Lester & Lester
[2007] FamCA 186
•2 March 2007
FAMILY COURT OF AUSTRALIA
| LESTER & LESTER | [2007] FamCA 186 |
FAMILY LAW – APPEAL AGAINST DECISION OF FAMILY COURT JUDGE – VALIDITY OF MARRIAGE – Section 113 Family Law Act 1975 - Whether the trial Judge erred as a matter of law in concluding that a marriage was established by a presumption based on cohabitation and repute – Whether the trial Judge provided adequate reasons in relation to the rebuttal of the presumption - Appeal allowed.
COSTS – Costs certificate granted to the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 – Costs certificate granted to the respondent pursuant to s 6 of the Federal Proceedings (Costs) Act 1981.
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981
Jacombe and Jacombe (1960) 105 CLR 355
Kekewich J in Re Shephard, George v Thyer [1904] CH 456
Piers v Piers (1849) 2 HL Cas 331
Re Taylor (deceased) Taylor v Taylor and Another [1961] All ER 9
Sheludko v Sheludko [1972] V.R. 83
Sastry Velaider Aronegary v Sembecutty Vaigalie (1881) 6 App Cas 364 at 371
Solomon and Hatti (unreported) Supreme Court of New South Wales, Court of Appeal
| APPELLANT: | LESTER |
| RESPONDENT: | LESTER |
| FILE NUMBER: | BRF | 3266 | of | 2005 |
| APPEAL NUMBER: | NA | 50 | of | 2006 |
| DATE DELIVERED: | 2 March 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | KAY, WARNICK & MAY JJ |
| HEARING DATE: | 21 November 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 June 2006 |
| LOWER COURT MNC: | [2006] FamCA 445 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Burridge |
| SOLICITOR FOR THE APPELLANT: | Biggs Fitzgerald Pike |
| COUNSEL FOR THE RESPONDENT: | Mr Murphy SC with Mr Kidson |
| SOLICITOR FOR THE RESPONDENT: | Barry & Nilsson Lawyers |
Orders
That the appeal be allowed.
That the orders made by Carmody J on 1 June 2006 be set aside and the Application in a Case filed 10 November 2005 be dismissed.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Lester and Lester.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 50 of 2006
File Number: BRF 3266 of 2005
| MR LESTER |
Appellant
And
| MS LESTER |
Respondent
REASONS FOR JUDGMENT
The respondent wife to this appeal, Ms Lester, filed an application for property settlement and other financial relief on 10 November 2005. In those documents Ms Lester alleged that the parties were married in Ghana in 1997 and separated in March 2005.
In a response filed 7 February 2006 on behalf of the appellant it was asked:
1.That this Court make a declaration that the Applicant and Respondent were not and have not been married.
2.That the Application be dismissed.
3.That the Applicant pay the Respondent’s costs of and incidental to the Application.
Carmody J on 1 June 2006 made orders that:
It is declared that:
1.For the purpose of Section 113 of the Family Law Act, 1975 the applicant and respondent in these proceedings are the parties to a marriage for the purposes of ss 4(1)(c)(ca), 74 and 79 of the Family Law Act, 1975.
It is ordered that:
2.The response filed on 7 February 2006 be dismissed.
3.The respondent is not relieved of his undertakings not to dispose of any disputed property pending determination of the s 79 proceedings.
The respondent, as described in those orders, Mr Lester, filed a Notice of Appeal on 28 June 2006 from all of those orders. The Notice of Appeal was amended on 14 July 2006.
The grounds of appeal (as amended) are as follows:
“1. The learned Trial Judge made material errors of fact in finding that the respondent: -
i)Travelled to Ghana in January 2005.
ii)Was unable to obtain a Marriage Certificate or other record of marriage because she did not remember the date of marriage.
2.The learned Trial Judge erred as matter of law in concluding that a marriage between the appellant and the respondent was established by a presumption based on cohabitation and repute.
3.The learned Trial Judge erred in concluding that the appellant failed to rebut the presumption.
4.The learned Trial Judge failed to provide reasons or any adequate reasons for the conclusion that the appellant failed to rebut the presumption.
5.The learned Trial Judge was in error in concluding that the Elias v Elias principle applied to the proceedings.
6.The learned Trial Judge denied the appellant procedural fairness by not permitting the appellant to properly address the existence of the presumption and by having regard to academic writings in relation to the presumption.”
