Lindgren & Askanios
[2025] FedCFamC1F 66
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lindgren & Askanios [2025] FedCFamC1F 66
File number(s): PAC 1621 of 2023 Judgment of: RIETHMULLER J Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – NULLITY – Where the applicant seeks a decree of nullity – Respondent in two same sex marriages at the same time – Effect of recognition of same sex marriage entered into prior to Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) – Second marriage void under laws of City B – Declaration of annulment made. Legislation: Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) Pt VA, ss 23B, 23B(1), 88C, 88D, 88D(4)(a), 88EA
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) ss 70, 70(2)
Division: Division 1 First Instance Number of paragraphs: 14 Date of last submission/s: 16 December 2024 Date of hearing: 23 September 2024 Place: Parramatta Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Watts McCray Lawyers Solicitor for the Respondent: Mr Leong, Lander & Rogers ORDERS
PAC 1621 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LINDGREN
Applicant
AND: MS ASKANIOS
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT DECLARES THAT:
1.The purported marriage between the parties entered into in 2011 in City B, USA, is a nullity.
THE COURT ORDERS THAT:
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindgren & Askanios has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
This is an application for a decree of nullity under s 51 of the Family Law Act 1975 (Cth) in relation to the marriage between the applicant and the respondent entered into in 2011 in City B, USA. The respondent did not oppose the applicant’s application seeking a decree of nullity.
BACKGROUND
The respondent’s evidence is that she was under the impression that the wedding was a commitment ceremony. The respondent says she only became aware that the parties had been married when she was provided with a copy of the marriage certificate sometime in 2023 during the parties’ parenting proceedings.
At the time of the parties’ marriage, the respondent was already married to Ms C. The marriage between the respondent and Ms C was entered into in 2010 in State D, USA. A divorce order was granted in respect of that marriage by a Judicial Registrar in 2022.
The parties separated in October 2019 (on the respondent’s case) or August 2022 (on the applicant’s case). Final parenting orders in relation to the parties’ children were made on 25 October 2023.
The grounds on which marriages are void are set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”). Subsection 23B(1) provides:
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties was, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties was not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties was not of marriageable age;
and not otherwise.
Part VA of the Marriage Act sets out the law in relation to marriages in a foreign country, providing:
88C Application of Part
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or
…
(2)Where a marriage (not being a marriage referred to in subsection (1)) that was solemnised, whether before or after the commencement of this Part, in a foreign country:
(a)is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the local law; or
…
this Part applies to and in relation to the marriage from and including that time.
88D Validity of marriages
(1)Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.
(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).
…
(4)A marriage solemnised in a foreign country, being a marriage to which this Part applies, shall not be recognised as valid in accordance with subsection (1) at any time while the marriage is voidable:
(a)except in a case to which paragraph (b) applies—under the local law; or
(b)if the marriage was solemnised in a foreign country by or in the presence of a diplomatic or consular officer of another foreign country–under the law of that other foreign country.
At the time of both the respondent’s marriage to Ms C in 2010 (“the first marriage”) and the parties’ marriage in 2011 (“the second marriage”), the Marriage Act included the following provision:
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.
Section 88EA of the Marriage Act was repealed by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). The potential retrospective effects of the changes are addressed in s 70 of the Act which provides:
70 Application of amendments
(1)Except as provided by subitem (2), the amendments made by this Schedule only apply in relation to a marriage (within the meaning of the amended Act) that takes place at or after the commencement of this item.
(2)Part VA of the amended Act (recognition of foreign marriages) applies at and after that commencement in relation to a marriage (within the meaning of the amended Act), even if the marriage took place before that commencement.
(3)For the purposes of determining whether parties to a marriage are within a prohibited relationship as mentioned in paragraph 88D(2)(c) of the amended Act (as it applies because of subitem (2)), paragraph 23B(2)(b) of the amended Act applies.
At the time that the respondent’s second marriage was entered into in City B, the first marriage in State D was not recognised as a valid marriage in Australia as it occurred before the 2017 amendments to the Marriage Act. However, neither was the marriage in City B recognised as a valid marriage in Australia at the time that it was entered into as it was prior to the 2017 amendments.
The primary purpose of s 70(2) of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) was to recognise same sex marriages that had been entered into overseas prior to the amendments. In cases where parties had only entered into a single same sex marriage, the provision operates without difficulty. In this case, however, the recognition of each marriage (if both were valid in the jurisdiction in which they were made) under Australian law occurred at the same time. This would appear to result in recognition of a polygamous marriages at the same time. However, following the respondent’s divorce in 2022 (from her partner that she married in State D), she has not been in two marriages at the same time.
The parties relied on s 88D(4)(a) of the Marriage Act, arguing that as the second marriage is void under City B law, it cannot be recognised in Australia.
The parties provided expert evidence of the law of City B, in order to prove that polygamous marriages were not lawful in that State of the USA at the relevant time and are treated as void ab initio. I accept that evidence. The purported City B marriage was a nullity, and therefore, it cannot be a recognised marriage pursuant to ss 88C and 88D(4)(a).
It is therefore appropriate to grant a decree of nullity with respect to the purported marriage in City B, USA in 2011.
The parties did not make an application for costs and I therefore make no order as to costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 21 February 2025
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