Kailash and Manjalkar

[2013] FamCA 201

FAMILY COURT OF AUSTRALIA

KAILASH & MANJALKAR [2013] FamCA 201

FAMILY LAW – Marriage declared a nullity

APPLICANT: Ms Kailash

RESPONDENT: Mr Manjalkar

FILE NUMBER: SYC 5025 2012

DATE DELIVERED: 21 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Karp, counsel

SOLICITOR FOR THE APPLICANT: Parish Patience Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Manjalkar in person

Orders

1. A declaration be made that the marriage between the applicant and the respondent conducted at B suburb, New South Wales on 26 June 2011 is a nullity.

2. The applicant’s application for a declaration that she lives in a de facto relationship with the respondent be dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kailash & Manjalkar 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 SYDNEY

FILE NUMBER: SYC 5025 of 2012

Ms Kailash

Applicant

And

Mr Manjalkar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant wife, by way of an application filed on 24 August 2012, sought an order that her marriage with the husband conducted at B Suburb, New South Wales, in 2011 be declared a nullity.  Secondly, the applicant sought a declaration that she lived in a de facto relationship with her husband from 26 June 2011 to date. 

2. In relation to the application for nullity, on 3 December 2007 the applicant married a man in an Asian Country.  She was 24 years of age at the time, and the man she married was 22 years of age.  The marriage was conducted in accordance with the laws of the Asian Country and the marriage was registered in that country.

3. The evidence from the applicant’s first husband in the Asian Country confirms that the parties were married in December 2007 in the Asian Country according to traditional culture.  The applicant’s first husband says his marriage with the wife developed problems after a few months and the parties separately shortly after he and the wife came to Australia.  That separation took place around November 2008.  The applicant and her first husband did not have any children and after the separation the two of them lost contact.

4. In November 2008 the applicant commenced to live with the respondent.  In June 2011 they went through a ceremony of marriage at B suburb, New South Wales, Australia.  On that day documents relating to the marriage certificate were completed.

5. The marriage certificate is exhibit 1.  The marriage certificate records that the bride’s conjugal status was “never validly married”.  In her affidavit sworn on 16 August 2012, the applicant says, at paragraphs 8, 9 and 10:

   8. [the respondent] did not know that I was ever married to [the name of the applicant’s first husband in the Asian Country], but he did know that I had a relationship with him before in [the Asian Country].

   9. I did not realise that my marriage to [name of first husband in the Asian Country] was still valid at the time that I married [the respondent]. I thought that because we had been separated for almost two years that our marriage was no longer valid, because in [the Asian Country] you can marry more than once without officially getting a divorce.

   10. I did not think that my marriage in [the Asian Country] remained valid in Australia; I really did not know the laws in Australia regarding marriage and had I have known I would not have gotten married to [the respondent] until after [name of first husband in the Asian Country] and I divorced.

6. Those statements have been reinforced by the most recent affidavit filed by the applicant. Professor C, who has given evidence in relation to cultural practices in the culture and society in which the applicant was originally married to her first husband. 

7. In December 2011, the applicant received a draft application for a divorce from her first husband in the Asian Country. That draft application was never filed. In her affidavit filed on 24 August 2012, at paragraph 11, the applicant says that in December 2011 she showed her immigration lawyers the draft application for divorce that she had received from her first husband in the Asian Country.  That application is part of exhibit 2. 

8. Subsequently the applicant’s first husband filed an application for divorce on 7 February 2013 in the Federal Magistrates Court.  It was returnable on 7 March 2013.  I infer from an email sent by the court on 8 March 2013 that on 7 March 2013, but possibly on 8 March 2013, the application for divorce was heard (file number SYC 591/2013), and a divorce order has been made, although that divorce order would not yet be absolute. 

9. The applicant’s first husband has been engaged to marry another woman in the Asian Country since 2010.

10. The applicant’s second husband, the respondent, gives evidence that he arrived in Australia in March 2007 and started living with the applicant on 1 November 2008 and that they are still living together.  He does not give any evidence about the state of his knowledge in relation to the wife’s relationship with her first husband in the Asian Country at the time of the wedding ceremony in which he participated with the wife.

11. Section 23B(1) of the Marriage Act provides inter alia that a marriage is void where “(a) either of the parties is, at the time of the marriage, lawfully married to some other person”. I find on the evidence that at the time the applicant participated in the marriage ceremony with the respondent at B suburb on 26 June 2011 she was validly married to another man. The first marriage had taken place in the Asian Country in December 2007. Accordingly, the applicant is entitled to the relief that she seeks, and a declaration will be made that the marriage between the applicant and the respondent conducted at B suburb, New South Wales in June 2011 is a nullity. 

12. In relation to the application for declaration of de facto relationship, the wife does not seek the declaration as to the existence of a de facto relationship in the context of any application for alteration of property. On the untested evidence which I have, there is no issue that the parties have lived together as man and wife since 26 June 2011 and that that relationship remains intact. I am not sure why the declaration is sought. The applicant says in her December affidavit that she has permanent residence in Australia. If the declaration is sought for any purpose relating to the immigration status of the wife, that is not a matter for this court, but a matter for consideration and decision by the relevant Government department. The court has no power to make the declaratory order sought absent an application for property adjustment (see s 90RD(1) Family Law Act) 

13. I therefore will dismiss the applicant’s application for a declaration in relation to de facto relationship.

14. The third matter is whether or not the papers should be referred on the basis that the decree of nullity is based upon my findings that the wife was legally married to another man at the time of the second ceremony.  I reserve my decision about that issue.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 March 2013.

Associate:

Date:  2.4.2013