Background
The appellant was born in Australia on 31 July 1952 and the respondent in Ghana on 15 March 1959. In their affidavit evidence and oral evidence the parties did not agree in relation to any essential times of cohabitation. For example, the appellant said that he arrived in Ghana on 21 December 1994. The respondent said that they began living together in 1993. The appellant acknowledges that a sexual relationship began in 1995 but says that cohabitation did not commence until 1997. There is some agreement that they travelled together to Guinea at the end of 1997 where Mr Lester worked. They lived together in the accommodation provided by the employer, a mining company.
It was the respondent’s case that they married on 13 December 1997 in a town in Ghana.
Together they came to Australia in July 2000 for a holiday. The respondent applied for permanent residence and they attended an interview with the Department of Immigration.
The respondent was granted permanent residence on 2 August 2000. That permission was based on her application supported by that of the appellant that they were living in a de facto relationship. The document relied upon by the appellant, the application form (AB 174-189), showed that Ms Lester represented that she had been living in a de facto relationship with the appellant since 10 March 1995. The appellant also said in these documents that they had been living in a de facto relationship commencing on the same date. The document was signed by both parties.
However, in addition to this evidence is a handwritten note from an officer of the Department of Immigration on a document called 820 – Spouse (Marriage/De facto) Application Checklist which referred to a Ghanaian wedding certificate dated 13 December 1997. The parties gave different evidence about what this meant.
Another difficulty for his Honour was that the respondent, in oral evidence, claimed she could not read or write English whereas the appellant said that Ms Lester could read English and they had always communicated in English.
The parties agree that their relationship ended in March 2005.
Reasons for judgment
Given the complicated and unusual nature of this case it is necessary to outline his Honour’s reasons for judgment in some detail.
After referring to the relevant legislation, the Family Law Act 1975 and other Commonwealth legislation the trial Judge observed in paragraph 19:
“19.Clearly, failure to prove a marital relationship would be fatal to the wife’s property and maintenance claims. The centrality of this issue to the principal relief sought makes the exercise of the s 113 power both necessary and appropriate.”
The provisions of s 113 are as follows:
Proceedings for declarations
113.In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
The trial Judge at first under the heading “Facts” recounted the uncontroversial facts and the respective cases of both parties. Ms Lester claimed that there was a marriage ceremony in a registry office in the town of marriage, followed by a traditional ceremony and celebration later in the village in which they were living. It is her evidence, to which his Honour referred, that her brothers and friends attended the wedding. No affidavits were submitted from any of those people.
As to how the parties came to be living in Australia, his Honour said at paragraph 27:
27.The parties holidayed in Australia in July 2000. While they were here the applicant applied to immigrate. Both of them informed departmental officials and signed documents confirming that they commenced a de facto relationship in 1995 but were not married. The form (PL 3) records the wife’s main language as English and her surname as ['Lester'].
28.In PL 6, a Statutory Declaration, the parties affirm that they were known and accepted in the village and by other ex pats as being in a de facto relationship. However, they go on to say that their friends in Australia accepted them ‘as a married couple’.
29.PL7 records the following comment by an interviewer:
Obviously committed couple. De facto relationship for five years plus.
30.Notably the applicant was still using her maiden name on travel documents in 2003. (PL 1).
31.However, there is a reference in Ex. 1 to a Ghanaian wedding certificate dated 13 December 1997.
The controversial issue between the parties was whether a marriage ceremony had taken place at any time. Ms Lester claimed various dates in her affidavit evidence and the trial Judge said at paragraph 21 of the judgment:
“21. She does not remember the precise date (allegedly because wedding anniversaries are not culturally significant in her country) but believes it to be 13 December 1997.”
The trial Judge noted however, that in paragraph 19 of her affidavit Ms Lester referred to the marriage as taking place in mid 1997 while it was stated at paragraph 20 that she ceased working in September 1997 “after our marriage”.
Another difficulty observed by the trial Judge regarding Ms Lester’s assertion that the marriage took place on 13 December 1997 is that her passport suggests that she was not in Ghana on that date.
At paragraph 23 of the judgment the trial Judge records that there is no doubt that Mr Lester:
“23.…admits that he and the applicant referred to each other as husband and wife, occupied married quarters and were treated by his employer and within the local community as spouses (even though they were not) but categorically denies anything in the nature of a wedding.”
