LYONS & LYONS

[2019] FamCA 31

FAMILY COURT OF AUSTRALIA

LYONS & LYONS [2019] FamCA 31

FAMILY LAW – NULLITY – where the Applicant seeks a decree of nullity – where at the time of the marriage ceremony the Applicant was already married – where the marriage is declared void – where the matter is referred to the Attorney-General’s Department

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

APPLICANT: Mr Lyons

RESPONDENT: Ms Lyons

FILE NUMBER: BRC 12621 of 2018

DATE DELIVERED: 25 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Wiltshire Family Law

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The marriage solemnised at B Town Club, Queensland, Australia on … 2018 between the Applicant Mr Lyons and the Respondent Ms Lyons (nee D) is void.

AND IT IS FURTHER ORDERED THAT

1. A Registrar of this Honourable Court forward a copy of the Initiating Application filed 30 October 2018, a copy of the affidavit material filed by both the Applicant and the Respondent in the proceedings, a copy of the written submissions headed Document to be Filed Pursuant to Rule 24.01(1)(h) of the Family Law Rules filed on 18 January 2019 and a copy of this Order and the Reasons for Judgment to the Attorney-General’s Department, under cover of a letter directing the Attorney-General to my comments in relation to the possible commencement of proceedings against the Applicant for the offence of bigamy.

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 Lyons & Lyons 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 BRISBANE

FILE NUMBER: BRC 12621 of 2018

Mr Lyons

Applicant

And

Ms Lyons

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Initiating application filed 30 October 2018, an order is sought in the following terms:  “That the marriage solemnised at [B Town Club] situated at … between the applicant, Mr Lyons, born … 1988 and the respondent, [Ms Lyons] (née [D]), born … 1992, is declared to be absolutely null and void”. 

2. The Applicant, Mr Lyons, was born in 1988.  The Respondent, Mrs Lyons, was born in 1992.  It appears on the Applicant’s evidence that they commenced their cohabitation in about early November 2016. As already indicated by reference to the order sought, they married in 2018. 

3. The basis of the Application prosecuted by the Applicant in seeking a declaration of nullity in relation to that marriage ceremony is that he was, at that time, married to a former partner as a consequence of what is accepted to have been a valid marriage ceremony that he and that person participated in in the US. 

4. His intention, supported by the Respondent, is that, if an order is made in relation to their marriage such that it is declared to be void, he will commence proceedings for and obtain a divorce order in relation to his existing marriage, and then, once the appropriate time constraints are observed, he and the Respondent will remarry.

5. This factual scenario came to pass because, on the evidence, the Applicant and his former partner, Ms C, travelled to City E in the United States of America for a holiday in 2015.  Whilst there, and under the influence of alcohol, they attended at the F County Clerk's Office and were married by a celebrant. 

6. The evidence establishes that the Applicant and Ms C separated in June 2016.  I accept his evidence, given in these proceedings, to the effect that he at least proceeded on the basis that he did not appreciate that their marriage in City E was binding upon him and effective in Australia.

7. The Applicant and the Respondent subsequently became engaged and married in 2018. 

8. The Applicant’s evidence establishes that, on 23 October 2018, his sister first telephoned him about a text communication she had received from Ms C.  That communication, it seems to me, amounted to a response to an inadvertently sent communication.  In any event, in it Ms C raised, correctly, that she and the Applicant were still married and that steps needed to be taken before either of them could remarry.

9. The Applicant’s evidence is that his sister received this text communication from Ms C about three weeks before he and the Respondent married but for reasons that are unexplained, did not forward it to him, or give him notice of it, until 23 October 2018.  I accept that, on 24 October 2018, the Applicant’s sister forwarded him a copy of the actual text message; I also accept his evidence to the effect that he immediately sought legal advice and was advised that, consistent with what Ms C had asserted in her text message, he and she were still married.

10. I also accept the Applicant’s evidence that he immediately set in train this Application - as is apparent by the fact that it was filed in the Court on 30 October 2018.  So I certainly accept that there has been no delay whatsoever on the part of the Applicant in moving the Court to deal with the unfortunate set of circumstances that have arisen.

