Landon and Yin

[2016] FamCA 1068

FAMILY COURT OF AUSTRALIA

LANDON & YIN [2016] FamCA 1068

FAMILY LAW – NULLITY – Whether the marriage is void – Where the respondent was lawfully married to another person at the time of the marriage – Decree of nullity granted.

Family Law Act 1975 (Cth)s 51
Marriage Act 1961 (Cth) ss 23B, 88G, 88D

APPLICANT: Mr Landon

RESPONDENT: Ms Yin

FILE NUMBER: BRC 5410 of 2016

DATE DELIVERED: 13 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 12 December 2016

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: No appearance

Orders

1. It is declared that the marriage solemnised between Mr Landon and Ms Yin in 2014 is void.

2. A decree of nullity in relation to that marriage is granted.

3. Any outstanding applications are dismissed.

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 Landon & Yin 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 BRISBANE

FILE NUMBER:    of

Mr Landon

Applicant

And

Ms Yin

Respondent

REASONS FOR JUDGMENT

1. This is an application for a decree of nullity of marriage. 

2. In 2014 Mr Landon (“the applicant”) and Ms Yin (“the respondent”) undertook a marriage ceremony in Australia. The marriage certificate for that marriage is before me and notes the respondent’s marital status as “never validly married”.

3. The respondent has been served with this application and supporting material in accordance with the Order made on 13 September 2016, together with a copy of the Order made listing this matter for hearing today. No appearance is made by or on behalf of the respondent.

4. The application is made pursuant to s 51 Family Law Act 1975 (Cth) and the only ground upon which a decree of nullity may be granted is that the marriage is void.

5. Section 23B of the Marriage Act 1961 (Cth) relevantly provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.

6. Annexed to the applicant’s affidavit filed 11 November 2016 is a copy of a marriage extract certified as a true copy of the original document for a marriage solemnised between the respondent and Mr B on 16 September 1999 in Country C.

7. Pursuant to s 88G of the Marriage Act 1961 (Cth) such a document is prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates. Accordingly, pursuant to s 88D of the Marriage Act 1961 (Cth) the marriage solemnised between the respondent and Mr B on 16 September 1999 is recognised in Australia as valid.

8. There being no evidence before me that the respondent’s marriage to Mr B was dissolved prior to the relevant date in 2014, I find that the marriage entered into on that date is void and make orders accordingly. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 December 2016.

Associate: 

Date:  13 December 2016