FAMILY COURT OF AUSTRALIA
| KEMAL & KEMAL | [2017] FamCA 915 |
| FAMILY LAW – NULLITY – Where the wife seeks a declaration that her marriage is void – Where the wife argues she gave no consent on the basis of fraud – Where the marriage was obtained by fraud – Order made declaring the marriage a nullity. FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the husband has never engaged in the proceedings – Where the husband has filed no documents – Where substituted service has been effected – Where it is appropriate for the matter to proceed on an undefended basis. |
| Family Law Act 1975 (Cth) s 51 Family Law Rules 2004 (Cth) r 16.07 Marriage Act 1961 (Cth) s 23B |
| Carroll & Sinclair [2011] FamCA 651 |
| APPLICANT: | Ms Kemal |
| RESPONDENT: | Mr Kemal |
| FILE NUMBER: | PAC | 4650 | of | 2016 |
| DATE DELIVERED: | 14 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 31 October 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Capellia Legal |
| RESPONDENT: | No appearance |
Orders
That it be declared that the marriage between the applicant Ms Kemal and the respondent Mr Kemal conducted at City B, The People’s Republic of China in 2015 is a nullity.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kemal & Kemal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4650 of 2016
| Ms Kemal |
Applicant
And
| Mr Kemal |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings commenced by Ms Kemal, the applicant wife, by Initiating Application filed 30 September 2016 in the Family Court of Australia seeking a declaration that her marriage to Mr Kemal, the respondent husband, is void under s 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”).
Context
The wife is aged 31 and the husband is also aged 31.
The parties met through the internet online in 2014 and this application relates to the parties’ “marriage” in China in 2015.
On 30 September 2016 the wife commenced proceedings in this Court.
The wife had significant difficulty effecting service on the husband and orders for substituted service were made on three separate occasions between December 2016 and May 2017. On 16 May 2017 an order made that service upon the husband would be deemed to be effective…
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- AGLC
- KEMAL & KEMAL [2017] FamCA 915
- Case
- [2017] FamCA 915
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the marriage was void due to fraud, thereby entitling the wife to a declaration of nullity. A secondary issue concerned the appropriateness of proceeding with the final hearing on an undefended basis, given the husband's non-engagement.
Foster J determined that the marriage was indeed void due to fraud. The court applied the legal principle that a marriage obtained by fraud, which goes to the root of the marital relationship and prevents genuine consent, is a nullity. Having found the marriage to be void, the court also considered it appropriate to proceed on an undefended basis, given the husband's lack of participation and the proper service of process.
Consequently, the court made an order declaring that the marriage between the applicant Ms Kemal and the respondent Mr Kemal, solemnised in The People’s Republic of China in 2015, was a nullity.
Orders
Orders of the court
1.
That it be declared that the marriage between the applicant Ms Kemal and the respondent Mr Kemal conducted at City B, The People’s Republic of China in 2015 is a nullity.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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