Although, as his Honour observed, there was a reference to a marriage certificate in the documents when the parties applied to immigrate (Ex 1), no such wedding certificate was ever produced. Ms Lester said that she had tried to obtain a duplicate from the Ghanaian Registry Office in January 2005, but as she could not remember the date of the marriage and records are not held on computer this posed some difficulty.
According to Mr Lester the only certificate obtained was a fake so that Ms Lester could adopt his surname on her passport, which she subsequently did. He said he has no knowledge of the current whereabouts of the certificate.
Faced with this unsatisfactory state of the evidence and the extreme differences in their statements, the trial Judge observed that:
“35.As the alleging party the applicant has the onus of establishing the alleged marriage to my reasonable satisfaction on the civil standard, that is, the balance of probabilities. All she has to prove is the celebration of a recognisable marriage ceremony at some point in time somewhere in the world. She can do this in a number of ways – (a) conclusively: by the production of an authenticated public record such as a marriage certificate or an entry in an official register; or (b) directly: through her own or other sufficiently cogent and credible testimony; and/or (c) inferentially: from proven circumstances consistent with or tending to confirm her assertion; and/or (d) presumptively: on the basis of cohabitation and reputation with or without a formal ceremony.
36.There is also authority for the proposition that where both parties are still living and there is little or no reliable evidence of a ceremony, the testimony of the asserting spouse can be reinforced by cohabitation rather than a disputed marriage ceremony being proved by presumption. The responsibility of the judge is to consider all the evidence and draw any inference which is fairly open on the proven facts and apply such aids including presumptions and rational inferences that may assist in arriving at that decision.”
In relation to the admission by Mr Lester that a false certificate of marriage had existed, his Honour said:
“38.What is clear, however, is that if it is a forgery, the applicant was allowed by the respondent to use it to represent herself to others (including persons in authority) as his wife.
39.Wherever the truth may lie the respondent should not be allowed to take advantage of his own dishonesty. Anyone seeking to be relieved against his own act or disbelieved on his own statements should fail on policy grounds alone. He simply cannot be heard to say that a certificate exists but is a fraudulent imitation”.
His Honour was more critical of the evidence of Ms Lester describing it as “unsafe and unsatisfactory”. In particular his Honour pointed to the fact that no other witnesses had been provided to give evidence of the marriage and that the absence of any supporting affidavits was not satisfactorily explained. In addition:
“43.I was singularly unimpressed by the applicant’s overall performance in the witness-box. I am not willing to merely accept her word that the marriage existed.”
44.…There is simply not enough other forensic information for me to decide whether a ceremony constituting a marriage ever took place in Ghana. All I have is that there was some sort of (disputed) public event. There is no description of any of the formalities that were observed nor any indication of whether an exchange of vows was even involved. I do not know from the evidence what sort of ritual is capable of producing a valid marriage according to the local law of Ghana or, indeed, whether any ceremony or other formality is required at all.
45.Nor am I informed whether there was a celebrant or not. Curiously, no wedding photos of the happy couple or cards from well wishers are annexed. There is not a single memento or keepsake to act as a tangible reminder of such a significant occasion in the lives of these parties”
His Honour then said:
“46.However, I do not believe the respondent's denial either. To put it bluntly I do not trust either of the parties enough to prefer the credibility of one over the other on credibility grounds. I am therefore left in the invidious position of being unable to reach a positive conclusion either way as to whether the parties were ever formally joined together as man and wife in a recognisable marriage ceremony in Ghana as the applicant alleges.
…
48.While the evidence leaves me in no doubt that the parties lived together and passed themselves off as husband and wife over a reasonably lengthy period of time but I cannot be sure whether either or both ever actually considered that they were married to each other in any formal sense.”
The trial Judge then referred to various documents, largely letters from the appellant and his employer, and concluded:
“52.The probative force of these statements even when reinforced by the fact of cohabitation is insufficient to support a positive probability finding of marriage. The opposite conclusion is equally open.
53.Accordingly, I am not reasonably satisfied that the parties were ever married in conformity with the common law rules of private international law.”
