NYGH and Kasey
[2010] FamCA 145
•2 March 2010
FAMILY COURT OF AUSTRALIA
| NYGH & KASEY | [2010] FamCA 145 |
| FAMILY LAW – MARRIAGE – Validity of marriage – Parties participated in Catholic wedding ceremony in Thailand – Marriage not registered – Application of the Marriage Act 1961 (Cth) and the common law principles of private international law – Application of the Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages – Whether the marriage not formally registered by the applicant because of a conscientious objection – Whether such conscientious objection constituted an exception to the rule that the formal validity of a marriage is governed by the law of the place of celebration (lex loci celebrationis) – Consideration of oft-quoted authority Milder v Milder [1959] VR 95 with respect to the words “against conscience” – HELD – Applicant held conscientious objection – Exception to presumption established – Marriage proved – Divorce order granted |
| Family Law Act 1975 (Cth) ss 48(2), 55(1), 55A(1), 113 Marriage Act 1961 (Cth) ss 88C(1), 88C(2), 88D(1), 88D(2), 88E(1), 88E(2) |
| Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages |
| Axon & Axon (1937) 59 CLR 395 In the marriage of Banh (1981) 6 Fam LR 643 Kochanski v Kochanska [1957] 3 All ER 142 Kuklycz v Kuklycz [1972] VR 50 Lester & Lester [2007] FamCA 186 Milder & Milder [1959] VR 95 In re Taylor, Dec’d (1961) 1 WLR 9 Savenis v Savenis [1950] SAS 309 |
| APPLICANT: | Ms Nygh |
| RESPONDENT: | Mr Kasey |
| FILE NUMBER: | CAC | 1537 | of | 2009 |
| DATE DELIVERED: | 2 March 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 26 February 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R. Friesen |
| SOLICITOR FOR THE APPLICANT: | Watts McCray McGuinness Eley Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr D. Ridge |
| SOLICITOR FOR THE RESPONDENT: | Barker & Barker Solicitors |
Orders
Pursuant to s 88E(1) of the Marriage Act 1961 (Cth), I find that the marriage of Ms Nygh and Mr Kasey of … January 1982 in Thailand is valid and, pursuant to s 113 of the Family Law Act 1975 (Cth), I find the marriage between the parties proved.
I find that the parties are domiciled in Australia and are citizens of Australia.
Pursuant to s 48(2) of the Family Law Act 1975 (Cth), I find the ground of irretrievable breakdown established.
Pursuant to s 55(1)(a) of the Family Law Act 1975 (Cth), I pronounce a divorce order of dissolution of marriage to become effective in one month’s time.
Pursuant to s 55A(1)(a) of the Family Law Act 1975 (Cth), I declare that there are no children of the marriage who have not already attained the age of 18 years.
IT IS ORDERED THAT:
The matter is removed from the pending cases inventory.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
IT IS NOTED that publication of this judgment under the pseudonym Nygh and Kasey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1537 of 2009
| MS NYGH |
Applicant
And
| MR KASEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Nygh began proceedings in this Court on 21 September 2009 by filing an Application for Divorce. In that application, she asserted that she and the respondent, Mr Kasey were married in Thailand on … January 1982. The applicant asserted the parties separated on 1 March 2003 and that they have since that time lived separately and apart. There are no children under the age of 18 years to whom the Family Law Act 1975 (Cth) relates.
The central question for determination in this matter is whether or not the parties were validly married at the relevant time. The consequences of this determination, inter alia, may affect the jurisdictional question about the appropriate forum for determining the future just and equitable alteration of interests in the property of the parties, either under the provisions of the Family Law Act 1975 (Cth) or the Domestic Relationships Act 1994 (ACT).
Relevant background
In a Response filed on 24 November 2009, the respondent asserted that:
The Applicant and The Respondent have never married at law.
In that Response, Mr Kasey further set out the following:
12. The Applicant and The Respondent participated in a religious ceremony under the rites of the Roman Catholic Church in […], Thailand on […] January 1982, but did not marry under the law of Thailand.
In an affidavit filed on 20 October 2009, the applicant set out the background of the commencement of her relationship with the respondent. She has lived in Australia for 40 years, coming here in 1969 as a student and graduating from University in 1979. She was granted permanent Australian residency in 1980.
For a period of about two years between 1980 and 1982, the applicant and the respondent lived together as a couple.
