 at 31.

Conclusion

72For the reasons which follow, I find myself unable to conclude that the appropriate interpretation of s 88E would lead to the exception in that section relating to marriageable age having identical effect to the relevant exception in s 88D.

73The fact that the words used in the sections differ cannot be ignored. I am unable to conclude that the difference is or may have been unintentional, particularly given the absence in s 88E of a subsection equivalent to s 88D(3).

74Reference to the purpose of Pt VA of the Marriage Act does not alter that conclusion.

75The object of Pt VA as set out in s 88A is to give effect to Ch II of the Convention. The Convention is reflective of the desire of the signatories to “facilitate the celebration of marriages and the recognition of the validity of marriages”.

76Section 88D squarely meets the terms of Article 9 of the Convention. Section 88E, however, is not enacted to meet an obligation under the Convention; rather, as Faulks DCJ observed in Nygh & Kesey (supra) it “extend[s] the range of… marriages which ought to be recognised” consistent with Article 13 which provides that:

This Convention shall not prevent the application in a contracting state of rules of law more favourable to the recognition of foreign marriages.

77To the extent necessary, that much is made clear in the explanatory memorandum to the Marriage Amendment Bill 1985 Cth by which the Marriage Act was amended to include Pt VA.

78The explanatory memorandum does not otherwise shed light on the proper interpretation of s 88E(2), simply saying:

Sub-sections 88E(1) and (2) will ensure that the recognition to be given to foreign marriages under Part VA, in accordance with Chapter II of the Convention, does not (subject to the minimum marriageable age limits for parties to a marriage where one party is domiciled in Australia) affect the recognition given in Australia to a marriage solemnised in a country outside Australia where the application of the common law rules of private international law would provide for the marriage to be recognised as valid.

79The reference in the explanatory memorandum to “marriageable age limits… where one party is domiciled in Australia” notably does not refer to the consideration of that domicile being as at the date of the marriage.

80In my view, the conclusion that the marriageable age exclusions in s 88D and s 88E were intended by Parliament to differ is supported by a consideration of principles of comity. The narrower application of the exclusion to marriages which are recognised as valid because they comply with the local law of the country in which they were solemnised is consistent with those principles. The broader application of the exclusion to marriages which did not comply with the local law of the country in which they were solemnised is not inconsistent with principles of comity, even if the relevant marriage might still otherwise be recognised as valid by reference to common law principles.

81That conclusion is also supported by a consideration of the public policy purpose of legislation mandating an age below which parties may not, without more, marry. Principles of comity are consistent with an acceptance that public policy considerations can be met by reference to and reliance upon foreign law when neither party was domiciled in Australia at the relevant time. Equally, the public policy considerations relevant to marriageable age may not be adequately met (without more) by reference to common law.

82In my view the proper interpretation of s 88E(2) leads to a conclusion that in circumstances where at the time of solemnisation one or both parties were not of marriageable age, a marriage which would otherwise be recognised as valid by virtue of s 88E(1) will not be recognised in Australia where one or both parties are domiciled in this country at the time the validity of the marriage falls to be determined, regardless of their age at that time.

83I acknowledge that the marriage of the parties would be recognised as valid in this country had they been able to meet the formal requirements in Country C, and that their inability to do so arose not only through no fault of their own, but in the most horrific of circumstances.

84I recognise the apparent unfairness against that background of a conclusion that their marriage cannot be recognised in circumstances where they lived together for some 24 years, presented to the world at large as husband and wife, regarded themselves as married and have five children together. I recognise also the difficulty the parties will face in reconciling my conclusion with that properly reached under different legislation when their immigration status was determined.

85While I have considerable sympathy for the Applicant, in my view I have no alternative but to dismiss the application for a declaration of validity of marriage and with it the application for divorce.

Proposed Orders

86I propose to make the following order:

1.All outstanding applications filed by the Applicant, [Mr Kadar], be and are hereby dismissed.

I certify that the preceding [86] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
17 October 2017