NDIAYE & PATINE

[2014] FamCA 779

FAMILY COURT OF AUSTRALIA

NDIAYE & PATINE [2014] FamCA 779

FAMILY LAW – NULLITY – Where the applicant’s marriage is declared null and void – Where the wife was legally married at time of marriage to respondent – Where the respondent claims the applicant never told him that she was already married – Where the applicant claims she did not know she was still married – Section 23B(1) Marriage Act1961 (Cth).

Marriage Act 1961 (Cth) s 23B

Family Law Act 1975 (Cth) ss 39(4), 42(2)

APPLICANT: Ms Ndiaye

RESPONDENT: Mr Patine

FILE NUMBER: SYC 2460 of 2014

DATE DELIVERED: 4 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 4 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Charlton Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: The Respondent in Person by Telephone

Orders

1. That a decree of nullity is pronounced in the marriage between Ms Ndiaye and Mr Patine entered into on … June 2012 in Country N in Africa.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2460 of 2014

Ms Ndiaye

Applicant

And

Mr Patine

Respondent

REASONS FOR JUDGMENT

1. By an application in a case dated 28 April 2014 the applicant seeks an order for annulment. 

2. The application and affidavits were personally served on the respondent on 2 May 2014.  He has been contacted this morning by the court and has made submissions to the court opposing the application.  I have taken into account what he has said. Although the respondent initially said he was opposing the application and sought an adjournment for that purpose he then said that he was not able to come to court. Thus, he made his submissions to me this morning. His principal objection was that the applicant had not told him that she was already married.

3. The evidence discloses that the applicant married Mr M on … July 2003 at a County Probate Court in Ohio.  Her evidence is that that relationship ended in about 2008 and she returned to Australia. 

4. Prior to leaving the United States the applicant said that Mr M handed her a document, which she signed, and he told her that that document would legally cancel the marriage to him.  She signed the document and returned to Australia in the belief that a divorce was being obtained by Mr M.

5. The applicant has since recently reconnected with Mr M and proposes to recommence the relationship.  She now understands from him that she was not divorced. 

6. In 2012 the applicant travelled to Country N in Africa for two weeks. Whilst she was there she married the respondent on … June 2012.  He has returned to Australia with the applicant pursuant to an offshore partner visa. 

7. The parties separated in March 2014. 

8. It is clear from the evidence that, at the time of the marriage to the respondent on … June 2012, the applicant was already married. 

9. The provisions of the Marriage Act1961 (Cth) deal with marriage. Section 23B(1) sets out the grounds upon which a marriage is void. The first ground is that either of the parties, is at the time of the marriage, lawfully married to some other person.

10. I have jurisdiction to deal with the application as the applicant is both a citizen of, and domiciled in, Australia (s 39(4) of the Family Law Act 1975 (Cth)).

11. I am satisfied, that at the time of the marriage to the respondent, the applicant was lawfully married.  Neither party adduced evidence to suggest that there was any law in Country N that permitted such a marriage and the presumption is, in its absence, the law there is the same as in Australia (s 42(2) Family Law Act).

12. I therefore pronounce a decree of nullity and make the order set out at the commencement of my reasons for Judgment. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 4 August 2014.

Associate: 

Date:  17 September 2014