KEMAL & KEMAL

In this matter before Foster J, the wife sought a declaration that her marriage to the husband was void. The wife's claim was based on allegations of fraud, asserting that her consent to the marriage was vitiated. The husband did not participate in the proceedings, having filed no documents and not engaging with the legal process, despite substituted service having been effected.

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.