Molina & Sanchez

[2021] FamCA 84

FAMILY COURT OF AUSTRALIA

Molina & Sanchez [2021] FamCA 84  

File number(s):

PAC 5367 of 2020

Judgment of:

HANNAM J

Date of judgment:

26 February 2021

Catchwords:

FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the applicant wife was still married to another party at the time of the subject marriage – Declaration of nullity made.

FAMILY LAW – PRACTICE AND PROCEDURE – Whether parties should be referred to the Commonwealth Attorney-General following a declaration of nullity on the grounds of bigamy – Where it is not appropriate to make the referral.

Legislation:

Family Law Act 1975 (Cth) ss 51, 113

Marriage Act 1961 (Cth) ss 23B, 94

Cases cited:

Hiu & Ling [2010] FamCA 743

Kirvan & Tomaras [2018] FamCA 171

Number of paragraphs:

28

Date of last submissions:

7 January 2021

Date of hearing: 

By way of written submissions

Place:

Parramatta

Solicitor for the Applicant:

Family Lawyers and Mediators Australia

Solicitor for the Respondent:

The Respondent was self-represented

ORDERS

PAC 5367 of 2020

BETWEEN:

MS MOLINA

Applicant

AND:

MS SANCHEZ
Respondent

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	26 FEBRUARY 2021

THE COURT ORDERS THAT:

1.By virtue of sections 51 and 113 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth) the marriage of Ms Molina and Ms Sanchez in Sydney on … July 2019 be declared null and void.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Molina & Sanchez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION & BACKGROUND

1. This matter concerns an application for a decree of nullity of the marriage between the parties (“the applicant” and “the respondent”) solemnised in July 2019.

2. Both parties were born in a south-east Asian country and moved to live in Australia at some unknown stage.

3. Prior to the parties’ relationship, the applicant had married twice before. Her first marriage in 1994 was to a Mr A whom she divorced in 2001, and she married on a second occasion in 2008 to a man she had met in 2003 from her home country (“the second husband”).

4. The circumstances surrounding the applicant wife’s marriage to her second husband ground the current application.

5. In around 2005, when the applicant was spending time in her home country she visited her second husband who was at that stage a friend. According to the applicant’s affidavit, during this visit the second husband proposed marriage to her and she agreed.

6. At the time the applicant and the second husband agreed to marry, a family member of the second husband was organising documents relating to his Australian visa application. The wife deposes that she signed a document she understood to be the second husband’s visa application without properly reading it.

7. As I understand it, the applicant returned to Australia after the 2005 visit to her home country. The second husband eventually arrived in Australia in late 2007 and he and the applicant married in 2008.

8. The applicant wife deposes that not long after their wedding ceremony the second husband returned to his home country without explanation.

9. At the time of marriage, the applicant wife claims she was of the belief that the second husband had no children. She later became aware that the visa application which she had signed was not an application solely for the husband, but also for his three children of a previous marriage.

10. The applicant wife made a complaint to the Department of Immigration and Citizenship (‘the Department”) and subsequent investigations by the Department revealed that the second husband had a wife and five children in his home country.

11. Following this discovery, the applicant withdrew her sponsorship of the second husband and was notified by the Department that his visa was cancelled prior to him obtaining permanent residence. Consequently, the second husband returned permanently to his home country.

12. It is the applicant wife’s case that she was of the mistaken belief that when the Department cancelled her second husband’s visa, her marriage to him was also declared invalid. As a result of this belief she did not apply for divorce.

13. In June 2018 the applicant met the respondent and shortly thereafter the two began living together. In July 2019 they were married in Sydney.

14. In March 2020, upon seeking advice from a migration agent, the applicant learnt that she was still validly married to her second husband. She then filed for a divorce from him which came into effect in 2020.

15. The applicant seeks a declaration that her marriage to the respondent is void on the ground that she was lawfully married to another person at the time their marriage was solemnised. Although the respondent did not formally respond to the applicant’s application, in her affidavit filed 25 November 2020 she consents to it and further deposes that both she and the applicant intend to remarry validly following a decree of nullity being made.

