Nelson and Nelson
[2016] FamCA 516
•23 June 2016
FAMILY COURT OF AUSTRALIA
| NELSON & NELSON | [2016] FamCA 516 |
| FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the parties were validly married in the UK – Where the parties underwent a second marriage ceremony in Australia – Consideration is given to circumstances in which a marriage is found it be void – where it is found that the Australian marriage is void – Declaration of nullity made. |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23, 23B, 88C, 88D, 88G, 113. |
| Zua v Huang [2015] FamCA 873. |
| APPLICANT: | Ms Nelson |
| RESPONDENT: | Mr Nelson |
| FILE NUMBER: | PAC | 2948 | of | 2014 |
| DATE DELIVERED: | 23 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 11 April 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Arbabzada |
| RESPONDENT – LITIGANT IN PERSON: |
Orders
The marriage between the applicant and the respondent conducted at Suburb B, New South Wales on … 1997 be declared void and a nullity.
All outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nelson & Nelson 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 PARRAMATTA |
FILE NUMBER: PAC 2498 of 2014
| Ms Nelson |
Applicant
And
| Mr Nelson |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
This matter concerns an application for a decree of nullity of marriage as to the marriage between Ms Nelson (“the wife”) and Mr Nelson (“the husband”) solemnised in 1997.
The wife and husband were married in 1995 in the UK (“the UK marriage”). The parties married to facilitate the wife remaining in the UK with the husband and the ceremony was not attended by the parties’ families.
In 1996, the parties relocated to Australia.
The parties underwent a second marriage ceremony in 1997 in Suburb B, New South Wales (“the Australian marriage”). The wife describes the wedding as “very traditional with over 100 guests”. It was submitted on behalf of the wife that the wife and husband underwent a second marriage ceremony because the parties wanted their families and friends to attend.
The parties separated in February 2014.
On 24 September 2015, a divorce order was granted in relation to the UK 1995 marriage in the Federal Circuit Court of Australia, effective on 25 October 2015.
On 13 January 2016, the wife filed an Initiating Application seeking “a declaration that the marriage made in 1997 is void under section 23 of the Marriage Act 1961” and that the marriage, being void, “is annulled”.
On 1 March 2016, the husband filed a Response to Initiating Application seeking identical orders.
The application was listed before me on 11 April 2016. On that same date, the wife filed an Application in a Case seeking a declaration that the “marriage made … 1997 is void under section 51 of the Family Law Act 1975 (Cth)” and that the marriage being void, “is annulled”. In the course of the hearing, it became clearer that the marriage was not void “under section 51” but that regard must be had to the Marriage Act 1961 (Cth) (“Marriage Act”).
The Law
It is understood that at the hearing the wife no longer relied on s 23 of the Marriage Act as sought in her Initiating Application. That section applies to marriages that took place between 1977 and 1985.
Under s 51 of the Family Law Act 1975 (Cth) an application for “a decree of nullity of marriage shall be based on the ground that the marriage is void”.
In Zua v Huang[1], Berman J considered an application in similar circumstances where the parties had first married in China and remarried in Australia. In Zua v Huang (supra), Berman J undertook a consideration of the circumstances in which a marriage is void:
[1] [2015] FamCA 873.
15. Under s 51 of the Act, an application for a decree of nullity of marriage must be based on the grounds that the marriage is void. A void marriage is of no effect in law; it is not a marriage at all, whether or not a decree declaring it void has been pronounced. The decree is simply a declaration which confirms the fact that there was never a valid marriage. The grounds for a decree of nullity of marriage are set out and found in s 23, and 23B of the Marriage Act. The grounds under s 23B are as follows:
1) either of the parties is, at the time of marriage, lawfully married to some other person;
2) the parties are within a prohibited relationship, as defined in the Act;
3) the marriage is not a valid marriage under the law of the place where the marriage ceremony takes place because of the failure to comply with the law of that place about the form of the marriage;
4) the consent to the marriage of either of the parties is not a real consent because it was obtained by duress, fraud, there was mistaken identity, or a party to the marriage was mentally incapable of understanding the nature and effect of the marriage; or
5) either of the parties were not of marriageable age.
16. Section 23B provides that a marriage is void, where one of these grounds exists, and quoting from the section, the words and not otherwise are included. It is these words that give rise to some difficulties where the relationship lacks one of the essential characteristics of marriage not listed in these grounds. An example, of course, is the very factual circumstance that presents itself in this matter. This is a case where the parties have gone through a second marriage ceremony to a person, namely each other, in circumstances where they are already married.
