MOK & SUWAN
[2021] FamCA 10
•11 January 2021
FAMILY COURT OF AUSTRALIA
| MOK & SUWAN | [2021] FamCA 10 |
| FAMILY LAW – MARRIAGE – NULLITY – Application for declaration of nullity of marriage – Where it is alleged that at the time of the marriage the husband was lawfully married to another person – Application granted |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) ss 23, 23B |
| FIRST APPLICANT: | Mr Mok |
| SECOND APPLICANT: | Ms Suwan |
| FILE NUMBER: | HBC | 1019 | of | 2020 |
| DATE DELIVERED: | 11 January 2021 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 11 January 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kang |
| SOLICITOR FOR THE APPLICANT: | Rivers Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Kang |
| SOLICITOR FOR THE RESPONDENT: | Rivers Lawyers Pty Ltd |
Orders and declarations
It is declared that the marriage between Mr Mok (‘the husband’) and Ms Suwan (‘the wife’) solemnised in 2018 in Country B (‘the Marriage’) is void.
Consequently a decree of nullity in relation to the Marriage is granted.
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 Mok & Suwan 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 HOBART |
FILE NUMBER: HBC1019/2020
| Mr Mok |
First applicant
And
| Ms Suwan |
Second applicant
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
By way of a joint Initiating Application filed 14 October 2020 Mr Mok (‘the husband’) and Ms Suwan (‘the wife’) seek an order declaring that their marriage celebrated in Country B in 2018 is void and that the marriage is a nullity. The husband and wife were jointly represented by Mr Kang of Rivers Lawyers Pty Ltd.
The basis of that application is that the husband was, at the time of the parties’ marriage in 2018, lawfully married to another person.
BACKGROUND
The husband was born in 1990 in Country C. At the time of the hearing was aged 30. He presently lives in Hobart, Tasmania.
The wife was born in 1983. She is aged 37. She also presently lives in Hobart, Tasmania.
The husband and Ms D (‘the husband’s first wife’) met in 2013. The husband was living in Country C at the time and the husband’s first wife was living in Country F. Their relationship developed over time and they were subsequently married in Country F in 2014 (‘the husband’s first marriage’).
Conflict arose during the first marriage between the husband and the first wife and their relationship broke down. They separated on 10 April 2015, signed a deed of separation on 26 June 2015 and commenced divorce proceedings. Those proceedings did not lead to a divorce. The husband had remained in Country F to continue his studies.
In April 2016 the husband and wife met and became friends. The husband and wife’s friendship flourished and they eventually commenced living together in July 2017. They married in Country B in 2018 (the husband’s second marriage).
In 2018 the husband and the wife decided to move to Australia so that the husband could continue his studies in Tasmania. On 6 March 2018 the husband and wife applied for and were granted tourist visas. The parties arrived in Sydney, Australia on the 18 April 2018. The parties met with their educational consultant to arrange for a student visa for the husband and a partner visa for the wife.
On the 18 May 2018 the wife had to return to Country B because a condition of “no further stay” was applied to her tourist visa.
On 23 May 2020 the husband’s student visa was granted. The wife’s partner visa was refused on 7 June 2018.
On 28 June 2018 the wife applied for a student visa which was granted on18 July 2018. The wife returned to Australia on 1 August 2018 and the husband and the wife resumed living together in Hobart, Tasmania.
The husband and the wife are both presently resident of Australia and are domiciled in Australia.
On the 16 October 2019 the husband filed in the Federal Circuit Court of Australia application for a dissolution of the husband’s first marriage. That application for divorce was granted on 13 December 2019.
On 14 October 2020 the husband and the wife filed a joint Initiating Application in the Family Court seeking a declaration that the husband’s second marriage was a nullity.
On 27 November 2020 that nullity application was listed for hearing before me. The proceeding was adjourned to today to enable the parties to adduce evidence as to whether polygamous marriage was permitted in Country B on the date of the husband’s second marriage.
THE EVIDENCE
These proceedings were commenced by an application filed 14 October 2020 and was listed for hearing before me today. The application is supported by a number of documents:-
(a) an Initiating Application filed 14 October 2020;
(b) an Affidavit of the husband filed 14 October 2020;
(c) Certified Translations of the Marriage Certificates in respect of the husband’s first marriage and the husband’s second marriage;
(d) an Affidavit of the husband filed 10 November 2020;
(e) an Affidavit of the wife filed 10 November 2020;
(f) a further Affidavit of the wife filed 10 November 2020; and
(g) an Affidavit of Mr G filed 16 December 2020.
