Neville & Ashjaim

[2007] FamCA 1368

FAMILY COURT OF AUSTRALIA

NEVILLE & ASHJAIM [2007] FamCA 1368

NULLITY – Application dismissed.

DIVORCE – Divorce order

APPLICANT: MS NEVILLE

RESPONDENT: MR ASHJAIM

FILE NUMBER: MLC 209 of 2007

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 23 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Libbis

SOLICITOR FOR THE APPLICANT: CE Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

In the matter of Neville, 209 of 2007:

It is declared:

1. That the marriage celebrated between the husband and wife in Armenia on […] 2001 is an invalid marriage and not recognised in accordance with the law of the Commonwealth of Australia.

It is ordered as follows:

1. That all applications on forms 1 and 2 be now hereby dismissed and removed from the list of cases awaiting hearing.

2. I accordingly grant a decree nisi of dissolution of marriage.

3. I accordingly grant a decree absolute, to become absolute at the expiration of one month from this date.

4. Certify.

5. The reasons for judgment will be transcribed and forwarded to you in the usual way.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mushin delivered this day will for all publication and reporting purposes be referred to as Neville & Ashjaim.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 209  of 2007

MS NEVILLE

Applicant

And

MR ASHJAIM

Respondent

REASONS FOR JUDGMENT

1. The essential issue in this matter is the status of the second marriage of the parties.  They married in England and then later went through a ceremony of marriage in Armenia.  It is common ground that their relationship has broken down irretrievably.  The wife seeks remedies which will give formal effect to that breakdown. 

2. The wife was born in Australia in 1980 and the husband was born in Armenia in 1976.  The parties went through a ceremony of marriage in England on … May 2001.  There is nothing to suggest that that marriage was not valid.  On … August 2001 the parties went through a further ceremony of marriage in Armenia.  It is common ground that the husband used two different names, being one for each of those marriages, but nothing turns on that point for present purposes. In particular it is not alleged that there was any fraud involved in that fact.

3. In 2002 the husband was granted a residency visa by the Commonwealth of Australia and the parties arrived in Australia in May of that year.  They continued living in Australia thereafter.  The parties separated on 22 April 2005 and have lived separately and apart since that time.  I am satisfied that the marriage has broken down irretrievably.  There is no child of their relationship.

4. The wife makes application for a dissolution of the marriage celebrated in England and also seeks a decree of nullity in respect of the Armenian marriage. As first submitted, the Armenian marriage was said to be invalid and void by virtue of section 23(1)(a) of the Marriage Act 1961 because it was bigamous. However, that provision relates only to circumstances in which, if at the time of the first marriage, either of the parties was lawfully married "to some other person". That is not the case here. The Armenian marriage was between the same parties as the parties in the earlier marriage in England. Accordingly, the application for decree of nullity must be dismissed.

5. However, the parties still have the problem of the Armenian marriage being extant.  In my view, the fact that it is not a void marriage does not of itself make it a valid marriage. It can be an invalid marriage and, in my view, it is that.  It is an invalid marriage because at the time of its celebration the parties were parties to a valid marriage and essentially the parties cannot, pursuant to the law of the Commonwealth of Australia, be in two valid marriages pursuant to that law. 

6. Paragraph (b) of the definition of "matrimonial cause" in the Family Law Act 1975 confers power on the court in circumstances in which proceedings are brought "for a declaration as to the validity of a marriage".  That includes the power to declare that a marriage is invalid for the purpose of the law of the Commonwealth of Australia.  In my view, by virtue of it being a second marriage, it is not to be recognised pursuant to that law and is therefore to be declared invalid. 

7. Finally, the marriage celebrated in England is a valid marriage, and I will shortly find all the necessary requirements to enable a decree nisi of dissolution of that marriage to be pronounced, such decree to become absolute.  I will order accordingly.

8. On the application of the wife for divorce filed on 5 January 2007 I find that the parties lawfully married in England on … May 2001.  I find that at the date of the application for dissolution of marriage the applicant was domiciled in Australia. 

9. I find that the parties separated on 23 April 2005, have lived separately apart since that time and the marriage has broken down irretrievably. I accordingly grant a decree nisi of dissolution of marriage. I find that there is no child of the marriage to whom the provisions of section 55A of the Family Law Act 1975 applies and I accordingly grant a decree absolute to come into effect at the expiration of one month from this date.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  23/11/2007