Lieu and Antcliff

[2016] FamCA 942

FAMILY COURT OF AUSTRALIA

LIEU & ANTCLIFF [2016] FamCA 942

FAMILY LAW – DIVORCE – NULLITY – Where a married couple participated in a second marriage ceremony with one another in Fiji – Where the second marriage was found to be valid under Fijian law – Whether the marriage is recognised in Australia pursuant to s88C and 88D(1) of the Marriage Act – Where no exception set out in ss88D(2) of the Marriage Act applies – Where the marriage is recognised as valid in Australia – Where the wife’s application for a decree of nullity (s51 of the Family Law Act) and the wife’s alternate application for a declaration of invalidity of marriage (purportedly pursuant to s113 of the Family Law Act) are dismissed – Where special circumstances are found to exist pursuant to s44(1B) of the Family Law Act to dispense with the requirement that the application for the divorce order in respect of the second marriage not be filed within a period of two years after the date of the marriage – Where a divorce order is made in relation to the parties’ second marriage to each other.

Family Law Act 1975 (Cth)
Family Law Act 2003 (Fiji Islands)
Marriage Act 1961 (Cth)

In the Marriage of C & D (falsely called C) (1979) FLC 90-636
In the Marriage of Kapadia (1991) FLC 92-245

Mears & Mears (2012) FLC 93-503

APPLICANT: Ms Lieu

RESPONDENT: Mr Antcliff

FILE NUMBER: SYC 4326 of 2014

DATE DELIVERED: 26 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Linden Legal

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The wife’s application filed on 30 September 2015 be dismissed.

2. A divorce order be made in relation to the parties’ marriage in B Island Fiji on … 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lieu & Antcliff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4326 of 2014

Ms Lieu

Applicant

And

Mr Antcliff

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In the middle of 2013, as the sun set over the palm trees on the idyllic B Island in the Republic of Fiji Islands, the parties renewed their vows and married for a second time. The parties had previously married in a registry office in Melbourne in 2005. The parties had not invited their families to the first ceremony. The wife did not advise her family about the first marriage at all and the husband’s family only found out about it after the event. The parties’ second marriage was solemnised by a priest in accordance with the rights of a church and the relevant regulatory scheme in Fiji, in the presence of family members on each side.

2. The parties’ relationship irretrievably broke down six months after the second marriage. There were no children of the marriages.

3. On 21 July 2014 a property settlement order was made by this court with the consent of the parties.

4. On 29 May 2015 the parties jointly applied for a divorce in relation to both their marriages in Melbourne and in Fiji. On 15 October 2015 the Federal Circuit Court made a divorce order in relation to the first marriage but declined to make a divorce order in relation to the Fijian marriage because of concerns as to its validity. Ultimately, this part of the application was transferred to this court for determination.

5. The wife subsequently filed an application seeking a decree of nullity of the Fijian marriage on the basis that it was void; in the alternative a declaration of invalidity in respect of the Fijian marriage or in the alternative, if the Fijian marriage was valid, a divorce order in respect of the second marriage. The respondent did not participate in the proceedings but I am satisfied that he has notice of them by way of proper service.

WAS THE SECOND MARRIAGE VALID IN FIJI?

1. Pursuant to s88G of the Marriage Act 1961 (Cth) (“the Marriage Act”), the certificate of the Fijian marriage annexed to the wife’s affidavit is prima facie evidence of the facts stated therein and as to the validity of the marriage. 

2. The wife has filed evidence from a Fijian lawyer who has 15 years’ experience specialising in family law as a primary area of her practice. She opines the Fijian marriage is valid under Fijian law. The lawyer gives evidence that it’s not an offence under the Fijian Marriage Act to marry a spouse. She explains the relevant forms the parties filled out each had a section that required them to nominate their “status” from the options “bachelor/spinster/widower/widow/divorced”. The lawyer opines that may explain why the parties declared themselves bachelor and spinster for the purpose of filling out the form. She says that even though the forms were filled out inaccurately that is not sufficient to make the marriage void or invalid in Fiji.

