MENCO & MENCO

[2020] FamCA 279

FAMILY COURT OF AUSTRALIA

MENCO & MENCO [2020] FamCA 279

FAMILY LAW – NULLITY – undefended – where the applicant married his first wife in 1997 – where they separated in 2004 and the applicant was under the impression he had legally divorced from his first wife that same year – where the applicant subsequently married the respondent in 2015 – where the applicant was not legally divorced from his first wife until 2016 – pursuant to s 23B of the Marriage Act 1961 (Cth) the second marriage is void as the applicant was still married to his first wife at the time of the parties’ marriage in 2015 – order that the marriage between the applicant and respondent be declared null and void.

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

APPLICANT: Mr Menco

RESPONDENT: Ms Menco

FILE NUMBER: MLC 693 of 2020

DATE DELIVERED: 11 March 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 11 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Westminster Lawyers, Mr Salce

THE RESPONDENT: No appearance

Orders

1. The applicant be granted leave to proceed on an undefended basis.

2. Pursuant to s 51 of the Family Law Act 1975 (Cth) I pronounce a decree of nullity of the marriage solemnised on … October 2015 at Suburb G in the state of Victoria between the applicant and the respondent on the ground that as at that date the marriage was void because the applicant was lawfully married to another person.

3. All extant applications be otherwise dismissed.

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 Menco & Menco 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 MELBOURNE

FILE NUMBER:  MLC 693 of 2020

Mr Menco

Applicant

And

Ms Menco

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Mr Menco, filed an Initiating Application on 23 January 2020 seeking a declaration of nullity in relation to his marriage to the respondent, Ms Menco.  The basis for that application is that on the date the applicant and respondent married, the applicant was married to another person. 

2. The parties in the current proceedings were married on … October 2015 and they continue to maintain a relationship.  The respondent does not appear at Court this day.  The respondent was called at the commencement of the day at approximately 10.00am, and she was also called prior to the commencement of this hearing at approximately 10.35am.  She has been served with the application and that is evidenced by the acknowledgement of service signed by her and dated 23 January 2020.

3. The matter first came before the Court on 24 January 2020.  That day, the matter was heard before Registrar Moser.  The orders made by Registrar Moser indicate that the respondent was present at that hearing.  That day, orders were made adjourning the application to this list on 11 March 2020 at 10.00am.  Further orders were made for the filing of additional material.  Having regard to that order, I am satisfied that the respondent has had notice of the hearing this day. 

4. In addition, since that hearing, the respondent has sworn an affidavit on 4 March 2020, which was filed on 6 March 2020.  The respondent deposes as follows:-

   [2]I have read the Application and Affidavit of the Applicant filed on 23 January 2020 and agree with the contents of those documents. 

   [2]I consent to the orders sought by the Applicant. 

   [3] I will not be present at the hearing on 11 March 2020 as I have prior commitment in Sydney on that date

   (As per the original)

5. I am satisfied, having regard to the content of the respondent’s affidavit that she is aware of this hearing and that she consents to orders being made in the terms sought by the applicant.  Having regard to those matters, I am satisfied that it is appropriate that the matter proceed in the respondent’s absence. 

6. In addition to his Initiating Application, the applicant relies upon his affidavits filed 23 January 2020 and 4 March 2020. The background to the matter is set out in detail in the applicant’s affidavit, filed 23 January 2020.  He there deposes to having entered into a marriage with Ms B Menco in City C, United States of America, on … March 1997.  He deposes that there is one child of that marriage, X, who was born in 2003.  He also deposes that he separated from Ms B Menco in about June 2004. 

7. At paragraph 8 of that affidavit, the applicant deposes that following the separation he received documents from his first wife, which he understood to be divorce papers.  He deposes that he signed those documents, that they were returned and that it was his understanding that as a result of his execution of those documents, that he had been divorced from his first wife in 2004. 

8. Following his execution of those documents, the applicant left the United States of America and commenced living in Country F.  He continued to live in Country F until about 2015.  Whilst in Country F, the applicant commenced his relationship with the respondent.  The applicant and the respondent married in Australia in 2015, it being the understanding of the applicant that he was already divorced from Ms B Menco. 

9. Following his marriage to the respondent, the applicant commenced the process of seeking a visa in Australia, which would enable him to work in this country.  It is as a result of that process that the applicant found that he was not in a position to prove that he had been divorced in the United States.  It was only in his efforts to obtain confirmation of that divorce that the applicant learned that the divorce application originally signed by him some years ago had only been entered and filed in the Court in the United States in 2016.  The date of divorce in respect of his first marriage, in fact, is … November 2016.  That is evidenced by Exhibit A-2, which is the decree of dissolution from the District Court of C County in D State.  Hence at the time the applicant married the respondent, he was already married to another person. 

10. Section 51 of the Family Law Act 1975 (Cth) (“the Act”) provides that:-

    An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

11. The onus is on the applicant to establish on the balance of probabilities that the marriage is void, pursuant to one of the grounds set out in s 23B of the Marriage Act 1961 (Cth) (“Marriage Act”). Section 23B(1)(a) of the Marriage Act provides:

    (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;

12. That is the ground relied upon by the applicant in support of his application for a decree of nullity.  The evidence of the applicant confirms that at the time of his marriage to the respondent, he was married to another person. 

13. Having regard to the material filed, I am satisfied that the marriage between the applicant and the respondent is void.  I am satisfied that at the time of the marriage between the applicant and the respondent, which was solemnised in 2015, the applicant was married to Ms B Menco.  The marriage between the applicant and Ms B Menco was not dissolved until after the date of the marriage between the applicant and the respondent. 

14. Having been satisfied as to those matters, I find that the marriage between the applicant and the respondent is void, and I will pronounce a decree of nullity of the marriage between the applicant and the respondent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 March 2020.

Associate: 

Date:  11 March 2020