Naderi and Adib

[2019] FamCA 1055

FAMILY COURT OF AUSTRALIA

NADERI & ADIB [2019] FamCA 1055

FAMILY LAW – NULLITY – Where the parties were married in Egypt – Where the Applicant was still lawfully married to his first wife – Where the parties are in agreement that the marriage between them is not a valid marriage and ask the Court to make a declaration that their marriage is not to be recognised as a valid marriage in Australia – Where the declaration is made.

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

APPLICANT: Mr Naderi

RESPONDENT: Ms Adib

FILE NUMBER: BRC 1039 of 2018

DATE DELIVERED: 12 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: In Chambers

REPRESENTATION

THE APPLICANT: Self-Represented

SOLICITOR FOR THE RESPONDENT:

Ms Simpson

Simpson Family Lawyers

Orders

IT IS DECLARED

1. That the marriage that took place on … 2012 at D City, Egypt between the Applicant and the Respondent shall not be recognised in Australia as a valid marriage.

IT IS ORDERED

1. That except as otherwise provided, all applications are dismissed.

2. That the hearing listed for 29 January 2020 be vacated.

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 Naderi & Adib 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 BRISBANE

FILE NUMBER: BRC 1039 of 2018

Mr Naderi

Applicant

And

Ms Adib

Respondent

REASONS FOR JUDGMENT

1. The parties to these proceedings both ask this Court to make a declaration that their marriage that took place in 2012 at D City in the Arab Republic of Egypt shall not be recognised in Australia as a valid marriage.

2. They agree that they went through a marriage ceremony in Egypt B that day that was registered with the Egyptian Government as a lawful marriage in that country.

3. Though the wife did not know it at the time, the husband was still lawfully married to another woman.  He had married her according to law in New Zealand in 1995 and had not obtained a dissolution of that marriage before … 2012, though he later did obtain that dissolution in 2012. There is no dispute between the parties that the husband’s previous marriage in New Zealand was valid according to New Zealand law.

4. Section 88C of the Marriage Act 1961 (Cth) (“Marriage Act”) provides:

   (1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:

   (a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or

   (b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country:

   (i)under the law of that other foreign country, the marriage was, at the time when it was solemnised, recognised as valid; and

(ii)at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law.

(2)Where a marriage (not being a marriage referred to in subsection (1)) that was solemnised, whether before or after the commencement of this Part, in a foreign country:

(a)is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the local law; or

(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law—is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the law of that other foreign country;

this Part applies to and in relation to the marriage from and including that time.

1. Section 88D of that Act also provides:

   (1)Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.

   (2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:

   (a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid;

   (b)where one of the parties was, at the time of the marriage, domiciled in Australia—either of the parties was not of marriageable age within the meaning of Part II;

   (c)the parties are within a prohibited relationship within the meaning of section 23B; or

   (d)the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).

   (3)Where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognised as valid in accordance with subsection (1) at any time while either party is under the age of 16 years.

   (4)A marriage solemnised in a foreign country, being a marriage to which this Part applies, shall not be recognised as valid in accordance with subsection (1) at any time while the marriage is voidable:

   (a)except in a case to which paragraph (b) applies—under the local law; or

   (b)if the marriage was solemnised in a foreign country by or in the presence of a diplomatic or consular officer of another foreign country—under the law of that other foreign country.

   (5)      Notwithstanding any other provision of this Part, where:

   (a)a marriage (in this subsection referred to as the initial marriage) has, whether before or after the commencement of this Part, been solemnised in a foreign country;

   (b)at the time of the solemnisation of the initial marriage, that marriage was not recognised in Australia as valid;

   (c)after the solemnisation of the initial marriage, and whether before or after the commencement of this Part, either party to that marriage entered into another marriage (in this subsection referred to as the subsequent marriage); and

   (d)      at the time when the subsequent marriage was solemnised:

   (i)the subsequent marriage was recognised in Australia as valid; and

   (ii)the initial marriage was not recognised in Australia as valid;

   the initial marriage shall not be recognised at any time in Australia as valid.

2. Part VA of the Marriage Act applies. Pursuant to s 88D(1) the husband’s New Zealand marriage is recognised in Australia as a valid marriage. However, in respect to the marriage of the parties solemnised in Egypt on … 2012, s 88D(2)(a) applies. That marriage shall not be recognised as valid in Australia as the husband was, at the time of that marriage in Egypt, already a party to a marriage with another person that was recognised in Australia as valid (the 1995 New Zealand marriage).

3. Section 31(1)(b) of the Family Law Act 1975 (Cth) expressly confers power on this Court in respect of matters arising under the Marriage Act in respect of proceedings instituted under that Act.

4. I am not being asked to determine whether or not the marriage of the two parties solemnised in Egypt on … 2012 was valid according to Egyptian law but I am satisfied that it cannot be recognised in Australia as a marriage validly solemnised that day. Accordingly, I am prepared to make the declaration in the form requested by the parties.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 December 2019.

Associate: 

Date:  12 December 2019