Mr As v Mrs As

[1999] FamCA 1131

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA
AT PARRAMATTA

No. 3375 of 1999

BETWEEN:

MR AS

Applicant Husband

- and -

MRS AS

Respondent Wife

JUDGMENT OF THE COURT
(Ex tempore)

CORAM:  Judicial Registrar Halligan

DATES OF HEARING:                 17 August 1999

APPEARANCES:  Mr Simon Diab, John H Maait and Co, Solicitors, DX 8294 Parramatta

Ms AS

DATE OF JUDGMENT:                19 August 1999

In these proceedings, Mr AS (the applicant) sought a decree of nullity of his marriage to Ms AS (the respondent).  The respondent attended court unrepresented, but swore an affidavit, which was filed in the applicant’s case.  She supported the applicant’s application.

The basis of the applicant’s case was that, while a certificate of marriage had been signed by the parties and an authorised celebrant and the “marriage” had been duly registered, no ceremony of marriage had taken place.  For this reason, I directed notice of the proceedings be given to the Commonwealth Attorney General.  The Attorney General did not take part in the proceedings.  Having heard the evidence on 17 August 1999, I was satisfied the ground for nullity had been established, but I remained concerned about what that evidence disclosed.  For that reason, to save the parties further delay and cost, I pronounced the decree of nullity immediately and indicated I would provide written reasons.  I now provide those reasons.

The applicant was born in 1976, and is now aged 22 years.  The Respondent was born in 1980, and is now aged 18 years.  The parties first met in Lebanon in 1993, after the respondent had travelled there from Australia.  The respondent stayed in Lebanon from 1993 to 1995, then returned to Australia.  When she returned to Australia, the parties agreed to keep in touch, which they subsequently did by phone and letter.

In 1997, while the applicant’s mother was in Australia, a marriage proposal was arranged between the applicant’s mother and the respondent’s parents.

In 1998 the applicant was granted what he referred to as a “fiance visa” to come to Australia. He arrived in Australia in late 1998. The applicant stayed with his brother. He has remained in Australia ever since. In fact, he has since obtained Australian citizenship. Jurisdiction under section 39 of the Family Law Act 1975 (Cth) was based on the applicant’s Australian citizenship, proven by the tender in evidence of his Australian passport.

Almost immediately the applicant arrived in Australia, his brother and the respondent’s parents started organising the Islamic ceremony of “kateb el kitab”, referred to as “signing the deed”.  The applicant and the respondent both said they understood this ceremony to be a formal engagement.  Prior to the kateb el kitab, the parties agreed to get married at the beginning of September.

In February, 1999, the parties went through the ceremony of kateb el kitab at the Suburb C Mosque in NSW. During the ceremony they both signed a certificate of marriage under the Marriage Act 1961 (Cth). The respondent said she was told by her parents that the way the marriage is entered into in their custom is that they sign all the paper work at the kateb el kitab, but actually get married at a later stage. The applicant, whose affidavits bear a certificate of a translator indicating he cannot read English, said a Sheik B, who performed the ceremony, advised him that the practice in this country is that at the time of the kateb el kitab it is customary to sign the marriage certificate. Nonetheless, the applicant still understood that the ceremony was not a marriage, but a formal engagement or betrothal.

The marriage was registered under the Births, Deaths and Marriages Registration Act 1995 (NSW) 2 days later.
Other than the evidence of signing the marriage certificate and about what Sheik B told the applicant, there is no evidence as to what the participants in the ceremony in February 1999 said or did.  The celebrant was overseas at all times relevant to the proceedings, and was thus not available to be called as a witness.

The applicant said that he had never met the celebrant before the ceremony.  In fact, both parties said that they had not spoken to anyone from the Suburb C Mosque prior to the ceremony, all the arrangements being made by other family members.

Sheik D of Suburb C swore an affidavit in the applicant’s case.  Sheik D said that his duties as a Sheik include explaining the rights and responsibilities of marriages under Islamic Law.  He said that under Islamic Law, the keteb el kitab – which he also referred to as “signing the deed” - has similar meaning to an engagement in western society.  After signing the deed, the bridegroom is then responsible for preparing a matrimonial home.  A period of time after the kateb el kitab ceremony, the bride and groom have a ceremony called el gamaa, which the Sheik referred to as the marriage, after which they move to their matrimonial home.  Sexual intercourse is not permitted before the marriage, unless the couple make a public declaration of the fact after the kateb el kitab.  In the period “between the engagement and the marriage”, the groom is permitted to visit the bride’s residence and see her, and the couple are permitted to court each other outside the bride’s place of residence, but only in public places and only with the bride’s parents’ permission.  The couple may not be together in the same room without another person present.  It is common for the groom to refer to the bride as his “fiancee” in the period between signing the deed and marriage.