It seems to be common ground that there was some opposition to a formalisation of the relationship between the parties from the applicant’s parents in Thailand, however, in January 1982 the applicant and the respondent travelled to Thailand and went through a form of marriage according to the normal Roman Catholic rites in a Catholic Church in Thailand. It appears that the parties returned to Australia almost immediately afterwards and for a time the applicant continued her career as a scientist. She and the respondent subsequently had three children and she undertook primary duties as a wife and mother and was involved extensively in the children’s schooling. (This latter contention is corroborated by affidavits from those who have known the parties).
The relationship deteriorated, culminating in a separation in early 2003. The applicant deposes to the fact that she continued to care for the family on a daily basis in the family home and that she continues to financially support the parties’ adult children to the extent that she is able to do so. She states:[1]
Since the solemnizing of our vows in the Catholic Faith in [Thailand], I have always regarded myself as married to [the respondent] and never anticipated separation and subsequent divorce.
[1] Affidavit of the applicant, filed 20 October 2009, paragraphs not identified, second page.
The applicant annexed photographs of the wedding ceremony to her affidavit.[2]
[2] Ibid.
The respondent, in an affidavit filed at the same time as his response, maintained that the applicant and he were partners:[3]
in a relationship commencing in approximately 1978 and concluding in February 2003.
[3] Affidavit of the respondent, filed 24 November 2009, [3].
He further deposes to the fact that:[4]
[on] […] January 1982 the applicant and I participated in a religious ceremony in a Catholic Church in […], Thailand. The certificate of Holy Matrimony that the applicant has filed with this Court was given to us at the conclusion of that ceremony.
[4] Ibid, [4].
The respondent further stated:[5]
As at […] January 1982 I was of the belief that no civil registration of a marriage between the applicant and me would occur in Thailand. At all subsequent times and continuing I have been of the belief that no civil registration of a marriage between the applicant me has occurred in Thailand.
At the time that the applicant and I participated in the religious ceremony I was of the belief that the ceremony had no civil legal standing in Thailand unless there was subsequent registration of a marriage with the civil authorities.
[5] Ibid, [5] & [6].
It is common ground that there was no further ceremony of marriage between the parties in Australia and that there was no attempt to register the marriage in Australia after the parties returned here.
The respondent also deposed as follows:[6]
On several occasions between approximately 1986 and 2000 the applicant discussed with me that she wished to obtain a Thai birth certificates for our 3 children
…
During these discussions the applicant said to me words to the effect of “The father of the children will be described as ‘none’ since our marriage was not registered in Thailand, and Thai civil procedures do not recognise de-facto relationships.”
[6] Ibid, [8].
To the best of my recollection, this passage of the respondent’s affidavit was not put to the applicant in cross‑examination and, on the whole of the evidence before me, I do not accept that the conversation occurred in the way indicated. Even if it did do so, that conversation does not affect the determination I propose to make that the marriage ceremony that was conducted in Thailand should be validly recognised as a marriage in Australia. What the applicant’s belief was subsequent to the marriage (if it was a marriage) is substantially irrelevant.
The respondent deposes further to discussions he says have occurred between him and the applicant about the division of property and he asserts that these have been conducted on the basis that the parties’ property should be divided under the Domestic Relationships Act 1994 (ACT), and he says:[7]
We have never discussed splitting superannuation.
[7] Ibid, [10].
I suggested to the respondent at one point during the course of the proceedings that possibly his motivation for opposing the divorce was to prevent the application of the superannuation splitting provisions of the Family Law Act 1975 (Cth). The respondent denied that that was his motivation and I am prepared to accept that that is so.
The respondent finally deposed to the fact that:[8]
On the basis of my belief that I was not already legal married in Australia or anywhere else, I married in a civil ceremony in Canberra in October 2009.
[8] Ibid, [12].
The applicant filed a further substantial affidavit on 9 February 2010 and affidavits from Mrs H,[9] Mr H[10] and Mr S,[11] all of which essentially deposed to the fact that they had known the parties for some time and expressed the opinion that the school community believed and accepted that the parties were a married couple. Mrs H,[12] Mr H[13] and Mr S[14] deposed individually to the fact that they believed that they were a married couple.
[9] Affidavit of Mrs H, filed 9 February 2010.
[10] Affidavit of Mr H, filed 9 February 2010.
[11] Affidavit of Mr S, filed 9 February 2010.
[12] Above n 9, [6].
[13] Above n 10, [6].
[14] Above n 11, [3].