His Honour then turned to the question of whether:
“54.…reliance may legitimately be placed by an applicant attempting to prove a disputed matrimonial relationship on the common law presumption of marriage arising from cohabitation and repute which the authors of Conflict of Laws in Australia say applies ‘equally applicable to marriages celebrated abroad’”
The trial Judge then discussed the concept of the presumption of marriage, referring to the well known cases in relation to these legal principles, describing it as follows:
“55.There are three distinct presumptions to consider. The first two relate to the formal and essential validity of a proven marriage ceremony. Neither of these are relevant here because as I have already said I am not convinced that any kind of ceremony was ever celebrated. The third presumption arises on proof that a couple cohabited as man and wife and enjoyed the social reputation of being married. This assumption is quite different from the other two because rather than assuming validity on the strength of an antecedent marriage celebration it presumes both the existence and validity of such a ceremony despite the absence of any clear evidence of one ever having taken place. This is the presumption that I am concerned with here.”
This consideration was necessary because as his Honour said:
“96.Neither of the parties can be believed. The inferences arising from established primary facts do not resolve the question about whether there was a recognisable marriage ceremony or not. Thus, the combined effect of the testimonial and circumstantial evidence leaves me in a state of indecision in relation to the ‘marriage’ issue. My mind is intractably neutral on the point.
97.Nonetheless, according to the decided cases the applicant is entitled to raise and rely on the common law presumption which reverses the onus of proof and can only be displaced by convincing evidence to the contrary.”
After referring to the documents annexed to the appellant’s affidavit, being those of Mr and Mrs Lester’s application for migration to Australia by a partner (Ms Lester), the trial Judge said:
“98.…The question is whether the declarations of the parties made in 2000 are compelling enough to displace the presumption and to satisfy s 140 of the Evidence Act? They might be if the wife knew what representations were being made by the respondent about their marital status and acquiesced in them. She may well have but even so the statements are just as likely to have been false as true. Still I do not understand at all why it would be in the interests of either of them to give conflicting information about their marital status to different officers of the same government department on separate occasions. If they wanted the immigration office to believe that they were de facto partners then there was no point in mentioning the existence of a Ghanian [sic] marriage certificate regardless of whether it was genuine or a fake. Indeed, there was every reason not to. It just goes to show that the problem with proven or admitted liars is you never know whether they are lying when they swear that they are telling the truth, or telling the truth when admitting that they are lying.”
After recording his view about the state of the evidence and the truthfulness of each of the parties his Honour then found:
“99.All in all I am not satisfied that the respondent has discharged the onus on him of displacing the presumption.
100.I am therefore prepared to declare for the purposes of Section 113 of the Family Law Act 1975 that the parties are married but I cannot say whether it was in Ghana on 13 December 1997 or some other time. All I have on the date is the word of the applicant who I do not believe and a hearsay record of a dubious marriage certificate. My power under s 113 is limited to making a declaration ‘as is justified’. There is no appearent [sic] justification in this case for specifying a date or place of marriage.”
Arguments on Appeal
There is no issue raised by either the appellant or respondent in relation to the credit findings of the trial Judge nor the part of the judgment where his Honour rejected the argument that on the evidence of the applicant, Ms Lester, he should find that a marriage took place.
Save for, on the respondents behalf, Mr Murphy SC’s reference to Solomon and Hatti an unreported judgment from the Supreme Court of New South Wales Court of Appeal on 10 February 1987, both counsel focussed on substantially the same authorities, although the written lists provided extended beyond those addressed orally.
Essentially, the arguments took opposite sides of the same coin and can be covered by addressing the correctness or otherwise of the appellant’s argument.
The argument of the appellant is centred on grounds two and three and addresses the trial Judge’s conclusions in relation to a presumption of marriage. In ground four the appellant contends that the trial Judge failed to provide adequate reasons in relation to the rebuttal of the presumption.
Ground one was not relied on in the sense of any misapprehension of facts but it is submitted that those facts are relevant to both the presumption and any rebuttal. Ground five is not pressed apart from the presumption issue generally and ground six is abandoned.
There is no submission that his Honour misstated the law as to the presumption of marriage in particular at paragraph 55 to which we have already made reference.
The first challenge to his Honour’s conclusions is that it was based on an assumption that the appellant had the onus of proof. Further, that in this case his Honour wrongly applied a number of authorities because in those cases the factual basis was unlike the present circumstances, in that there had been a ceremony of marriage and the question was one of validity.
Conclusions
At the expense of repetition, we note that his Honour did not find that there had been a ceremony of marriage between the appellant and the respondent and secondly, that the trial Judge did not accept the evidence of either party and said that their evidence could not be relied upon. It is appropriate to first refer to a number of the cases upon which the trial Judge relied, especially those that discuss directly the principles applicable where it cannot be found that there was a marriage ceremony and that other circumstances should be considered to determine if a presumption arises.