Sheik D is put forward as an expert on Islamic law.  I accept he is qualified to give expert evidence on Islamic law, given his training, experience, and the position he holds.  However, despite my request that it do so, his evidence does not touch in any way on the evidence of both the parties that they were told that it is usual practice under the Islamic tradition in Australia for the marriage certificate to be signed at the kateb el kitab, even though that is not a marriage ceremony.  Nor does it provide any hint as to how or why, if the kateb el kitab is not a marriage ceremony, these parties and Sheik D signed a certificate of marriage at the kateb el kitab.

The parties’ evidence is that after the kateb el kitab, the applicant visited the respondent at her parents’ home a few times and they went out to public places twice.  There was always another person present.  A few weeks after the kateb el kitab, the respondent told the applicant she no longer wanted to marry him, the applicant agreed, and their courting ceased.

The applicant contends that as neither party believed or understood the ceremony in which they participated in was a marriage ceremony, the marriage is not a valid marriage.

Section 23B of the Marriage Act provides that a marriage solemnized in Australia is void, inter alia, if the consent of either of the parties is not a real consent because that party is mistaken as to the nature of the ceremony performed.

It is the uncontradicted evidence of both of the parties that they believed the ceremony conducted in 1999 was an engagement, not a marriage, and that the marriage would not occur until some 7 months later.  They have not since the date of the ceremony acted as husband and wife, nor have they held themselves out as husband and wife.  The evidence of Sheik D is consistent with the parties’ understanding of the nature of the kateb el kitab.

As there is no contradiction of the parties’ evidence, I must accept their evidence unless it is so internally inconsistent, or so inherently unbelievable or improbable, that the court could not accept it.  There is no inconsistency in the parties’ evidence.  The parties both provide plausible and consistent explanations as to what they were told about the ceremony, and why they signed a marriage certificate at the ceremony.  Their evidence thus is not inherently unbelievable or improbable.  I therefore accept their evidence.

On that evidence, I must be satisfied that this couple went through a ceremony which, to their knowledge, was not, and was not intended to be, a marriage ceremony, and that at the end of the ceremony the parties and a marriage celebrant signed a certificate of marriage. Neither party intended to enter into a marriage with the other in the ceremony performed in 1999. It follows that neither of the parties gave their consent to this purported marriage, and it is void. Although not a ground relied on by the applicant, it would also seem that the absence of a ceremony of marriage satisfying section 45 of the Marriage Act rendered the marriage void (see Najjarin & Houlayce, (1991) 14 Fam LR 889; (1991) FLC 92-246).

I am however concerned at certain issues raised by this case. Is it usual Islamic custom in Australia that a certificate of marriage under the Marriage Act is signed at the kateb el kitab, even though that is not a form and ceremony recognised as sufficient for the solemnization of a marriage under Islamic law, and therefore is not a marriage ceremony recognised under the Marriage Act? The issue of a certificate of marriage without a marriage being solemnized has arisen previously (see Najjarin & Houlayce, above, and see also Osman & Mourrali, (1989) 13 Fam LR 444; (1990) FLC 92-111, in which there was no expert evidence as to the ceremony of “kitab”, and which might be contrasted with the expert evidence of Sheik D referred to above).

Section 50 of the Marriage Act requires an authorised celebrant who solemnizes a marriage to prepare a marriage certificate in the prescribed form and have it signed as required by the section. However, while the Marriage Act makes it an offence for a marriage celebrant not to comply with various provisions of the Act, it is not an offence for a marriage celebrant to issue of certificate of marriage under the Act where no ceremony of marriage has taken place. Nor does the Act otherwise say a celebrant shall not complete and sign a certificate of marriage unless a ceremony of marriage in accordance with the Act has been conducted in his or her presence. Bearing in mind the possible illicit uses to which a certificate of marriage may be put, this omission seems to me egregious. (Lest this comment be misconstrued by the parties, I emphasis that there is no evidence before me to suggest either of the parties or Sheik B signed the certificate of marriage in this case for any illicit purpose.)

Since these matters in my view raise serious issues concerning the administration of the Marriage Act and perhaps broader issues in relation to the administration of justice, and consistent with my direction that he be given notice of these proceedings prior to the hearing, I have directed that a copy of these reasons be provided to the Commonwealth Attorney General.

I certify this to be a true
Copy of the reasons for judgment herein of
JUDICIAL REGISTRAR HALLIGAN

Associate
Date: