NIGAM & MAJUMBDAR

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.