Kapor & Savita

[2007] FamCA 1067

FAMILY COURT OF AUSTRALIA

KAPOR & SAVITA [2007] FamCA 1067

FAMILY LAW – MARRIAGE – Nullity – Application by wife for decree of nullity of marriage on ground of duress –  Wife failed to attend – Application dismissed on the material filed by and on behalf of the wife

Family Law Act 1975 (Cth)
CCH Australian Family Law & Practice, volume 1 page 11,253

Ford v Stier (1895) P 1
Buckland v Buckland (1967) 2 WLR 1506

APPLICANT: Ms Kapor

RESPONDENT: Mr Savita

FILE NUMBER: MLC 8039 of 2007

DATE DELIVERED: 29 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 29 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Form 1 Application of the wife filed on 16 July 2007 be dismissed.

IT IS DIRECTED

(2)That the ex tempore judgment delivered this day be transcribed and when transcribed a copy be placed on the court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Kapor & Savita.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8039  of 2007

Ms Kapor

Applicant

And

Mr Savita

Respondent

REASONS FOR JUDGMENT

1. I have before me an application for nullity of marriage filed by the wife.  The respondent to the application is the husband.  The Application was filed on 16 July 2007 and is supported by an affidavit also filed that day.  I also have before me a copy of the marriage certificate and a copy of the wife's Australian passport.

2. I had the wife called at 10.05 am this day.  She failed to respond to the call.  It is 10:35 am and I have had her called again.  She failed to respond to the call.  In addition to her unexplained absence from court this day, I have no evidence as to service.

3. Be that as it may, I am familiar with the documents.  Pursuant to the provisions of the Family Law Act 1975 (as amended), an application for a decree of nullity of marriage must be based on the ground that the marriage is void. A marriage is void where, inter alia, the consent to the marriage of either of the parties is not a real consent because it was obtained by duress. This is the ground relied upon by the applicant.

4. It is plain law that consent of one of the parties to a marriage may not have been a real consent if it was obtained by some force or a threat of force.  Accordingly, if such were the case, the marriage may be declared void.  However, there has to be “real duress”, and it is not sufficient to invalidate a marriage of a person “with a strong will simply to have imposed that will on another who has a weak impressionable character”.  See CCH Australian Family Law & Practice, Volume 1 page 11,253.

5. Precedent is replete with authorities dealing with an issue similar to that before me.  For example in Ford v Stier (1895) P 1, Gorrell Barnes J, on the facts before him, annulled a marriage finding that a woman was under the influence of her mother and the man and was “not a free agent”.  Such is not the case before me.  The applicant was 31 years of age at the time of the marriage.  The requisite standard of persuasion must be made out by the applicant seeking a decree of nullity of marriage and to demonstrate that her will was overborne to the extent necessary to constitute duress. 

6. In Buckland v Buckland (1967) 2 WLR 1506 Scarman J expounded a test for consent initiated by fear, namely “… that fear of sufficient degree” to vitiate consent be present and that the fear is reasonably entertained.  Further, that the fear arises from some external circumstance for which the applicant is not responsible.

7. By no measure has the applicant in this case on the material before me demonstrated that she entertained a reasonable fear, subjecting herself against her will to enter into the marriage ceremony.  There is insufficient evidence to demonstrate that her will had been overborne by a genuinely and reasonably held fear caused by threat sufficient to destroy the reality of consent to ordinary wedlock.

8. It appears to me that the applicant simply asserts a bald narrative statement of her emotions reconstructed some two years after the event, and substantially infected by the fact that her union was of a mere three day duration.  She does not seek to support her bald assertions with any corroboration. 

9. The applicant simply claims she was subjected to “great duress” from her own family. Whilst there may have been some form of filial “pressure”, she does not demonstrate to me a sufficient foundation to constitute the ground for duress.  It is understandable that duress can be a question of degree, but it must nonetheless constitute, in my view, a situation whereby the applicant has acted through fear of personal suffering, such as from injury either actual or threatened.  Duress, whatever its form, is a coercion of the will such as to vitiate consent.

10. In her affidavit, the applicant refers to Indian “culture and tradition” as a result of which she was forced to comply.  She also deposed that none of her own family raised objections but went along with “the will” of her husband's family.  The case is not made out.  I will order that the application of the wife filed in 16 July 2007 be dismissed.  I will direct that a copy of the extempore judgment be transcribed, placed on the court file and made available to the wife. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 September 2007.