3. The expert evidence of the Fijian family law specialist is fortified by the fact that the law of nullity in Fiji is governed by s32(2) of the Fijian Family Law Act 2003. The terms of that section are identical to s23B of the Australian Marriage Act. Given the contentions in this case, the relevant sections of both Acts provide that a marriage is void where:

   a) either of the parties is, at the time of the marriage, lawfully married to some other person;

   …

   d) the consent of either of the parties is not a real consent because:

   …

   ii) that party is mistaken as to the … nature of the ceremony performed

   …

4. As will be clear when discussing s88D(2) of the Marriage Act, which is in relevantly identical terms, neither the provisions of s32(2)(a) or (d)(ii) of the Fijian Family Law Act 2003 are attracted by the facts of this case.

5. I find that the Fijian marriage was valid under Fijian law.

DISCUSSION

1. The statutory basis upon which this case is to be determined is found in Part VA of the Marriage Act which deals with the “Recognition of foreign marriages”. The object of that part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978. It focuses on the local law in a foreign country in relation to a marriage and whether the marriage was recognised, at the time when it was solemnised, as valid in that country.

2. As indicated, the parties’ marriage in Fiji was validly conducted in accordance with Fijian law and accordingly s88C and s88D(1) of the Marriage Act provide the foreign marriage shall be recognised in Australia as valid subject to the other provisions in s88D of the Marriage Act.

3. The exceptions to recognising a foreign marriage are set out in s88D(2) of the Marriage Act. The relevant exceptions are:

   (2) A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:

   (a)  either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid;

   …

   (d)  the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).

   The applicable part of s23B of the Marriage Act is (1)(d)(ii) “that party is mistaken as to … the nature of the ceremony performed”.

4. The applicant’s contentions are firstly that at the time the parties underwent the second marriage she was already married to some other person and secondly she did not fully appreciate the nature of the ceremony.

5. The first contention seeks to attract the exception in s88D(2)(a) of the Marriage Act and poses the question as to whether when the husband and wife participated in the Fijian marriage ceremony were they “lawfully married” to some other person. The answer is no. Neither of the parties were married to some other person. They were each lawfully married to the other.

6. That conclusion is fortified when the wording “some other person” is contrasted with the wording of s94(1) and (5) of the Marriage Act. Subsection 94(1) of the Marriage Act creates the statutory offence of bigamy and provides that a person who is married shall not go through a form or ceremony of marriage “with any person”. Subsection 94(5) provides that it is not an offence against the section for a person to go through a form of marriage with that person’s own spouse. Subsection 94(5) would not have been necessary if ss94(1) had used the expression “with some other person”.

7. The second question is whether the wife was mistaken as to the nature of the ceremony performed in Fiji. The wife asserts she believed that the ceremony that was conducted in Fiji was religious in nature as opposed to an identical marriage process that she had already been through in the civil registry office in Melbourne.

8. I find that the evidence led by the wife does not support her assertion. The wife understood that her church would not marry the parties unless a special licence was obtained from the registry office in Nadi. Documents were signed during the marriage ceremony and the wife understood they would be subsequently lodged back with the registry office in Nadi. In addition the wife understood that she was renewing her marriage vows. That is, she was going through a second form of marriage to her husband.

9. Had the parties solemnised their second marriage under Australian palm trees, then certain unresolved questions would have needed to be considered relevant to whether a second Australian marriage was void or invalid:

   19.1.Is an application for a decree of nullity under s51 of the Family Law Act 1975 (Cth) (“the Family Law Act 1975”), only on the ground that the marriage is void, the only application available or is there a second option namely an application for a “declaration of invalidity” made under s113 of the Family Law Act 1975 notwithstanding paragraph (b) of the definition of matrimonial cause in subsection 4(1), only speaks of a declaration as to the validity of a marriage? (see Bell J in In the marriage of C & D (falsely called C) (1979) FLC 90-636; seemingly supported by the Full Court in obiter in Mears & Mears (2012) FLC 93-503 at 86,416 on the one hand and Kay J in In the Marriage of Kapadia (1991) FLC 92-245 on the other).