The husband
The husband in his affidavit filed 14 October 2020 deposes that had previously been married. He says that he and his first wife he met via an App ‘Penpal” in April 2013 while he was living in Country C. Their friendship flourished and in December 2013 the husband’s first wife travelled from Country F to Country C, where the husband was living so that they could spend time together. Prior to the husband’s first wife returning home the husband says that they promised one another they would marry and live together in Country F.
The husband and his first wife entered Country F on 10 February 2014 and in 2014 they were married. The husband deposes in his affidavit[1] that over time their relationship became strained and they separated on 10 April 2015 and signed a deed of separation on 26 June 2015. The husband’s first wife was pregnant with their child. The husband says that after he separated from his first wife he remained in Country F to continue his study.
[1] Filed 14 October 2020.
The husband met the wife on 4 April 2016 through a mutual friend at dinner and they commenced a relationship a short time later. The husband and wife began living together on 15 July 2017.
In 2018 the parties decided to move to Australia.
The husband deposes in his affidavit[2] that he and the wife saw an educational consultant to assist them with this process. The husband asserts that he was told by the educational consultant that he should apply for a tourist visa rather than a student visa because he needed to commence his study by April 2018. As a consequence of that advice the husband says he registered for a language course commencing in Australia on 3 April 2018.
[2] Ibid.
The husband asserts that while preparing for the admissions process he was also “in the process” of finalising his separation and divorce from his first wife. The husband says that because of the risk that the wife would not be accepted into Australia on a partner visa they brought their marriage forward, on the advice of the educational consultant, from April 2018 to early 2018 signing their marriage registration on that day. The husband says they did not have a wedding or any other celebration.
On 6 March 2018 the husband says that he and the wife applied for and were granted an Australian tourist visa. The parties arrived in Sydney, Australia on the 18 April 2018 where they met the educational consultant and paid her fees. The husband says the educational consultant applied for his student visa and the wife’s, subsequent, entrance visa.
In his trial affidavit filed 14 October 2020 the husband asserts that he received news that :-
11. I was still going through my divorce with [the husband’s first wife] at that time, when I received news from the Country F lawyer managing my divorce that [the husband’s first wife] had given up her Country F permanent residency for which it was no longer possible to proceed with the divorce.
12. In addition, the condition of ‘No further stay’ was applied to [the wife’s] tourist visa, for which she was unable to apply for any other visa and had to return to Country B on 18 May 2018.
13. In the meantime, my student visa application was granted on 23 May 2018, the partner visa was processed on 29 May 2018 … and it was refused on 7 June 2018.
The husband’s says in his affidavit[3] that further documentation was provided to the educational consultant to apply for a student visa for the wife and on 18 July 2018 the wife’s partner (sic) visa was granted.
[3] Ibid.
The husband’s evidence is that he obtained legal advice that he was able to apply for an international divorce from his first wife. As a consequence the husband filed a divorce application in the Federal Circuit Court of Australia on the 16 October 2019 together with his supporting application and an affidavit from the husband’s first wife.
The husband says he attended Court on the 13 October 2019 and the divorce from his first wife was granted.
The wife
The wife filed two affidavits on 10 November 2020 in support of the parties’ joint application.
In her second affidavit filed at 7.58pm on 10 November 2020 the wife sets out the history of the parties’ relationship, their visa applications and subsequent travel to Australia confirming the husband’s version of events insofar as they related to her.
The wife deposes in her first affidavit filed on 10 November 2020 that while the husband was preparing for admission and visa process she knew he was finalising his divorce from his first wife.
Attachment 4 to the husband’s affidavit is a certified translation of the husband and wife’s Registration of Marriage in Country B and their Marriage Certificate. In terms of their separate conjugal status the Registration of Marriage reflects that each of the parties “are not married to any other person and have never registered a marriage at any registry office before and that “prior to registering this marriage, both parties have cohabited for 3 years”.
While this may have accurately described the wife’s marital status, it did not apply to the husband. It is central to his application that at all material times he was married to his first wife and was aware that the marriage remained intact until the divorce was granted in on 13 December 2019.