In Jacombe and Jacombe (1961) 105 CLR 355 it was accepted that the parties went through a ceremony of marriage in Jerusalem according to the rights and ceremonies of the Church of England on 7 July 1941. As their Honours Dixon CJ, Fallagar and Menzies JJ said (p 357):
“The formal validity of this Jerusalem ceremony is not now in dispute. What is in dispute is the capacity of the respondent to have contracted that marriage, the appellant contending that she was at that time the wife of Stanislavs Urbanovics.”
In the marriage certificate Mrs Jacombe was described as a spinster but she admitted that that was not correct as she had previously been married and divorced.
The application for divorce on behalf of the wife was opposed by the husband ultimately on the basis that Mrs Jacombe did not have the capacity to enter into the marriage, she having been previously married. At the outset of the judgment their Honours observed (p. 357):
“…what we are now concerned with is whether there was in the circumstances as a whole enough to lead to the conclusion that the parties were validly married.”
After discussing the evidence and the decision of the lower appeal court, the Full Court of New South Wales, their Honours concluded that the documents (p 359):
“…established the dissolution of the marriage between the respondent and Urbanovics.”
And said:
“This conclusion is sufficient to dispose of the appeal, but in the circumstances it is desirable to express our agreement with the judges of the Full Court who dealt with the matter that proof of the ceremony of marriage at Jerusalem followed by seventeen years’ [sic] cohabitation as man and wife raised so strong a presumption of the validity of the marriage between the parties that it prevailed over such evidence as there was to the contrary.
This is a case where the performance of the marriage ceremony was followed by the parties living together as man and wife for seventeen years. The performance of a marriage ceremony itself raises a presumption of the validity of the marriage and upon this point it is not necessary to do more than cite from the judgment of the present Chief Justice in Axon v. Axon (1937) 59 CLR 395 at pp 403, 404: ‘Upon proof that a marriage ceremony had been duly performed between herself and the respondent a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony’. Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec'd. (1961) 1WLR 9) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so.
For these reasons the appeal should be dismissed.” (Emphasis added)
In Axon and Axon (supra), that the parties had been through a ceremony of marriage was uncontested, the only question was whether the wife was still lawfully married to a person to whom she had previously been married at that time.
Reference was also made to a single Judge decision from the Supreme Court of Victoria, Sheludko v Sheludko [1972] V.R. 83. In that case the wife sought adissolution of marriage and the respondent husband asserted that at no time were they lawfully married. He claimed they had merely lived together and there had been no marriage. The wife said they were married in February 1943 in Eastern Poland and from that date until 1962 they had lived together continuously. After the alleged marriage the parties lived in various places in Europe and his Honour explained that after the war they had been “stateless persons”. In 1949 they came to Australia and there was evidence that they had lived together for almost 19 years. As his Honour said (p. 83):
“…Throughout that period it is clear that they gained a reputation in the eyes of the community in which they were from time to time living of being married persons.”
His Honour observed that if he found that there was no ceremony of marriage then he would dismiss the petition.
After making reference to the evidence of the wife as to the marriage and the circumstances after that he found that he preferred her version of the facts and concluded:
“…that it was not improbable that civil ceremonies of marriage could have been undertaken at the relevant time.” (Crockett J at p. 84)
His Honour then continued:
“The petitioner does not, it appears to me, have to rely merely on the question of who is to be believed between her and the respondent by recourse either to credibility or probabilities in relation to the question of whether there was a marriage. Even if (contrary to the finding of fact made by me) I were left by the evidence in a state of indecision as to whether she went through a form of marriage ceremony, the lengthy period of cohabitation during which the parties lived and were known as man and wife entitles the petitioner, in my view, in law to rely upon a presumption that they are husband and wife.”
His Honour found that it was not necessary to rely upon this because he accepted that there had been a marriage, and (p. 86):
“…that it has not been possible for her to obtain it [the marriage certificate] having regard to the reasonable efforts that have been undertaken on her behalf to that effect.”
He further stated (p. 86):
“…in a period of cohabitation as long as that, with a reputation of being married persons, existing for such a period, in such circumstances, in many different communities, with the respondent’s constant assertion of his being a married man, it would require, in my view, the strongest evidence of the greatest cogency on the part of the respondent to rebut the presumption of a valid marriage which in my view, in law exists.