   19.2.If only s51 of the Family Law Act 1975 is available and is based only on the ground that the marriage is void, does s23B(1) of the Marriage Act set out the only grounds upon which a second Australian marriage is void? (see the last three words of s23B(1), “and not otherwise” on the one hand and Kay J in Kapadia (supra) quoting Sir Percy Joske and Professor Dickey on the other).

   19.3.If a declaration of invalidity of marriage can be made under s113 of the Family Law Act 1975 what is the relevance of s113 Marriage Act? Section 113 of the Marriage Act discourages persons who are already married to each other from participating in a second ceremony of marriage in Australia (and for members of the Defence Force marrying overseas). There are exceptions in the section where a couple can participate in a second ceremony if there is a doubt about whether the first ceremony of marriage was legal, where there is doubt whether or not a ceremony in a foreign country would be recognised as valid in Australia or whether the first marriage could be proved in legal proceedings. There is also a further exception for a married couple going through a religious ceremony as long as that couple disclosed to the man or woman of faith conducting the ceremony that they know they are legally married and that no marriage certificate is produced from the second ceremony. While s113 says that married people shall not, absent a specified exception, go through a second ceremony of marriage with each other in Australia, the Act does not set out any penalty if they do so. Although a marriage, which contravenes s113 of the Marriage Act, is not void under s23B(1) of the Marriage Act, the question arises: does the effect of s113 of the Marriage Act render the marriage invalid?

10. But thankfully, notwithstanding the way the applicant has framed her application, I need not answer any of these questions. There is no basis to conclude a marriage, which is recognised as a valid foreign marriage pursuant to Part VA of the Marriage Act, can be the subject of an application for a decree of nullity pursuant to s51 of the Family Law Act 1975 or alternatively a declaration of invalidity purportedly pursuant to s113 of the Family Law Act 1975.

11. The question in this case is resolved by solely considering the legislation which implements Australia’s obligations under the 1984 Hague Convention.

12. As part of the 2004 Howard amendments, s88EA of the Marriage Act made clear that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia, but the Marriage Act remains silent when a heterosexual couple go through a second marriage ceremony abroad.

13. Given that no relevant exception to ss88D(1) of the Marriage Act exists, I find the parties marriage in Fiji must be recognised as valid in Australia.

14. Accordingly, I dismiss the wife’s application filed on 30 September 2015 for a decree of nullity and I dismiss her alternative application for a declaration as to the invalidity of her marriage.

15. I will proceed to consider the joint application filed by the parties on 29 May 2015 for a divorce order in relation to the Fijian marriage. A divorce order may be made in relation to a marriage which has taken place outside Australia (see s53 of the Family Law Act 1975).

16. There is a hurdle to granting the divorce order which was not raised during submissions. The parties’ marriage in Fiji was in 2013. The joint application for divorce was filed on 29 May 2015. Section 44(1B) of the Family Law Act 1975 provides that an application for a divorce order in relation to a marriage shall not, without leave of the court, be filed within a period of two years after the date of the marriage unless the parties have filed with the application a certificate stating that they have considered a reconciliation with the assistance of a specified person. Section 44(1C) of the Family Law Act 1975 provides that the hearing of the application for divorce can proceed if the court is satisfied that there are special circumstances whereby it should proceed. Section s44(1B) is meant to be a bulwark against impetuous separation shortly after a marriage. In this case I take into account the parties had been together for 11 years before they separated; the period of time the parties have now been separated and the fact that this is the parties’ second marriage to one another not their first. I am comfortably satisfied that special circumstances exist to enable the hearing of the application for a divorce order to proceed.

17. I find that the parties were domiciled in Australia at the time of the filing of their joint application for divorce. The wife and husband were married at B Island in the Republic of Fiji Islands in 2013. I find that the ground of irretrievable breakdown of the marriage proved given that the parties have lived separately and apart for a period in excess of 12 months at the date of the filing of the application. I declare there are no children of the marriage. I shall make a divorce order in relation to the second marriage, which will become effective upon the expiration of the period of 1 month from the making of the order.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 October 2016.

Associate:

Date: 26 October 2016