    THE LAW

16. Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that an application for a decree of nullity of marriage “shall be based on the ground that the marriage is void”.

17. The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”), which provides, relevantly, as follows:

    (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;

    (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.

18. It is clear that at the time the applicant wife participated in the marriage ceremony with the respondent wife in July 2019 she was lawfully married to another person. She had been validly married as evidenced by her Marriage Certificate with the second husband annexed to her affidavit, and was at that stage not divorced. Her divorce to her second husband only took effect in 2020, just over a year from the date of her marriage to the respondent.

19. Section 113 of the Family Law Act states that the Court may make such declaration as is justified in matrimonial proceedings. I am of the view that in circumstances where the applicant was already married to her second husband at the time of the marriage under consideration, and there being no suggestion that the respondent was aware of this circumstance at the time, a declaration of nullity is justified.

20. Accordingly, a declaration will be made that the marriage between the applicant and respondent conducted in Sydney in July 2019 is null and void.

    Referral to relevant prosecuting authorities

21. The Marriage Act provides for the offence of bigamy in s 94 as follows:

    (1)A person who is married shall not go through a form or ceremony of marriage with any person.

    Penalty: Imprisonment for 5 years.

    (1A)For the purpose of an offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form of ceremony took place.

22. As it is central to the applicant’s case that she was validly married to her second husband at the time of her marriage to the respondent, a question also arises about whether the applicant should be referred to the police or prosecution authority for the purposes of an investigation in relation to that potential offence.

23. Such a matter was not addressed by the applicant in her application for nullity, but at a court event before me in December 2020, it was raised with the parties to afford natural justice to them. The applicant sought to address the matter in submissions and leave was granted to the parties to file any further evidence upon which they relied within 28 days.

24. The applicant filed an affidavit on 7 January 2021 in which she asks that no referral be made to the prosecution authorities in relation to her conduct. She asserts that she did not “intentionally marry [the respondent] knowing that I was still legally married to [the second husband]” and maintains that she was of the belief that when the Department cancelled the second husband’s visa, her marriage to him was also cancelled. She further submits that this was a “naive mistake” on her part.

25. The considerations and relevant authorities relating to whether to refer documents to relevant prosecuting authorities were summarised by Mushin J in Hiu & Ling[1] at [18] - [22], and more recently by Berman J in Kirvan & Tomaras[2] at [52] – [54]. The effect of these two decisions is that while the Court does not have a duty to refer papers to the appropriate authorities in every case, the question of whether it should exercise its discretion to do so is to be decided on the facts of the matter, and regard should also be had to the seriousness of the potential offence.

    [1] [2010] FamCA 743.

    [2] [2018] FamCA 171

26. In the present case, I accept that the applicant held a bona fide belief that she was no longer married to the second husband at the time she underwent a marriage ceremony with the respondent in July 2019. The parties’ Marriage Certificate annexed to the applicant’s affidavit filed 7 January 2021 specifies her conjugal status as “divorced” from which it can be inferred that the applicant held the belief (albeit false) that her marriage to the second husband was no longer intact.

27. The respondent also deposes that she understands that the applicant made a genuine mistake in regards to her marriage status when they were married, and there is no evidence to suggest that the parties were prepared to knowingly misrepresent the important consideration that at the time of the marriage ceremony the applicant wife remained married to the second husband. I have no reason not to accept the applicant’s evidence that the correct information about the status of her marriage to the second husband only came to her attention in March 2020, some months after her marriage to the respondent. Upon discovering this, the applicant immediately filed for a divorce from her second husband and filed for a decree of nullity with respect to her marriage to the respondent.

28. In these circumstances, and where the applicant’s marriage to the respondent took place almost 10 years after the second husband’s visa was cancelled (the time at which she deposes to having formed her belief that her marriage to him was also “cancelled”), it is, in my view, not appropriate to refer the matter to the relevant authority for the purposes of investigation or prosecution.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:     

Dated:       26 February 2021