Reference was also made to an earlier decision Bondarenko v Bondarenko (1967) 10 FLR 230, also a single Judge decision from the New South Wales Supreme Court. In that case the parties to the application for a dissolution of marriage had come from Germany. The wife claimed there had been a marriage in the Ukraine and provided a parish church registry document from Germany. The husband, who opposed the divorce, said that there had been no marriage and that the story of the marriage had been fabricated to assist him and the wife to escape from a refugee camp. His Honour found that there was “a very strong prima facie, if not conclusive case” that the parties were married on 10 January 1942. He added (p. 234):
“Up to the year 1960 the respondent consistently and persistently claimed, both on his oath and otherwise, that such was the fact.”
His Honour having found that it is more probable than not that there was such a marriage also considered the question of the presumption and found that there had been the marriage as alleged by the wife.
Perhaps the most useful case to which we have been referred when a presumption of marriage can be applied where there is a real dispute as to whether there has been a marriage ceremony at all, is Re Taylor (deceased) Taylor v Taylor and Another [1961] All ER 9 (Lord Evershed, M.R., Harman and Donovan, L.JJ). In that case the plaintiff, born in 1911, claimed to be a legitimate son of John Taylor, who had died intestate in 1955. His claim for a share of the estate depended upon proof that Taylor was lawfully married to the plaintiff’s mother, Izender, at the date of his birth. There was no marriage certificate and no evidence of a marriage ceremony from other persons. However, six witnesses said the plaintiff’s parents had lived as man and wife from 1908 until Izender died in 1913. The plaintiff was the youngest of four children born during that period, each of whose birth certificate recorded the mother as Izender. Her death certificate and a register of burials both recorded her as the wife of Taylor. When Taylor remarried, he was described as a widower in the marriage certificate. There was evidence of his oral declaration that he had married Izender. Lord Evershed MR at p. 58 cited the statement by Kekewich J in Re Shephard, George v Thyer [1904] CH 456:
“…where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage…”
And then said:
“I take that passage as a statement of the law which ought to be applied in a case like the present, and I note the adverb “clearly”.”
Lord Evershed specifically distinguished earlier cases in which a more stringent test for rebutting a presumption had been stated, namely that the evidence must be “strong, distinct, satisfactory and conclusive”, see particularly Piers v Piers (1849) 2 H.L. Cas. at p. 362. This distinction arose from the fact that those were cases where it was established that the parties had gone through a form of marriage “it is assumed that the marriage was in accordance with the law relating thereto” (at p. 57).
His Lordship then said:
“In spite, however, of the fact that the language I have referred to in Piers v. Piers was applied to a case different in an essential respect from the present case, I think that it is nonetheless true that during the century and more that has followed, something like a similar principle seems to have been adopted and treated as applicable in a case where, as here, the question, aye or no, were two people married, turns on evidence of cohabitation and reputation in the absence of any evidence of a ceremony. I have said that the principle has been applied in some degree, and for the purposes of stating what I now conceive the law to be in a case such as the present I will take a phrase cited by Kekewich J., in In re Shephard, George v Thyer, a case to which much reference was made in the argument but which in my judgment does not on the facts provide any very safe guidance for the present case. In In re Shephard Kekewich J., after referring to a Privy Council case, Sastry Velaider Aronegary v. Sembecutty Vaigalie, quoted the language used in that case by Sir Barnes Peacock:
‘It appears from the authorities which he’ (Dr. Phillimore) cited that, according to Roman-Dutch law, there was a presumption in favour of marriage rather than that of concubinage. It does not, therefore, appear to their Lordships that the law of Ceylon is different from that which prevails in this country; namely (and this is the essential sentence) that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.’
I take that passage as a statement of the law which ought to be applied in a case like the present, and I note the adverb "clearly." It is, of course, not to be forgotten that in the hundred years that have gone by since Piers v. Piers the law relating to the registration of marriages has been made more strict, communications are easier and the likelihood of people being married and nobody knowing about it and, indeed, not being able to find a record of it is no doubt much decreased.”
In our view Taylor (supra) supports a proposition that where parties have lived together for a significantly long period of time and there is evidence of reputation from others in favour of the parties having been married the presumption arises and may be rebutted only with clear evidence showing that the parties had not married.
