MATHUS & PEWS

[2011] FamCA 56

FAMILY COURT OF AUSTRALIA

MATHUS & PEWS [2011] FamCA 56

FAMILY LAW – MARRIAGE – validity – where the husband was still lawfully married to his first wife at the time the parties were married – orders that the marriage between the parties be declared null and void

Marriage Act 1961 (Cth) ss 23, 23A & 23B(1)
Marriage Amendment Act 1985

APPLICANT: Mr Mathus

RESPONDENT: Ms Pews

FILE NUMBER: ADC 1176 of 2010

DATE DELIVERED: 28 January 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: DAWE J

HEARING DATE: 28 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Elekwachi

SOLICITOR FOR THE APPLICANT: FNE Lawyers

COUNSEL FOR THE RESPONDENT: Appears in person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The marriage solemnised at Adelaide on … December 1986 between the parties is declared to be absolutely null and void.

IT IS NOTED that publication of this judgment under the pseudonym Mathus & Pews is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1176 of 2010

MR MATHUS

Applicant

And

MS PEWS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by the husband in the initiating application filed on 20 August 2010.  The orders that the husband seeks are a declaration as to the validity of the marriage of the respondent and the applicant which was solemnised on … December 1986.  At the same time on 20 August 2010 the husband filed affidavits setting out the relevant history of the parties’ relationship and the marriage ceremony which took place in December 1986.

2. This morning, before me, the husband is present and is represented by counsel.  The wife is also present.  She has difficulties with English, but has had the permission of the Court to have a friend assist her.  I am satisfied that with that assistance she understands the nature of the proceedings and is not opposing the husband’s application.

3. The facts are set out in the affidavit of the husband which indicates that he was married previously in Romania.  A marriage took place in July 1975.  He separated from that wife in 1979 and migrated to Australia in 1983.

4. The affidavit sets out the circumstances in which he met the respondent to these proceedings, Ms Pews, in September 1986.  They travelled together to Australia.  The applicant and the respondent underwent a church ceremony for marriage on … December 1986.  That was conducted by a reverend of the Romanian Orthodox Church.  Annexed to the affidavit is a copy of a marriage certificate;  annexure 1, which appears to be signed by both the applicant and the respondent.  In that certificate of marriage the husband is described as “divorced” and the wife is described as “a never validly married person”.  The document appears to be signed by the celebrant.

5. The affidavit of the applicant husband in these proceedings refers to the fact that, at the time of the marriage ceremony, he was not divorced from his first wife and she was still alive. He maintains that he thought the ceremony was simply a ceremony and was not a valid marriage. Be that as it may the document also annexes to it a divorce certificate indicating that the husband divorced his first wife by proceedings in the Family Court of Australia in September 1995. It is clear on the face of the documents, therefore (and not opposed by the respondent wife in these proceedings) that at the time of the ceremony, which took place between the applicant and the respondent, the applicant husband was still validly married to his first wife. He therefore falls within the description of a person lawfully married to some other person within the provisions of sections 23 and 23A of the Marriage Act 1961 (“the Marriage Act”).

6. I refer to both sections because one of the divisions of the Marriage Act applies to marriages solemnised before the commencement of section 13 of the Marriage Amendment Act 1985 (“The Marriage Amendment Act”) and the other division refers to marriages solemnised after that commencement date. Neither counsel for the applicant husband nor myself was able to readily ascertain the date on which the provisions of section 13 of the Marriage Amendment Act were proclaimed, however, it is clear that the Marriage Amendment Act itself was subject to assent in March 1985.

7. As previously indicated this marriage took place in December 1986 and therefore it is likely to be a marriage which falls within the Division 2 of Part IV of the Marriage Act and that, therefore, the provisions of section 23B(1) apply, namely that the marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person. That is in similar terms to the relevant provisions of section 23.

8. I am satisfied on the evidence before me, and noting that there is no opposition by the respondent wife, that at the time of the marriage ceremony, which took place on … December 1986, the husband was still lawfully married to his first wife and that therefore the marriage between the husband and the respondent wife in these proceedings is void.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 28 January 2011.

Associate: 

Date:  14 February 2011