NOURI & YAVARI

[2020] FamCA 324

FAMILY COURT OF AUSTRALIA

NOURI & YAVARI [2020] FamCA 324

FAMILY LAW – MARRIAGE – Validity of foreign marriage – Application for Divorce – Whether there is a valid marriage – Parties married in Iran in religious marriage ceremony – Iranian State does not recognise the religious faith – Whether marriage was recognised as valid according to Iranian law – the marriage was registered with local authorities – consideration of common law marriage – Valid marriage exists pursuant to s 88C(1) of the Marriage Act 1961 (Cth) – Orders

Family Law Act 1975 (Cth) s55A
Marriage Act 1961 (Cth) ss 88B, 88C(1)(a)

Hooshmand & Ghasmezadegan (2000) FLC 93-044
Savenis v Savenis and Szmeck (1950) SASR 309

APPLICANT: Ms Nouri

RESPONDENT: Mr Yavari

FILE NUMBER: ADC 5344 of 2019

DATE DELIVERED: 9 April 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ormerod

SOLICITOR FOR THE APPLICANT: Southern Community Justice Centre

COUNSEL FOR THE RESPONDENT: Litigant in person

Orders

1. Exhibit “1” in the proceedings is the Identity Certificate (Birth Certificate) of Ms Nouri.

2. That the requirement for a Marriage Certificate be dispensed with NOTING the Identity Certificate of the wife records the registration of the marriage between the parties was registered on … 1995 and bears the registration number …89.

3. That upon noting the declaration that the Court finds proper arrangements have been made for the infant child of the marriage, a divorce order is made in respect of the marriage between Ms Nouri and Mr Yavari solemnised on … 1995.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nouri & Yavari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5344 of 2019

Ms Nouri

Applicant

And

Mr Yavari

Respondent

REASONS FOR JUDGMENT

INTRODUCTION AND BACKGROUND 

1. By Application for Divorce filed 6 December 2019, Ms Nouri (“the wife”) seeks a dissolution of her marriage with Mr Yavari (“the husband”).

2. Both parties were born in Iran.  The wife was born on … 1968 and the husband was born on … 1965.

3. The wife entered Australia on 30 December 2010 and the husband on 1 March 2016.

4. The parties are both adherence to a particular religious faith. 

5. The parties underwent a marriage ceremony in accordance with the marriage laws of the religious faith on … 1995.  The wife’s initial position was that because the Iranian State does not recognise the religious faith, a marriage certificate did not exist.  The wife also believed that their marriage had not been formerly registered with any government authority in Iran.

6. The parties commenced living together in 1995.  There are two children of the marriage, the youngest is 16 years of age and resides with the wife.

7. The parties lived together in Iran until they each migrated to Australia.  Notwithstanding that they were separated for a period of about five years, the parties considered that their relationship remained intact.  Whilst they endured a physical separation, neither party considered that it represented an irretrievable breakdown of what they considered to be a marital relationship.

8. The parties separated in July 2017 and have not thereafter resumed any cohabitation nor do they consider that there is any prospect of their relationship being reconciled.

9. Both parties have satisfied the requirements of the religious faith and have obtained support and approval from the religious community for a 12 month period.  That period passed and the wife’s intention to separate from the husband did not change.

10. Annexure “A” to the wife’s affidavit filed 6 December 2019 is a document prepared on behalf of the religious community which corroborates the wife’s evidence that under the faith the parties are considered as husband and wife.  The following extract summarises the parties predicament:-

    They married in Iran according to [the religious faith] Marriage laws and they do not have a Civil marriage Certificate due (sic) the Iranian Islamic regime not recognising the [the religious faith] and persecuting the [religious community].  [The parties] lived together for 22 years and have been separated since 8^th August 2017, living at different addresses since.[1]

    [1] Affidavit of the wife filed 6 December 2019, Annexure “A”.

11. Annexure “C” is a further letter dated 12 October 2017 from the religious community confirming that the parties were to undergo counselling procedures during the year of patience and by reference to annexure “D” correspondence dated 26 August 2018 the year expired on 8 August 2018.  The religious community requires a copy of the decree absolute so that the Central Office can finalise the divorce.

12. The parties appeared on the application.  The wife was represented by a solicitor, the husband initially appeared with the assistance of a social worker and an interpreter.

13. Significant effort was made to explain to the husband the importance of the Application for Divorce and a summary of the issues that were likely to be relevant to determining firstly, whether there is a valid marriage as between the parties and then, whether the requirements have been satisfied such that the Court would grant a divorce order.

14. The focus of the application is to determine whether there is a valid marriage.  If so, then the Court will find that proper arrangements have been made for the care of the parties’ child and given there is no controversy as to the period of separation and the intentions of the parties, or at least the wife, that there has been an irretrievable breakdown of the marriage, an order dissolving their marriage will be made.