In her further affidavit, filed on 9 February 2010, the applicant deposed to the fact that in 1981 the respondent and she wanted to commit themselves to each other and discussed getting married. She asserted that the parties became engaged to be married in 1981 and planned to have a wedding in Thailand in 1982. The applicant asserted that the respondent had arranged for the purchase of an engagement ring and that the parties travelled to Thailand in late December 1981 to arrange the wedding. There was a preliminary matter related to the respondent’s baptism in a Christian church and he cooperated in the provision of such information to enable the marriage ceremony to occur. She confirms that there was a wedding ceremony in Thailand and that the respondent’s younger brother had flown from Australia to Thailand to attend the ceremony and the reception.
There seems little doubt that a wedding ceremony occurred in accordance with the rites of the Catholic church. That is a concession by the respondent. I am satisfied in conformity with the submissions from counsel for the applicant and from the evidence itself that if the ceremony had occurred in Australia it would have constituted a valid marriage ceremony.
The applicant’s affidavit sets out the vows that she says were exchanged and while the respondent cannot recall the words of the vows, he did not deny that they were the part of the ceremony that the parties undertook.
The applicant says in her affidavit:[15]
Upon compliance with the formal requirement to register the marriage under Thai law, I would have been required, under the Name Act of 1962 (Thailand), to change my surname to my husband’s name. I held a strong conscientious objection to being forced to change my name under what I considered to be a discriminatory law. (emphasis added)
[15] Affidavit of the applicant, filed 9 February 2010, [18].
The applicant adds (without adding any weight, in my opinion, to the propositions already outlined above) that she believed that at the time there were other Thai women who held a similar view to hers.
Somewhat in contradiction to the conversation deposed to by the respondent, the applicant asserts that the respondent made a statutory declaration in 2008 and she annexes a copy of that declaration. In that he asserted that:[16]
Answer: I married [Ms Nygh], a Thai national…
Question 4: Did you register the marriage or not?
Answer: I did not.
[16] Affidavit of the applicant, filed 9 February 2010, Annexure ‘J’.
Further, in her affidavit, the applicant deposes to the fact that:[17]
…people regarded us as married and [the respondent] always introduced me as his wife. Even out friends and family referred to us as Mr and Mrs [Kasey].
[17] Ibid, [28].
The applicant annexes various pieces of correspondence addressed to them in that way.
Issues for Determination
The oral evidence of the respondent was to the effect that he never referred to the parties as husband and wife and his counsel pointed out what he regarded as an incongruity in the applicant’s claiming to have a conscientious objection to taking the name of the husband and yet relying upon others referring to her as Mrs Kasey in support of the proposition that she was married.
I do not accept the evidence of the respondent that during the course of the long time the parties were together he did not refer to the applicant as his wife. In the context of their relationship and the rearing of their children, their involvement in the children’s school and their participation in social events I regard it as more probable than not that he both referred to the applicant as his “wife” and so regarded her.
To some extent each of the parties at present is relating events surrounding their marriage ceremony with some reinforcing convictions based upon the present positions they respectively adopt. I am not certain that at the relevant time if the applicant had been asked by someone whether she had a conscientious objection to the registration of the marriage in Thailand she would have responded positively. I do accept nevertheless, for reasons which I will outline in due course, that she did hold such a conscientious objection.
Equally, while it would be somewhat surprising if the respondent if asked at the same time whether he regarded himself as married after the marriage ceremony (in which he appeared to participate with willingness and even with enthusiasm) he would have said no, although there may well have been some mental reservation on his part about the question of registration and whether or not that would have made the marriage valid in accordance with the law of Thailand.
The interesting discrepancy in both versions of the parties’ recollection of the time of their marriage is that it was (apparently) never intended by either of them that they would live in Thailand. Whether or not the marriage was valid in Thailand would not have been perhaps a matter of great concern. However, that is not an issue which I necessarily need to determine in these proceedings.
There is no issue between the parties other than the question of whether or not the marriage was a valid marriage.
Relevant legal framework
In Australia, Part VA of the Marriage Act 1961 (Cth), deals with the issue of recognition of foreign marriages.
In these proceedings it is necessary that I should find that there was a valid marriage if I am to grant Ms Nygh’s application for divorce.
The Marriage Act 1961 (Cth) makes reference to the Hague Convention on Celebration and Recognition of the Validity of Marriages (‘the Hague Marriage Convention’).[18] Australia is one of the few signatories to this Convention and ratified the Convention on 29 December 1987.[19]
[18] Convention on Celebration and Recognition of the Validity of Marriages, done at The Hague, on the 14th day of March, 1978, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States Members of the Hague Conference on Private International Law at the date of its Thirteenth Session.
[19] The Hague Conference on Private International Law, Status Table – Convention on Celebration and Recognition of the Validity of Marriages – Members of the Organisation (2010), The Hague Conference on Private International Law, < at 2 March 2010.
