LONGU & NJAMBA

[2018] FamCA 568

FAMILY COURT OF AUSTRALIA

LONGU & NJAMBA [2018] FamCA 568

FAMILY LAW – NULLITY – Application for declaration – Where applicant still married at time of subject marriage – Marriage declared a nullity.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23B

APPLICANT: Ms Longu

RESPONDENT: Mr Njamba

FILE NUMBER: PAC 710 of 2018

DATE DELIVERED: 30 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 May 2018

REPRESENTATION

APPLICANT – SELF REPRESENTED LITIGANT: Represented by Ms Ramjas on a duty basis

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders

1. That it be declared that the marriage between the applicant Ms Longu and the respondent Mr Njamba conducted at Suburb B, New South Wales on … 2013 is a nullity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 710  of 2018

Ms Longu

Applicant

And

Mr Njamba 

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a declaration that the marriage ceremony entered into between her and the respondent in Suburb B in 2013 is void and for a decree of nullity to be granted.

2. By reason of orders for substituted service made by a Registrar on 7 March 2018 and Affidavits as to Substituted Service filed by the applicant on 6 April 2018 and 10 May 2018 the Court is satisfied that the order for substituted service on the respondent husband has been complied with.

3. The application of the wife was listed before the Court on 22 May 2018. There was no appearance by or on behalf of the respondent husband.

4. It is appropriate that the application proceed to determination in the respondent husband’s absence.

background

1. The applicant was born in Country C, West Africa and is 31.

2. The applicant married her first husband in Country N, West Africa in a traditional wedding ceremony in 2003.

3. The applicant’s child with her first husband was born in 2006 and is presently aged 12.

4. The applicant came to Australia in 2009 with her first husband and their child on a refugee visa. The applicant cannot read or write English and can speak and understand only basic conversational English.

5. The applicant claims her first husband was aggressive and abusive towards her and after he left the family home in about 2011 they had no further communication and he was not involved in the parenting of their child.  

6. The applicant met the respondent, who was born in Country D, West Africa and is aged 43, in 2012 and commenced a relationship with him shortly thereafter.

7. In early 2013 the applicant’s first husband contacted her and told her “I got divorce”. The applicant deposes to not having been served with either the divorce application or the divorce order and to believing that her first husband had already obtained a divorce.

8. A divorce was indeed granted to the applicant’s first husband but not until 27 March 2013 by a Registrar of this Court. The divorce became absolute on 28 April 2013.

9. The applicant and respondent married in early 2013 in a civil ceremony in Suburb B. The applicant believing that she was free to do so.

10. The applicant and the present respondent separated in December 2015.

11. The applicant attended on the Parramatta Registry of the Family Court of Australia on 9 August 2017 to file an application for divorce from the respondent but was informed that her application for divorce could not be accepted as her divorce from her first husband had not become effective until 28 April 2013, over a month after the applicant’s marriage to the respondent.

12. The applicant subsequently attended on the duty solicitor at the court who assisted her in understanding the situation.

13. On 20 February 2018 the applicant filed her Application seeking an order that the marriage between her and the respondent be declared a nullity.  

applicable law

1. Pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”), a decree of nullity may be granted on the ground that the marriage is void.

2. Section 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

3. There is no evidence before the court as to the validity of the applicant’s first marriage and the applicant deposes to not being given a marriage certificate.

4. However, in granting the applicant’s first husband a divorce on 27 March 2013 the Registrar of this Court found that the marriage between the applicant and her first husband solemnised in Country N, West Africa in 2003 was proved on the basis of an Affidavit in Lieu of Marriage Certificate filed by the applicant’s first husband in support of his application for divorce.

5. Accordingly, I am satisfied that at the time the applicant participated in the marriage ceremony with the respondent in 2013 she was lawfully married to another person.

6. A declaration will be made that the marriage between the applicant and the respondent conducted at Suburb B, New South Wales in 2013 is a nullity

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 July 2018.

Legal Associate: 

Date:  30 July 2018