NIGAM & MAJUMBDAR - [2015] FamCA 595

FAMILY COURT OF AUSTRALIA

NIGAM & MAJUMBDAR

[2015] FamCA 595

FAMILY LAW – NULLITY – SERVICE – Where the application was not served personally on the respondent – Where the respondent had returned an acknowledgement of service upon receiving the application by post – Where the requirement of personal service was dispensed with.

FAMILY LAW – NULLITY – MISTAKE AS TO IDENTITY – Application for declaration of nullity of marriage – Whether the applicant was mistaken as to the identity of respondent pursuant to s23(b)(1)(d)(ii) of the Marriage Act 1961 (Cth) – Where the parties had known each other for some time prior to the marriage – Where the applicant asserted that the name used by the respondent in the marriage ceremony was not her legal name – Where it was found that the applicant willingly entered into the marriage and was not mistaken as to the identity of the respondent – No grounds for nullity of marriage established – Application dismissed.

Marriage Act 1961 (Cth) s 23B
Family Law Rules 2004 (Cth)

Osman and Mourrali (1990) FLC 92-111; 13 Fam LR 444
Zacharia and Paradisio [2008] FamCA 688

APPLICANT:

Mr Nigam

RESPONDENT:

Ms Majumbdar

FILE NUMBER:

BRC

10353

2011

DATE DELIVERED:

24 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

20 July 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

No Appearance

Orders

IT IS ORDERED

That personal service of the application filed on 25 March 2015 be dispensed with.
That the application for a declaration that the marriage between Mr Nigam and Ms Majumbdar is null and void be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nigam & Majumbdar 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: BRC 10353 of 2011

Mr Nigam

Applicant

And

Ms Majumbdar

Respondent

REASONS FOR JUDGMENT

The applicant, Mr Nigam (“the applicant”) and the respondent, Ms Majumbdar (“the respondent”) underwent a ceremony of marriage in Country C in 1998.
The lived together after the ceremony until they separated on 14 February 2011.
The applicant now asks the Court to find that the marriage was a nullity.

SERVICE

The application was served on the respondent by post. She returned an acknowledgement of service.
Although the Family Law Rules 2004 (Cth) require that the application be personally served on the respondent, I am satisfied that she is aware of the application and, because of the findings I will make, I dispense with the requirement of personal service.

THE SUBSTANTIVE APPLICATION

The applicant seeks a declaration that the marriage is not a valid marriage. He does not specify upon which provision of the Marriage Act 1961 (Cth) (“the Marriage Act”) he relies. When asked to address the Court on the applicable law, the applicant told the Court that he had not conducted any research. He made no submissions as to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NIGAM & MAJUMBDAR

Details

AGLC: NIGAM & MAJUMBDAR [2015] FamCA 595
Case: [2015] FamCA 595
Decision Date: 24 July 2015

CaseChat Overview and Summary

In the matter of *Nigam & Majumbdar*, heard before Rees J, the applicant sought a declaration that his marriage to the respondent was null and void. The primary dispute concerned whether the applicant was mistaken as to the identity of the respondent at the time of the marriage, as contemplated by s 23(b)(1)(d)(ii) of the *Marriage Act 1961* (Cth). A secondary issue arose regarding the service of the application, which had not been effected personally on the respondent, although she had returned an acknowledgement of service after receiving it by post.

The court was required to determine two principal legal issues. Firstly, whether the requirement for personal service of the application should be dispensed with, given the respondent's acknowledgement of service by post. Secondly, and more crucially, the court had to ascertain whether the applicant had established that he was mistaken as to the identity of the respondent at the time of the marriage, a ground for nullity under the *Marriage Act*.

Rees J found that the requirement for personal service could be dispensed with, noting the respondent's acknowledgement. However, on the central issue of mistaken identity, the court reasoned that the applicant had not discharged the onus of proof. The evidence indicated that the parties had known each other for some time before their marriage, and while the applicant asserted the respondent used a name in the ceremony that was not her legal name, the court concluded that the applicant had willingly entered into the marriage and was not mistaken as to the identity of the person he married. Consequently, no grounds for nullity were established.

Accordingly, Rees J ordered that personal service of the application be dispensed with and dismissed the application for a declaration that the marriage between Mr Nigam and Ms Majumbdar was null and void.

Orders

Orders of the court

IT IS ORDERED

That personal service of the application filed on 25 March 2015 be dispensed with.

That the application for a declaration that the marriage between Mr Nigam and Ms Majumbdar is null and void be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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