MENCO & MENCO

In *Menco & Menco*, Johns J of the Family Court of Australia considered an application for a decree of nullity. The applicant sought to have his marriage to the respondent declared void. The applicant had married his first wife in 1997, separated in 2004, and mistakenly believed he had divorced her that year. He subsequently married the respondent in October 2015, but was not legally divorced from his first wife until 2016.

The central legal issue before the court was whether the marriage between the applicant and the respondent was void *ab initio* due to the applicant's subsisting prior marriage at the time of the second ceremony. This required the court to consider the provisions of the *Marriage Act 1961* (Cth) concerning the validity of marriages.

Johns J reasoned that pursuant to s 23B of the *Marriage Act 1961* (Cth), a marriage is void if either party is already lawfully married to another person at the time of the ceremony. Applying this principle to the facts, the court found that as the applicant was still married to his first wife in October 2015, his subsequent marriage to the respondent was void. The court granted the applicant leave to proceed on an undefended basis.

Consequently, Johns J pronounced a decree of nullity of the marriage solemnised in October 2015 between the applicant and the respondent, on the ground that the marriage was void because the applicant was lawfully married to another person at that time. All other extant applications were dismissed.