The Outline of the Convention in relation to the Hague Marriage Convention itself makes states the following:[20]
Part 1, on celebration, makes the law of the place of celebration, lex loci celebrationis, the primary reference. This applies first of all to the formal requirements of the marriage: formalities, witnesses, etc (Article 2). (original emphasis)
[20] The Hague Conference on Private International Law, The Hague Marriage Convention, (2007), The Hague Conference on Private International Law, < at 2 March 2010.
The Outline reflects that the Articles within the Hague Marriage Convention provide some flexibility for contracting state parties about the acceptance of the lex loci celebrationis and the commentary extends to say as follows:
On the other hand, Contracting States may extend the lex loci celebrationis to all marriage celebrations. This is what Australia has done when it ratified the Convention. (original emphasis)
The footnote to the above statement relevantly provides:
The Australian Marriage Act Amendment Act (1985) chose not to maintain the pre‑existing rule requiring the application of the law of the domicile of the future spouses to questions of material validity, and streamlined the Australian choice of law rule entirely according to the lex loci celebrationis.
A copy of the Outline to the Hague Marriage Convention which I have referred are annexed as endnote 1.Endnote 1
The present provisions of Part VA of the Marriage Act 1961 (Cth) hence came into effect after the purported marriage of the parties.
Section 88C of the Marriage Act 1961 (Cth) relevantly states:
(1)This Part applies to and in relation to every marriage solemnized, 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 solemnized, recognized as valid;…
Section 88C(2) provides that if, in effect, subsequent laws passed in the country in which the ceremony was celebrated recognise that the ceremony was valid this would have the effect of its being considered to be valid in Australia.
It is common ground in these proceedings that the marriage would not, at the relevant time, have been recognised as valid in Thailand because of the failure of the parties to register the marriage with the appropriate authorities.
I have no evidence before me that there has been any change to the law in Thailand which would have the effect of recognising (retrospectively) the validity of the ceremony for the purposes of s 88C(2) of the Marriage Act 1961 (Cth).
For reasons which I will turn to in a moment this does not affect a consideration of the validity of the marriage pursuant to s 88E(1) of the Marriage Act 1961 (Cth).
Section 88D of the Marriage Act 1961 (Cth) provides as follows
(1)Subject to this section, a marriage to which this Part applies shall be recognized in Australia as valid.
Section 88D(2) provides exceptions which relate to prohibited degrees of consanguinity and matters relating to consent. None of these factors is relevant to these proceedings. There are also exceptions relating to age (parties who are domiciled in Australia who are under 16 at the time would not be recognised as having been validly married) and there is also reference to “subsequent marriage” which are not relevant for these purposes.
It is noted that a combination of sections 88C and 88D as referred to above would not provide any assistance to the applicant’s case. If, therefore, the marriage ceremony conducted in Thailand on … January 1982 is to be recognised as valid for the purposes of this application, the applicant is obliged in effect to rely upon the provisions of s 88E of the Marriage Act 1961 (Cth). Indeed, in final submissions, counsel for the applicant did so rely and it was assumed in submissions by counsel for the respondent that s 88E governed the matters for determination.
A side issue: the issue of cohabitation and messages from couples to the world at large about their relationships
A matter not raised by counsel and ultimately, in my opinion, potentially not relevant to the issues requiring my determination was the subject of consideration by the Full Court of the Family Court of Australia in Lester & Lester.[21] That judgment related to a purported marriage of an Australian to a Ghanaian in Ghana. Among the matters considered by the trial judge and subsequently the subject of consideration on appeal was the decision of his Honour Dixon J (as he then was) in Axon v Axon.[22]
The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void
…
Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec’d [23]) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so. (original emphasis)
[21] Lester & Lester [2007] FamCA 186 (Kay, Warnick and May JJ).
[22] Axon & Axon (1937) 59 CLR 395, 403-404.
[23]In re Taylor, Dec’d (1961) 1 WLR 9.
The Full Court in Lester & Lester summarise part of the judgment of the then Chief Justice of the High Court as follows:[24]
In our view Taylor (supra) supports a proposition that where parties have lived together for a significantly long period of time and there is evidence of reputation from others in favour of the parties having been married the presumption arises and may be rebutted only with clear evidence showing that the parties had not married.
[24] Above n 21, [50].
However, their Honours went on to comment (and respectfully, I agree), in conformity with Axon v Axon, that there had to be a ceremony of marriage.
As it transpired, in Lester & Lester, there was significant doubt about whether the ceremony had ever occurred.