IS THERE A VALID MARRIAGE?

1. The Marriage Act 1961 (Cth) (“the Marriage Act”) provides the circumstances in which a court is able to recognise as valid a marriage celebrated outside of Australia.

2. Section 88C of the Marriage Act provides:-

   (1)This part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:-

   (a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or

   (b)…

3. Section 88B of the Marriage Act defines local law as:-

   In relation to a marriage solemnised in a foreign country, means the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnised.

4. Accordingly, if a marriage ceremony takes place in a foreign country then it would be recognised in Australia as a valid marriage if it was valid under the local laws of the foreign country.

5. The difficulty is that Iran does not recognise as valid a marriage solemnised in the particular religious faith.

6. The provisions of ss 88B(1) and 88C(1)(a) formalise the common law principle of lex loci celebrationis namely, that a ceremony celebrated according to the laws of a place at common law will be considered a valid marriage at common law.

7. It is apparent that a reference to common law is in reality a reference to an English common law marriage and perhaps even the more arcane consideration of a canon law marriage.

8. In Savenis v Savenis and Szmeck (1950) SASR 309 the trial judge was asked to consider the validity of a marriage celebrated in Germany in 1945 in accordance with the rights of the Roman Catholic Church, in circumstances where the German law at that time only recognised civil ceremonies as valid.

9. His Honour considered that if the parties had been British subjects then there would have been little difficulty in recognising the marriage as a common law marriage.  His Honour considered the applicability of common law principles as follows:-

   If the matter be res integra, in circumstances where a marriage cannot be lawfully solemnised in accordance with the laws of some territory owing to chaotic conditions brought about (inter alia) by warfare, and if the country in which the parties are, or were formerly, domiciled is itself overrun, the government being taken over by an alien power, then in such a case so far as our courts are concerned I think it would be proper to extend (if it be necessary) the area of legal recognition given to marriages that conform to our common law.[2]

   [2]Savenis v Savenis and Szmeck (1950) SASR 309 at 311.

10. In Hooshmand & Ghasmezadegan (2000) FLC 93-044 Penny J considered whether the status of a common law marriage should be afforded to parties whose marriage was celebrated in a Bahá’í ceremony in Iran in circumstances where it was invalid under Iranian law. Her Honour considered it a relevant factor that it was impossible for the parties to marry in compliance with Iranian law and therefore the marriage should be recognised as a valid common law marriage even though no episcopally ordained minister was present.

11. At first consideration, the decision of Hooshmand & Ghasmezadegan (supra) is entirely consistent with the predicament in which the parties find themselves.

12. Following some investigation, the Court became aware of a report about the situation in Iran.

13. Paragraph 8.1 of the report corroborates the wife’s contention that all organised activities of the religious faith have been prohibited since August 1983.

14. The report finds that the Iranian Government, up until 2000, did not recognise the religious faith documents as having any legal status and in particular in respect to a marriage certificate.

15. After 2000, the Iranian government introduced a scheme that makes it possible for adherents to the religious faith to register that they underwent a ceremony in their own personal identity papers.  The process is relatively straightforward and requires the married parties to attend a Notary Public and declare that they have undergone a religious marriage.  Whilst they will not be issued with a marriage certificate, they will receive a document which can then be registered.  They are not thereafter subject to criminal prosecution even though their marriage is not considered valid under Iranian Law.

16. The existence of a formal process that enables a marriage to be registered and therefore attain a level of formality may well have been a relevant consideration as to whether parties who did not undertake the final step of registration could then still claim that their marriage is recognised as a common law marriage.

17. The issue did not arise in Hooshmand & Ghasmezadegan (supra) which was decided prior to the introduction of the registration process.

18. The initial consideration is that if there is a step available to the parties that would have the consequence of registering their marriage with the Iranian authorities and it is not undertaken, the parties should not be able to claim a common law marriage.

19. The potential for registration was raised with the parties and the proceedings were further adjourned to enable inquiries to be made.  By affidavit filed 7 April 2020, the wife’s solicitor has annexed a translated copy of the wife’s Identity Certificate issued by the Islamic Republic of Iran/Ministry of the Interior State Organization for Civil Registration.  The document provides that the parties were married on the … 1995 and that their registration number is …89.

20. I consider that I am able to find that a valid marriage exists pursuant to s 88C(1) of the Marriage Act and in any event I am prepared to declare that the parties underwent a valid marriage ceremony at common law.

21. On being satisfied that a valid marriage exists, I am able to find that the marriage has broken down irretrievably and that pursuant to s 55A of the Family Law Act 1975 (Cth), proper arrangements have been made for the care, welfare and development of the infant child of the marriage.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 April 2020.

Associate: 

Date:  5 May 2020