NIGAM & MAJUMBDAR
[2015] FamCA 595
•24 July 2015
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 | of | 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 case law or the applicable statutory provisions. However, the applicant told the Court that the application was based solely on his evidence that the name used by the respondent in the marriage ceremony and, presumably, during their cohabitation, was not her legal name.
The only provision available to the applicant is s 23B(1)(d)(ii) of the Marriage Act.
The relevant provision is set out below:
MARRIAGE ACT 1961 - SECT 23B
Grounds on which marriages are void
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
The applicant thus applies for a declaration that the marriage celebrated in Country C is void because he was mistaken as to the identity of the respondent pursuant to s 23B(1)(d)(ii) of the Marriage Act.
The parties met in Country A in September or October 1997.
In mid-April 1997 the respondent travelled to Country C to visit on a tourist visa issued to her under the name Ms B, that being the name she used after her marriage to her first husband, Mr B and the name on her passport. The marriage to Mr B had been dissolved in 1992.
In January 1998 she visited again using a tourist visa issued in the name of “B”. She stayed with the applicant for two or three weeks.
In April 1998 the respondent again travelled to Country C on a tourist visa issued in the name of “B” for the purpose of, and with the intention of, marrying the applicant.
The parties applied for a Marriage Licence. The respondent in the application used the surname “Majumbdar” which is her maiden name.
The applicant contends that, because the respondent did not change her name in accordance with the provisions of the relevant legislation in Country C, the marriage solemnized using her maiden name is a nullity.
It is not disputed that the applicant intended to marry the woman he knew as “B” or that she is one and the same person as the woman using the name “Majumbdar”.
Both the applicant and the respondent signed the application for a Marriage Licence. The applicant must have been aware that the respondent used the name “Majumbdar” on the application.
The Marriage Certificate issued using the name “Majumbdar”.
The parties had known one another for some time and formed the mutual intention to marry.
It is not alleged that the applicant did not intend willingly to marry the woman who was present with him at the marriage ceremony in 1998.
The learned authors of “Australian Divorce Law and Practice” (Toose, Watson & Benjafield 1968 Edition at paragraph 107) dealing with a similar provision in s18(1)(d)(ii) of the Matrimonial Causes Act 1959-1966 say:
It is the fact that the consent is not a real consent because of the mistake of a party as to the identity of the other party which renders the marriage void - s18(1)(d)(ii).. Mistake as to the condition, fortune or character of the other party will not avoid a marriage.
In Dickey’s Family Law with Legislation at [10.590] Dickey comments:
By s 23B(1)(d)(ii) of the Marriage Act 1961, a marriage is void if the consent of either of the parties is not a real consent because one party is mistaken as to the identity of the other party. There is little judicial guidance on the scope of this provision. However, it does appear that a distinction must be drawn between a mistake as to the human identity of a person, and a mistake as to the name, status or other attribute of a party. The better view, based on the ordinary law of contract, seems to be that only the former type of mistake justifies a decree of nullity.
In Osman and Mourrali (1990) FLC 92-111; 13 Fam LR 444, this view was endorsed and at FLC 77,743; FamLR 448, Nygh J said this:
… the marriage is void because the purported consent was given to something other than a marriage, or to a marriage with someone other than the person physically standing at the altar.
In Zacharia and Paradisio [2008] FamCA 688, Burr J. said:
43. The mistake has to be about “who the other party really is” - it is not enough for a party to be mistaken about matters such as the other person’s financial position or character. “The mistake in question must go to the identity of the party, not merely their name.”
Burr J then summarised the authorities in relation to this issue by reference to the following decisions and, with respect, I adopt his Honour’s analysis:
45. In C v C [1942] NZLR 356, the husband told the wife he was a famous Australian featherweight boxer and quite well off. The husband was in fact a New Zealander and neither a boxer nor rich. The wife tried to have the marriage annulled, but failed. Callan J held that it was a “case of real consent induced by fraud, and not a case of no consent or absence of consent.” The woman had consented to marrying the man she in fact married.
46. There are few reported cases on mistaken identity as a ground to establish that a marriage is void and thereby justifying the grant of a decree of nullity. Below is a summary of some more recent cases on the issue:
47. T and H (2001) (unreported 1/6/07). One ground the husband relied on was mistake as to the identity of the wife, in that she lied about her date of birth, her education, her background, and that she was in effect “a different person”.
48. Chisholm J stated that “[T]he authorities make it quite clear that mistake as to identity should be construed in a fairly narrow way.” His Honour concluded that even if all the things the husband alleged about the wife were true, this would not constitute a mistake of identity within the meaning of s 23B(1)(d)(ii) of the Marriage Act.
49. In M and Y (2005) (unreported 10/2/05), the wife sought a decree of nullity on the ground of mistake as to identity of the husband. Halligan JR stated at [28]:
“Identity for these purposes does not refer to one’s incidental attributes such as condition, fortune, or quality, but rather to the person of the other party. For example, if a person intended to marry A but in fact went through a ceremony of marriage with B believing them to be A, consent would be vitiated. The authorities and current text books in fact suggest nullity on this ground is very rare...”
50. The substance of the wife’s complaint was that the husband had not given his correct name, that he goes by various names and did not give her a correct account of his past. Halligan JR held the wife clearly intended to marry the husband- there was real consent and this consent was not vitiated because she now was unsure of the husband’s real name and his antecedents.
51. In Aird and Hamilton-Reid [2007] FamCA 4, the wife sought a decree of nullity on the grounds of fraud and mistake as to identity. The wife was not aware of the husband’s real surname, or that he had been previously married and had two children.
52. Watt J could not conclude on the evidence before his Honour that at the time of the marriage the husband’s name was any different to that on the marriage certificate. The wife had not asserted that she was induced into the marriage because of the husband’s surname, or that any mistake relating to that surname caused her to consent to a marriage in circumstances which she would not otherwise have done so.
53. His Honour concluded the wife could not rely on mistake to establish a decree of nullity. With respect to fraud, his Honour accepted the wife was induced to marry by the misrepresentations made by the husband. However his Honour stated that “[F]rom earliest times the authorities have rejected misrepresentations that induce the giving of consent including age, social status and wealth. These are all objectively ascertainable facts.” (at [50]) The wife consented to marry the person who was physically present on the wedding day.
In these proceedings, the person whom the applicant married was the person whom he intended to marry. He was not mistaken as to her identity.
Accordingly, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 July 2015.
Associate:
Date: 24/7/2015
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