Marquis and Marquis

[2012] FamCA 137

FAMILY COURT OF AUSTRALIA

MARQUIS & MARQUIS [2012] FamCA 137

FAMILY LAW - NULLITY - Whether consent obtained by fraud - where husband claims wife only married him to obtain Australian citizenship - where the fraud must be to the wife’s identity or the nature of the marriage ceremony to ground a declaration of nullity - husband’s application dismissed

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

In the marriage of Hosking (1995) FLC 92-579

APPLICANT: Mr Marquis

RESPONDENT: Ms Marquis

FILE NUMBER: SYC 7122 of 2011

DATE DELIVERED: 16 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Otto Stichter & Associates

Orders

1. That the application for a decree of nullity filed 23 November 2011 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marquis & Marquis 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 SYDNEY

FILE NUMBER: SYC 7122 of 2011

Mr Marquis

Applicant

And

Ms Marquis

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application filed by the husband, Mr Marquis seeking a declaration of nullity in relation to his marriage to the wife, Ms Marquis.

2. It is not disputed that the husband and the wife met in Europe in 1999. At that time, the wife was separated from her then husband and living with her parents and the husband had been divorced. On the 13th of November 1999, the husband asked the wife to marry him and she agreed. The parties then lived together until the husband's return to Australia in January 2000.

3. The husband and the wife were married in Europe on 27 May 2000. In June 2000 the husband returned to Australia and applied for a visa to allow the wife to join him in Australia.  That application was initially unsuccessful and the husband persisted with his application. Between 2000 and 2005 the husband travelled to Europe to spend time with the wife on seven or eight occasions.

4. The wife’s visa was granted on the 30th of May 2005 and the wife travelled to Australia. The parties then lived together in Sydney until June 2010 when they separated.

5. In the proceedings before me the husband relied upon an affidavit by himself and affidavits by his former wife and his daughter.

6. The husband and his witnesses all gave evidence of conversations with the wife, after her citizenship had been confirmed, where she said that she had only married the husband to get Australian citizenship. The wife denies those conversations but it is on that evidence that the husband seeks to have the marriage annulled.

7. The grounds relied upon in his application are set out in paragraph 1 as follows:

1.That the marriage between the Applicant and the Respondent celebrated on […] May 2000 in [Europe] be declared a nullity on the grounds of fraud and misrepresentation.

1. Pursuant to section 51 of the Family Law Act, an application for a decree of nullity must be based on the ground that the marriage is void.

2. The grounds on which a marriage is void are set out in section 23B of the Marriage Act:

   Grounds on which marriages are void

   (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 is, 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 is not a real consent because:

   (i)  it was obtained by duress or fraud;

   (ii)  that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   (iii)  that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (e)  either of the parties is not of marriageable age;

   and not otherwise.

3. Misrepresentation is not a ground but I interpret the husband’s application to use the words “fraud” and “misrepresentation” interchangeably.

4. The law in relation to fraud in a nullity context has been the subject of extensive review by Lindenmeyer J in his judgement in In the marriage of Hosking (1995) FLC 92-579. There His Honour after considering the case concluded:

   The remedy of a decree of nullity is concerned with the marriage itself, that is, the act of becoming married. This occurs when the ceremony of marriage is performed. If there has been fraud as to the other party or as to the nature of that ceremony, or there has been a mistake about it, the consent given by the party so affected is not a real consent and the marriage is void ab initio. 

   In this way, a distinction must be drawn, in cases where a party alleges a “marriage of convenience”, between how such a marriage is viewed by different areas of the law. This Court, in hearing nullity applications, is not concerned with how that newly acquired status may be used later. There may be, in appropriate circumstances, numerous consequential advantages that a party may obtain by being married. These could be in the arena of taxation, social security, immigration and so on. Likewise, there could be, motivating one or other of the parties, expectations of such consequential advantages, financial or social to be gained by entering into the marriage.

   And later:

   In summary, then, I conclude that the term “fraud”, as it appears in s 23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage.

5. The husband’s application is based on his belief that the marriage was a marriage of love and commitment. If this was not so, and I cannot make any finding to determine that issue, he is understandably distressed, but this does not constitute a ground for the relief he seeks. None of the material upon which he relies suggests that there was any fraud or misrepresentation (to use his word) about the wife’s identity or that he was in any way mislead about the nature of the ceremony in which he participated.

6. Accordingly, the application must be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 March 2012.

Associate: 

Date:  16 March 2012