MICHELAKAKIS & MORAITIS

[2019] FamCA 202

FAMILY COURT OF AUSTRALIA

MICHELAKAKIS & MORAITIS [2019] FamCA 202

FAMILY LAW – MARRIAGE – NULLITY – Application for decree of nullity of marriage – Whether wife’s consent obtained by fraud – Where the wife asserted that the husband had made misrepresentations with respect to his faithfulness prior to the marriage – No grounds for nullity of marriage established – Application dismissed.

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

Al Soukmani and El Soukmani (1990) FLC 92-107
Deniz and Deniz (1997) FLC 90-252
Otway and Otway (1987) FLC 91-807

APPLICANT: Ms Michelakakis

RESPONDENT: Mr Moraitis

FILE NUMBER: MLC 14860 of 2018

DATE DELIVERED: 20 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 March 2019

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. The wife’s Application for a Decree of Nullity filed 21 December 2018 be dismissed and removed from the list of cases awaiting hearing.

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 Michelakakis & Moraitis 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 14860 of 2018

Ms Michelakakis

Applicant

And

Mr Moraitis

Respondent

REASONS FOR JUDGMENT

1. The application listed before me in the judicial duty list is the wife’s Application for a Decree of Nullity filed 21 December 2018. I am satisfied that the wife’s application was served upon the husband on 10 January 2019 however there was a dispute as to whether the husband had been served with a sealed copy of the affidavit filed in support of that application. Although the evidence has not been tested in circumstances where the affidavit of service did not refer to that affidavit and absent any other evidence I am not satisfied that the affidavit was served upon the husband.  

2. Notwithstanding the fact that the husband thought when the matter was stood down that he could leave the Court, and that he had not been served with the affidavit in question, a copy of the affidavit having been emailed to him, the matter was able to proceed with the husband appearing by telephone.

Legal Principles

1. An Application for a Decree of Nullity is founded upon the marriage being void (s 51 Family Law Act 1975). Pursuant to s 23B(1) of the Marriage Act1961 (Cth) (“the Marriage Act”) a marriage which takes place after the commencement of section 13 of the Marriage Amendment Act 1985 (Cth) 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.

2. The wife in this case relies upon s 23B1(d)(iii) of the Marriage Act. The wife referred me to the decision in Deniz and Deniz (1997) FLC 90-252 in which Frederico J found, in relation to a marriage between a Country A citizen and an Australian woman entered into by the husband for the purposes of securing his permanent residency in Australia, the husband not having “the slightest intention of fulfilling in any respect the obligations of marriage” that it was: “…not a case of consent being induced by trick, not as to identity or as to the nature of the ceremony, but as to the very concept of the marriage itself.” His Honour’s approach has generally not been supported and I do not propose to adopt his approach.

3. I prefer the line of authority which supports the more limited interpretation of the concept of “fraud”, being that it relates to the nature of the ceremony or the identity of the person that a party is marrying, and that the fact that a party to a marriage makes false representations to the other party is not sufficient to vitiate consent.

4. In Osman and Mourrali (1990) FLC 92,111 (“Osman”), Nygh J said as follows:

   “... if a person wished to go through a ceremony of marriage with a person whose identity he or she is aware of, then it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together for ever after.”

5. This was affirmed by McCall J in Otway and Otway (1987) FLC 91-807 when he said at page 76,087 that: “fraudulent misrepresentations relating to the quality of a person or as to future intentions was never regarded as sufficient to annul a marriage (Moss v. Moss (18970 P.263).”

6. And as Kay J said in Al Soukmani and El Soukmani (1990) FLC 92-107 (at page 77,712):“...there have to be some external indicia that can be measure at the time the ceremony is entered into and not something that can be subjectively measured by subsequent events…”

Discussion

1. The parties in this case were married in 2015 and it is common ground that they separated in late 2018.

2. The wife’s case was that her consent to the marriage was obtained by fraud in that prior to the marriage the husband had represented to her that he was sexually faithful to her. It is her evidence that she has since found out that he was not sexually faithful prior to the marriage and that had she known at the time of the marriage she would not have married him. Although in her affidavit she did not depose as to the date upon which she discovered the husband had been sexually unfaithful prior to the marriage, in submissions from the Bar table she said that she had found out late last year as a consequence of which the marriage has broken down. For his part the husband said that he had been baptised in 2017 and had admitted to the wife and sought her forgiveness for drinking a tequila shot off the stomach of a stripper at his buck’s party. He denied any sexual act. I am satisfied that in this case not only did the husband enter into the marriage with the intention of fulfilling the obligations of the marriage, that marriage continued until the wife alleges the husband admitted to her that he had not been sexually faithful to her prior to the marriage.

3. The wife knew the identity of the person she was marrying and the nature of the ceremony and in these circumstances has not established that her consent was obtained by fraud. Even if I were to accept the wife’s evidence, which is disputed by the husband, that the husband had contrary to his representations to her been sexually unfaithful prior to their marriage, that does not in my view amount to fraud vitiating the wife’s consent. It would not be unusual for parties to make representations to each other prior to their marriage in relation to all sorts of matters and arguably not unusual for a party to later discover or conclude that those representations were not true at the time they were made. As observed by Nygh J in Osman “... if it were are ground that a marriage could be annulled on the ground that a party was defrauded as to the intent to cohabit, where should the court draw the line? Love and affection are also regarded as essential to a marriage at least in the twentieth century: would lack of love base an application for annulment? Again, the production of offspring is a traditional concern of marriage, would a deception as to the intention to bear them or procreate them found an application? Where does one draw the line between attributes such as wealth, virtue, beauty or potency on the one hand and the fundamentals of marriage such as cohabitation, mutual love and support and the procreation of children of the parties?”

4. I am satisfied that even if the husband had made the fraudulent misrepresentation to the wife as she alleges to induce her to marry him this would not be a basis for the court to make a decree of nullity the wife seeks.  In these circumstances I propose to dismiss the wife’s application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 March 2019.

Associate: 

Date: 20 March 2019