Liu and Wu

[2014] FamCA 1011

FAMILY COURT OF AUSTRALIA

LIU & WU [2014] FamCA 1011

FAMILY LAW – NULLITY – DIVORCE – DECLARATION – Where the parties were married twice -   where the applicant seeks declaration as to the invalidity of her Australian marriage to the respondent – Where applicant seeks a divorce order in respect of the parties’ Chinese marriage.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Ms Liu

RESPONDENT: Mr Wu

FILE NUMBER: MLC 10563 of 2013

DATE DELIVERED: 13 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

SOLICITOR FOR THE RESPONDENT: In person

Orders

1.It is declared that the marriage of Ms Liu and Mr Wu entered into in Melbourne, Australia on … 2009 is not a valid marriage in accordance with the provisions of s 113 of the Marriage Act 1961 (Cth).

2.That the Registrar of Births, Deaths and Marriages (Victoria) note the declaration herein and amend its records accordingly.

3.That all extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Liu and Wu 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 MELBOURNE

FILE NUMBER: MLC 10563 of 2013

Ms Liu

Applicant

And

Mr Wu

Respondent

REASONS FOR JUDGMENT

introduction

1. The applicant, Ms Liu and the respondent, Mr Wu have married twice, first in China and on the second occasion, in Australia.  The law of Australia does not permit a husband and wife to marry again in circumstances where they have already entered into a valid marriage.

2. The application listed before me for hearing on 9 May 2014 was that of Ms Liu, who seeks a declaration that her marriage to Mr Wu formalised in Australia, being the second marriage between these parties, is not a valid marriage.  Further she seeks that a divorce order be granted in respect of their marriage in China.

background

1. The parties met in China in 2003 and began a relationship. In 2004, within a few months of meeting each other, the parties moved to Australia to live and study.

2. In 2007, the parties jointly returned to China to visit their respective families. In mid 2007, whilst in China, the parties were married in City D in the Z province. It is this marriage that is the subject of the application for a divorce order.  A certificate of marriage and its English translation is annexed to the applicant’s affidavit in support of her application filed 28 March 2014.

3. After marrying in China, the parties returned to Australia and continued their studies.

4. The applicant deposes that upon returning to Australia, the parties were told by friends that they “should also get married in Australia under Australian law. [The parties] never questioned this advice and went to the Registry office in Melbourne and were married there [in] 2009.” It is this marriage that is the subject of the application for a declaration of invalidity now before me. A marriage certificate in respect of that marriage is annexed to the applicant’s affidavit filed 28 March 2014.

5. In November 2012 the parties separated and were subsequently involved in property proceedings in the Federal Circuit Court in which final property orders were made on 2 April 2013.

6. On 4 December 2013 the applicant filed for a divorce in the Federal Circuit Court. This application was made in respect of the applicant’s Australian marriage.

7. On 21 January 2014, the applicant filed an amended application for divorce, in which she sought a divorce in respect of her Chinese marriage.

8. On 30 January 2014, the applicant’s application for a divorce order was heard in the Federal Circuit Court. Notwithstanding the order made by Registrar Riddiford that day that the Chinese marriage be dissolved, a divorce order subsequently issued from the Court terminating the Australian marriage on 1 March 2014. Given the error on the face of that order, the papers have been referred to the Registry for correction of that order pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth).

procedure

1. In addition to the amended application for divorce filed 21 January 2014, the applicant has filed an application in a case on 21 January 2014 and an initiating application on 28 March 2014. It is the initiating application which was before me on 9 May 2014.

2. The applicant has filed in support of her various applications, affidavits on 21 January 2014 and 28 March 2014. The applicant has also filed affidavits of Ms Ebejer on 20 January 2014, and Ms F on 1 May 2014 wherein they each depose as to the efforts made to serve the applications and supporting affidavits on the respondent.

3. The respondent has not returned an acknowledgement of service. Ms F deposes that on 29 April 2014 she initiated a telephone call to the respondent in which she informed him of the hearing on 9 May 2014, and to which he replied “that he was not available and was busy that day…” Notwithstanding this conversation, the respondent was present in Court and participated in the hearing on 9 May 2014.

4. As the respondent Mr Wu was self-represented on that day, I stood the matter down to provide him the opportunity to speak with a duty lawyer.

5. Mr Wu chose not to speak with the duty lawyer during the time provided but  upon the hearing proceeding confirmed that he had used that time to read the applicant’s application and confirmed that he supported that application.

Legal principles

1. Section 113 of the Marriage Act 1961(Cth) provides that:-

   (1)  Except in accordance with this section:

   (a)  persons who are already legally married to each other shall not, in Australia or under Part V, go through a form or ceremony of marriage with each other; and

   (b)  a person who is authorised by this Act to solemnise marriages shall not purport to solemnise a marriage in Australia or under Part V between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.

2. Section 113(2) of the Marriage Act provides that where parties have gone through a marriage ceremony and there is doubt as to whether it is a legal marriage or where the ceremony took place outside of Australia and there is a question as to whether it is recognised as a valid marriage by a court in Australia, such parties may go through a form or ceremony of marriage with each other which is recognised under the Family Law Act and the Marriage Act.  Sub sections (3) and (4) of the Marriage Act set out the steps required in such circumstances.

3. It is common ground between the parties that the marriage they entered into in China in 2007 was a valid marriage. As noted above the Certificate of Marriage and its English translation have been annexed to Ms Liu’s affidavit in support of her application. At the hearing of her divorce application with respect to that marriage the presiding Registrar found that the marriage in China was proved and on that basis granted the order for divorce. Accordingly, the exceptions set out at s 113(2) of the Marriage Act do not apply to the marriage subsequently entered into in Australia.

4. The effect of s 113 of the Marriage Act is to prohibit parties from entering into a marriage when they are already legally married.  What flows from that prohibition is that where persons do enter into such a marriage, that marriage so performed cannot be valid as it does not comply with the requirements set out in the Marriage Act.

5. I am satisfied on the basis of the evidence before me as to the circumstances of the parties’ marriage in 2007 in China, that the marriage in Australia, which occurred in 2009, is not a valid marriage, the parties at that time being already lawfully married to each other.  Accordingly, I will make a declaration as sought by the applicant. 

6. As a consequence of that declaration it follows that the records in relation to that marriage will require amendment.  I will make orders for the amendment of those records by the Registrar of Births, Deaths and Marriages.

7. The orders I will make are as follows:-

   1.It is declared that the marriage of Ms Liu and Mr Wu entered into in Melbourne, Australia on … 2009 is not a valid marriage in accordance with the provisions of s 113 of the Marriage Act 1961 (Cth).

   2.That the Registrar of Births, Deaths and Marriages (Victoria) note the declaration herein and amend its records accordingly.

   3.That all extant applications be otherwise dismissed.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 June 2014.

Associate: 

Date:  13 June 2014