THE LAW IN RELATION TO NULLITY OF MARRIAGE
Pursuant to s 51 of the Family Law Act 1975 (Cth) (‘the Act’) for a Court to make an order of nullity of marriage it must be satisfied that the marriage is void. There is no definition of what constitutes a void marriage in the Act.[4] However, section 23B(1) of the Marriage Act 1961 (Cth) (‘the Marriage Act’) sets out the grounds upon which a marriage is void and provides:-
[4]Zau & Ruk [2014] FamCA 709.
(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 [as defined in the Marriage Act];
(c)by reason of section 48 the marriage is not a valid marriage [the marriage is not a valid marriage under the law of the place where the marriage ceremony took place because of the failure to comply with the law of that place about the form of the marriage ceremony];
(d)the consent to the marriage 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)the 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.
The validity of overseas marriage’s
Foreign marriages, such as in this case, may be recognised in Australia and are dealt with in Part VA of the Marriage Act.
In Australia an overseas marriage will be recognised as valid if it was a valid marriage under the local law at the time it was solemnised (see ss 88C(1)(a) and 88D(1) of the Marriage Act. Section 88D(1) of the Marriage Act defines local law as:-
the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnised.
Section 88G(1) of the Marriage Act sets out the evidence required to establish the validity of the marriage and says:-
1) A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by:
(a)in the case of a marriage alleged to have been solemnised in a foreign country--an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or
(b)in the case of a marriage alleged to have been solemnised under the law of a foreign country--an authority of that country;
is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.
Section 88G(3) of the Marriage Act defined the term “competent authority” as being:-
(a)in relation to a foreign country:
(i)any authority that is prescribed in relation to that country by regulations made for the purposes of this paragraph; or
(ii)any other authority that is competent, under the law in force in that country, to issue the original or a certified copy of a certificate, entry or record of a marriage solemnised in, or under the law of, that country; and
(b)in relation to a part of a foreign country:
(i)any authority that is prescribed in relation to that part of that country by regulations made for the purposes of this paragraph; or
(ii)any other authority that is competent, under the law in force in that part of that country, to issue the original or a certified copy of a certificate, entry or record of a marriage solemnised in that part of that country.
Discussion.
I accept the translated Marriage Registration Certificate which forms Attachment 1 of the husband’s affidavit filed 14 October 2020 as evidence of the occurrence of marriage between the husband and the husband’s first wife in Country F in 2014. I also have available to me as evidence the Divorce Order made in the Federal Circuit Court of Australia on 13 December 2019 which forms Attachment 11 of the husbands affidavit filed 14 October as evidence of the divorce between the husband and the husband’s first wife.
Accordingly, it is clear that in 2018 when the husband married the wife, the husband was lawfully married to another person, his first wife.
It was initially unclear to me whether polygamy is or was lawful in Country B at 26 February 2018.
On 7 November 2020 Mr G, who is an accredited Legal Practitioner in Country B, swore an affidavit deposing that he is fully acquainted and competent with the laws of Country B relating to marriage. In that affidavit he sets out that pursuant to s 1542 of the Country B Civil and Commercial Code a marriage cannot take place if the man or woman is already the spouse of another person. Further, Mr G deposes that pursuant to s 1495 of the Country B Civil and Commercial Code a marriage which occurs contrary to that section shall be void. Annexed to the deponent’s affidavit were copies of the relevant sections of the Country B Civil and Commercial Code.
I accept that polygamous marriage was not permitted in Country B in 2018 at the time the husband and the wife married. Accordingly, the husband’s second marriage was a bigamous marriage, the husband having been married to his first wife and that marriage not having been dissolved.
I am satisfied that;
a)At the time of the filing of this nullity application the husband and the wife were and are each ordinarily resident in Australia and were both present in Australia at the relevant times. Consequently, this Court has jurisdiction to hear the application for nullity.
b)That this Court has power to declare the husband’s second marriage is void and consequently a nullity.
I am further satisfied that;
a)as at the date of the husband’s second marriage in Country B the husband remained lawfully married to his first wife.
b)bigamous marriage was unlawful in Country B as at the date of the husband’s second marriage,
c)the applicant entered into a bigamous marriage on 26 February 2018 and consequently that second marriage to the wife is void.
I am satisfied that a declaration should be made that the marriage between the husband and the wife is void and is a nullity. I so order.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 January 2021.
Associate:
Date: 11 January 2021
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