11. I accept the thrust of the submission made by Ms Stevenson to the effect that it is clear from this timeline of actions that the Applicant did not, in essence, put his head in the sand or ignore the issue.  I also note her submission to the effect that his actions are more consistent with someone having only just learned of the fact of them still being married to their former partner than they are with the actions of someone who knowingly entered into the marriage with the Respondent in such a state. So I note that that submission has been made; I certainly think it is a submission that is open on the evidence relied upon by the Applicant.

12. As I have said, the Application for nullity was then filed on 30 October 2018.

13. I accept the evidence given by both the Applicant and the Respondent as to their intentions once this unfortunate issue is remedied; as to their respective actions so that they can, to use the Respondent’s words, in essence, get on with their lives together: get on with their relationship, remarry and continue into the future.  I accept that aspect of the evidence given by each of them.

14. Section 51 of the Family Law Act1975 (Cth) provides that an application under the Act for a decree of nullity of marriage shall be based on the ground that the marriage is void. Pursuant to section 23B(1)(a) of the Marriage Act1961 (Cth), a marriage is void where either party is, at the time of the marriage, lawfully married to someone else. Therefore, it is necessary to consider whether, as the time of the marriage in 2018, the Applicant was lawfully married to someone else.

15. I note that the submissions filed on behalf of the Applicant accept that the marriage ceremony in which he participated in the United States of America (and more particularly in the State of G) was performed by a legitimate marriage celebrant.  There were witnesses present.  The submissions also accept, rightly, that the marriage solemnised in City E is a marriage which is legally valid in Australia and also, therefore, that whilst it is clear that the Applicant and Ms C separated on a final basis in June 2016, they remain legally married.

16. Consequently, the requirement that the Applicant be lawfully married to someone else at the time of the 2018 marriage is established. 

17. I also note that section 88C of the Marriage Act1961 (Cth) provides that Part VA Recognition of Foreign Marriages applies in relation to every marriage solemnised in a foreign country where, under the local law, the marriage was, at the time when it was solemnised, recognised as valid. In this case, there is evidence, namely, the Marriage Certificate issued by the State of G, which establishes that, within that State, the marriage solemnised in City E is recognised as valid. Therefore, I accept that Part VA of the Marriage Act1961 (Cth), applies in the current circumstances.

18. Section 88D of the Marriage Act1961 (Cth), which is contained within that Part, relevantly provides that, subject to that section, the marriage to which the Part applies shall be recognised in Australia as valid. Subsection (2) of section 88D outlines circumstances which, if they exist, mean that a marriage shall not be recognised as valid. In the present case, none of those particularised circumstances contained within section 88D(2) of the Marriage Act1961 (Cth), exist.

19. Therefore, I find that the marriage solemnised in City E is a marriage which is recognised as valid in Australia. Therefore, I find that the terms set out in section 23B(1)(a) of the Marriage Act1961 (Cth), are established in that, at the time of his marriage to the Respondent, the Applicant was lawfully married to Ms C. Consequently, and by way of application of section 23B(1)(a) of the Marriage Act1961 (Cth), the marriage that was entered into by the parties to this Application, solemnised between them in B Town in 2018, is void and an order will issue to that effect.

20. I have accorded to Ms Stevenson, as is appropriate, the opportunity to make submissions to me to persuade me that I should not make an order directing a Registrar to forward the material filed in the proceedings to the Attorney-General’s Department so that the Attorney-General can determine whether proceedings for the offence of bigamy should be commenced against the Applicant.  Such decision is a matter for the Attorney-General. 

21. Given the evidence before the Court - which I accept is necessary in order to achieve that which is necessary to remedy this very unfortunate situation - I consider that I am obliged to make an order directing a Registrar of the Court to forward a copy of the material filed by the parties and the Application, together with a copy of the Reasons for Judgment I have delivered orally (once settled) under cover of letter directing the Attorney-General to my comments in relation to the determination of whether to cause proceedings to be commenced against the Applicant for the offence of bigamy. 

22. I do so noting and emphasising my acceptance of the Applicant’s contention that he honestly believed that the marriage he had entered into in City E was not one which was valid or validly recognised in Australia or was not a marriage that would be recognised as valid in Australia. 

23. It is a matter, of course, for the Attorney-General as to the decision to be made on the material, together with, no doubt, a consideration of the comments I have made in delivering the Reasons just delivered.  

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 25 January 2019.

Associate:

Date:  30 January 2019