It was this case upon which his Honour placed particular reliance, especially the section which referred to the presumption of a couple “living together in consequence of a valid marriage, and not in a state of concubinage.” Even if this properly states the law in Australia the facts of the case before Carmody J are first, that the trial Judge was unable to find that there had been a ceremony of marriage and second, that although the parties lived together in a relationship for a number of years there was no evidence from any person other than them that they had represented to the world that they were a married couple.
In Taylor (supra), the trial Judge had the evidence of six witnesses, whose evidence was accepted, that they knew that the parties had lived together as Mr and Mrs Taylor in a small community from 1908 until 1913 and were accepted by the community as husband and wife. Various certificates were provided, to which we have already referred, including birth and death certificates that described them as husband and wife. In the case of each birth certificate the informants name was entered as Izender, the wife, and in the death certificate Izender was described as the wife of John Taylor, who was the informant.
Finally, we were referred to Solomon and Hatti (supra), where the Court consisted of Kirby P, Hope and Mc Hugh JJA. In this case, two daughters of the late Cesar Hatti, who were beneficiaries under his Will, appealed from an order of a Master which gave the whole of the estate to Marie Hatti, the widow. The daughters alleged that at the time of the later marriage to Marie Hatti, the marriage was bigamous because their father had previously been married to a woman in Lebanon on 30 May 1916. If that marriage was bigamous, Marie Hatti had no right to an order under the Testators Family Maintenance Act 1916. The principal judgment was given by McHugh JA and in relation to the issue with which we are to deal, he relevantly said as follows:
“The presumption of marriage Once [sic] it is proved that a marriage ceremony was duly performed, a strong presumption arises that the ceremony ended in a lawful marriage between the participants. The burden is on the party who denies the validity of such a marriage to produce “reasonable evidence” to overcome the presumption: Axon v Axon (1937) 59 CLR 395 at 404 per Dixon J. If the parties have gone through a ceremony of marriage and also lived together and acquired a reputation as husband and wife, the presumption that they are lawfully married is strengthened. In the past, proof that parties have cohabited, and acquired a reputation, as husband and wife has been enough to raise a presumption of marriage even though no marriage ceremony was proved: Jacombe v Jacombe (1961) 105 CLR 355 at 360. Indeed in that case the High Court said that the presumption arising from cohabitation and reputation could be displaced only by ‘clear and cogent evidence”. The large number of de facto relationships in the community has not weakened the presumption which arises from a man and woman living together, and acquiring a reputation, as husband and wife. Social stigma no longer attaches to those who “live together”. At all events, it does not attach to the same degree as it once did. Accordingly, I think that, when a man and a woman profess to be husband and wife and acquire a reputation as husband and wife, a strong presumption still arises that they are husband and wife. Indeed, there is less reason at the present time for persons to conceal their true relationships than in the past.”
In this case there was very little evidence provided about reputation. In our view it is necessary to have sufficient evidence to enliven the presumption particularly where there is either no evidence of a marriage or findings are made by a trial Judge as in this case.
Further, if the trial Judge was unable to believe Ms Lester there must be a real question as to whether a presumption should be applied, especially if it has the effect of reversing the onus of proof. Even if it is correct that the onus shifted to the appellant, in this case the credit findings made against each of them were so strong only evidence given by others could be relied upon.
There was no evidence from any person other than the parties, except the documentary evidence which we find, on balance, was more supportive of a de facto relationship than a marriage and was, if necessary, the rebuttal evidence.
In the absence of a finding that a marriage ceremony took place, even one of questionable validity, the evidence in relation to cohabitation and repute would need to be substantial to allow such a presumption to operate. The state of the evidence in this case, as described by his Honour, was not in that category.
In our view the application of the presumption must be consonant with the evidence in the case, not sit, as it does here, in an evidentiary vacuum. This approach we think entirely consistent with the passage earlier quoted in Jacombe, but repeated here for convenience:
“Futhermore, proof that the parties lived together and were accepted as man and wife raised and presumption that they were validly married (see In Re Taylor, Dec’d (1961) 1 WLR 9) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so.”
We are of the opinion that grounds two and three have been made out and that the appeal should be allowed. Thus there is no need to discuss the other grounds.
The next question is whether the matter should be remitted. As the factual findings were not challenged and the appeal has succeeded only on matters of application of principle there is no utility in a further hearing of the matter.
We would therefore allow the appeal and dismiss the Application in a Case filed 10 November 2005.
Costs
The appeal being allowed on matters of law, we are of the view that each party should be granted a certificate and will make orders accordingly.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 2 March 2007
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