17. It would seem sensible that the words, and not otherwise should be interpreted broadly, and not read literally. Commonsense would suggest that the second marriage, in circumstances where the parties were already validly married, in this case, in China, should be considered void. Section 113 of the Marriage Act makes provision for a second marriage ceremony, but only in two circumstances, that is, to enable a subsequent religious ceremony of marriage to take place, as provided for in s 113(5), or to resolve doubt concerning the validity of proof of a prior marriage, s 113(2).
18. Section 113(1)(a) otherwise prohibits parties going through a second marriage ceremony with each other. It is clear from the provisions of s 113(2), that the effect of a second marriage ceremony, which is celebrated to resolve doubt concerning the validity of a prior ceremony, is to confer validity upon the parties’ matrimonial union from at least the time of the second ceremony. That, of course, is not the circumstances in this case. It is not suggested that the parties had any doubt or misgiving that their marriage in China was uncertain, invalid or may need to have been the subject of reinforcement. For reasons that are not absolutely clear, the parties simply determined that they would marry in Australia, and not advise the relevant authorities of their prior marital status.
19. The general prohibition on second marriage ceremonies in s 113(1)(a) does pose a problem. The relevant part of this section states that:
(1) Except in accordance with this section:
(a) persons who are already legally married to each other shall not go through a form of ceremony of marriage with each other.
The difficulty, possibly the hiatus in the legislation, is that the Marriage Act says nothing about the status of the second marriage ceremony in contravention of the provision. Again, I think commonsense and logic must be brought to bear, and I consider that any such marriage ceremony must be devoid of any legal effect, and therefore a nullity, and the marriage itself, in this case the Australian marriage, must therefore be void.
20. Section 23B(1) however, makes no provision for the situation just enunciated. Section 23B(1)(a) declares a marriage to be void where:
… either of the parties is, or at the time of the marriage, lawfully married to some other person…
but it is silent about the effect of a marriage where both of the parties are already lawfully married to each other. Again, I consider logically, such a marriage must also be void, notwithstanding that it is not referred to in s 23B(1), and that notwithstanding the apparently exclusive nature of the words, and to otherwise at the conclusion of the subsection.
21. In Kapadia & Kapadia (1991) FLC 92-245the parties were legally married on two occasions; the first in Fiji, the second in Australia. The husband sought a decree of dissolution of both of those marriages. At page 78,668, Kay J said as follows:
Logic must surely prevail. A second ceremony of marriage involving parties who are already lawfully married must be a nullity, despite the fact that the grounds of nullity in section 23B(1) purport to be exclusive. If these grounds were really exclusive, marriage between persons of the same sex would be valid, for there is no ground of nullity which covers this situation either. The possibility of a valid homosexual marriage under current law is, however, an absurdity which only confirms the opinion of the ground of nullity in section 23B(1) are not in truth all embracing.
22. For those reasons then, I consider that the marriage solemnised by the parties on 11 February 2014 should be declared void, and therefore a nullity.
I am satisfied that the parties’ UK marriage entered into in 1995 was valid. An overseas marriage will be recognised in Australia as valid if “under the local law, the marriage was, at the time when it was solemnised, recognised as valid”[2]. Section 88G(1) of the Marriage Act provides that a marriage certificate issued by a competent authority in a foreign country is prima facie evidence of the occurrence of the marriage and of the validity of the marriage. The wife annexes to her affidavit a copy of the marriage certificate for the “Marriage solemnized at the Register Office” in City C, UK.
[2] Marriage Act 1961 (Cth) ss 88C(1), 88D(1).
Section 113 of the Marriage Act prohibits persons who are already legally married to each other from going through a ceremony of marriage with each other. The exceptions provided for in this section have no application here. There is no suggestion that there was any doubt as to the legality of the UK marriage or that the Australian marriage ceremony was a “religious ceremony of marriage”. While the Marriage Act says nothing about the status of the Australian marriage in contravention of s 113, as a matter of logic a marriage conducted between two persons already married to each other is void, notwithstanding that it is not referred to in s 23B(1). I am satisfied that the marriage is void.
A declaration will be made that the marriage in 1997 between the wife and husband is void and a nullity.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 June 2016.
Legal Associate:
Date: 23 June 2016