LONG & KOUROS

[2016] FamCA 522

FAMILY COURT OF AUSTRALIA

LONG & KOUROS [2016] FamCA 522

FAMILY LAW – NULLITY – where the applicant seeks a decree of nullity in relation to the marriage solemnised between the parties in China – where the husband was at the time of the marriage married to another person – where the marriage is declared null and void.

Family Law Act 1975 (Cth) s 51

Marriage Act 1961 (Cth) s 23, 88F

APPLICANT: Ms Long

RESPONDENT: Mr Kouros

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 2346 of 2015

DATE DELIVERED: 24 June 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 24 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Casbarra

SOLICITOR FOR THE APPLICANT: Women’s Legal Service (SA) Inc

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the marriage solemnised in the Region B in the People’s Republic of China in 2011 between Ms Long (the applicant) and Mr Kouros (the respondent) be declared to be null and void.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Long & Kouros 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 ADELAIDE

FILE NUMBER: ADC 2346 of 2015

Ms Long

Applicant

And

Mr Kouros

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 11 April 2016, Ms Long, the applicant wife, filed an Initiating Application seeking orders that a marriage solemnised in Region B in the People’s Republic of China on 21 June 2011 with Mr Kouros, the respondent husband in the proceedings, be declared a nullity.

2. There have been various attempts made to bring to the attention of the husband the application.  As at the present date Mr Kouros has not filed a response or any affidavit material in reply.  It was thought that because of his lack of engagement with any formality in the proceedings that the hearing today would be undefended.

3. As matters have transpired and by way of clear proof that the respondent husband has received the documents and is aware of the proceedings, he appears today by telephone.  I am advised that, notwithstanding for a significant period of time he may have been residing in Europe for the purposes of this hearing, he is now in Sydney. 

4. I have asked him whether he wanted the proceedings to be adjourned either so that he could obtain legal representation or alternatively so that he could engage in the proceedings formally by filing a response and an affidavit.  He does not seek that accommodation and he is content for the matter to proceed today.

5. When asked the broad question as to whether he is generally opposed to the order sought by the applicant wife, the husband’s position is that if he was able to consent to the order, he would. It is not a matter of consent. It is a matter for the Court to determine whether the grounds are made out in respect of an application for a decree of nullity pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”).

6. However, the position adopted by the respondent husband is important in terms of the Court being able to rely upon the assertions of the applicant wife as to the history and the background and more relevantly the issues that may support a declaration of nullity. 

7. As will become apparent, the matter is not now complicated. 

8. There is significant material filed by the wife.  I rely upon the Initiating Application filed on 13 April 2016, the Affidavit filed in support of that application of the same date, the Application for Divorce filed by the wife on 26 June 2015 and a range of other affidavits filed by the wife in support of her application for dissolution of marriage.

9. I also have been provided with a copy of a marriage certificate by way of original and also certified true copy filed in the registry on 20 October 2015 as evidence of the marriage between the parties in 2011 in the Region B. 

10. As indicated, there is no evidence filed or relied upon by the husband but upon an invitation from me to indicate his attitude and/or to provide submissions in respect of those made by counsel to the wife, there are certain matters raised by the husband which I am prepared to accept for the purposes of this application. 

11. The parties met in 2010 and finally met in person in March 2011.  The husband travelled to Region B, China where the parties were married in 2011.  It is in respect of that marriage ceremony that the marriage certificate to which I have referred and bears the filing date of 20 October 2015 relates.  The marriage certificate will be exhibit 1 in the proceedings.

12. The formality of the wedding ceremony in 2011 was followed up by a reception ceremony a month later in order that the friends and family principally of the wife could join in the celebration.  The parties remained in China until the husband left China for Adelaide in August 2012 and on 19 October 2012, the wife and her daughter arrived in Australia and travelled to Adelaide.

13. The wife asserts that the marriage broke down on 15 October 2013.  For the purpose of this application, nothing turns on the basis or the reason for the breakdown of the marriage. 

14. The parties separated.  There were no children of the relationship.  The husband left Australia and returned to Europe and the wife, clearly determined to seek a divorce order in respect of her marriage to the husband in China, filed an application for divorce.

15. As part of that process, it became apparent to the wife that at the time of her marriage to him, he was at that time married to Ms C.  A divorce order in respect of the dissolution of the marriage between the husband in these proceedings and Ms C dated 9 October 2012 was annexed to the wife’s affidavit of 11 April 2016. 

16. I accept the accuracy and the validity of the divorce order annexed to the wife’s affidavit.  That document reveals that the husband was married to Ms C in 1993 and that the divorce order made on 9 October 2012 by Registrar Scholz was an order made upon the application of the husband.  The appropriate declarations were made by the Court and in particular relating to the three children of that relationship. 

17. The relevance is obviously not so much the date of the divorce order because it is in 2011 and establishes that at the time of the marriage to Ms Long, Mr Kouros was already married to Ms C.

18. The husband has responded to that summary or chronology of events by indicating that he accepts he was married to Ms C at the time that he married the wife in these proceedings but that as a result of the breakdown of the relationship with Ms C, the parties underwent what appears to be a settlement of property or, perhaps, a resolution of parenting arrangements. 

19. There was some formality to the resolution of issues in respect of his marriage to his former wife.  He considered that what had resulted from that resolution amounted to a divorce order.  Whilst he accepts that that is not the case, the reality is he now accepts that he was clearly still married at the time that he married Ms Long. 

20. Whilst there is some uncertainty as to when the husband came to the realisation of the existence of his former marriage, nothing again turns on it for the purposes of this application. 

21. I am satisfied that by reference to s 88F of the Marriage Act1961 (Cth) (“the Marriage Act”) that I am able to find that the marriage or the purported marriage between the husband and the wife in 2011 in China was a marriage that could be recognised in Australia as valid.

22. I am satisfied that the marriage of the parties in China satisfied all of the requirements under Chinese law and that there is a comity of process apparent in respect of that ceremony which in any event would satisfy me that but for the existence of the husband’s former marriage, that would have been a marriage recognised in Australia. 

23. The test in respect of whether a marriage is void is to be found in s 23 of the Marriage Act. There are a number of grounds but s 23(1)(a) provides that a marriage is void where:

    …either of the parties was, at the time of the marriage, lawfully married to some other person.

1. I do not need to look further.  I am satisfied that in the circumstances of this case at the time that the parties to these proceedings were married in 2011 the husband was at all times married to another person.

2. On that basis, I am satisfied that it is appropriate to make the orders sought by the applicant wife and to grant a decree of nullity. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 24 June 2016.

Associate: 

Date:  30 June 2016