The application of these principles to this matter would suggest that where there is no doubt that there had been a ceremony of marriage and in this case one which is validly recognised by the Catholic Church,[25] the primary basis for the application of the presumption would apply. In the circumstances before the Full Court in Lester v. Lester, the potentially competing effect of the provisions of the MarriageAct 1961 (Cth) to which I have referred above does not appear to have been considered to have been relevant. Nevertheless, in this matter those provisions are squarely raised and, in my opinion, the terms of the presumption cannot prevail over a clear statutory provision to the contrary.
[25] See the certificate from Bishop … to this effect, Affidavit of the applicant, filed 9 February 2010, Annexure ‘F’.
The onus of proof
Interestingly, perhaps, while ordinarily the onus of proof that the marriage was valid would be on the applicant, the application of the presumption (as set out in Lester v. Lester, Axon v. Axon and In re Taylor, Dec’d) would seem to suggest that having established that a marriage ceremony had taken place and having shown that there was a long period of cohabitation in which the parties were regarded as husband and wife (both of which the applicant in this case has succeeded in establishing) the onus of displacing the validity of the marriage would rest with the respondent.
However, in the circumstances in this matter before me the question of onus is not relevant, except peripherally in aid of the final determination to which I must turn in my consideration of s 88E(1) of the Marriage Act 1961 (Cth). If at the end of my considerations I am equivocal about whether or not the marriage is valid, in my opinion, consistent with the authorities set out above, the onus would lie upon the respondent to establish that the marriage was not valid in the circumstances where the ceremony had taken place and the co‑habitation supportive of the parties being husband and wife had been made out.
Section 88E(1) of the Marriage Act 1961 (Cth)
Section 88E provides as follows:
(1)Subject to subsection (2), a marriage solemnized in a foreign country that would be recognized as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this subsection to be recognized as valid shall be recognized in Australia as valid, and the operation of this subsection shall not be limited by any implication arising from any other provision of this Part.
Then follows subsections which provide exceptions to this recognition, but none of these are relevant for these purposes.
On first reading, the section is difficult to interpret. The language used is hardly felicitous. However, considered in the context of the Hague Marriage Convention, s 88E(1) appears to be part of the broader objective of recognising the validity of foreign marriages wherever that is reasonable to do so. In outlining the objective of the Hague Marriage Convention, the Preamble relevantly provides:
The States signatory to the present Convention,
Desiring to facilitate the celebration of marriages and the recognition of the validity of marriages,
Have resolved to conclude a Convention to this effect, and have agreed on the following provisions -
Section 88A of the Marriage Act 1961 (Cth) provides as follows:
The object of this Part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978.
Considered in that context, it would appear that s 88E(1) is designed to extend the range of marriage ceremonies or marriages more precisely, which ought to be recognised in Australia pursuant to the Marriage Act 1961 (Cth). The parenthetical exclusion in s 88E(1) of marriages otherwise recognised under the relevant Part is obviously made out in this matter by a concession before me. The marriage as conducted in Thailand without registration would not be recognised as valid in accordance with the laws of Thailand.
The question therefore before me is whether the marriage of the parties solemnised in Thailand:
would be recognized as valid under the common law rules of private international law.
Relevant case law
Surprisingly, there have not been a great number of decisions on this matter. The decisions which most courts appear to come back to[26] is Milder v Milder.[27] This was a single judge decision of his Honour Justice Smith of the Supreme Court of Victoria. The passage most commonly quoted from his Honour’s Judgment (and by their Honours in the Full Court of the Family Court in Banh) appears as follows:[28]
...compliance with the law of the place of celebration is to be regarded as impossible, whether because there is no law enforce there or because facilities are denied or because compliance would be against conscience….
[26] And most recently by the Full Court of the Family Court of Australia, In the marriage ofBanh (1981) 6 Fam LR 643 (Watson and Emery SJJ, Treyvaud J) (‘Banh’).
[27] Milder & Milder [1959] VR 95.
[28] Ibid, 98.
This is in the context where ordinarily the lex loci celebrationis is to be regarded as inapplicable, which since the Hague Marriage Convention and the amendments to the Marriage Act 1961 (Cth) in 1985, is to be the ordinary situation.
In this case, the lex loci celebrationis would exclude recognition of the ceremony which took place. The question which arises, therefore, is whether in the words of Justice Smith (referred to with approbation by the Full Court of the Family Court in Banh), compliance is to be regarded as “[impossible] whether because there was no law enforce there or because facilities are denied or because compliance would be against conscience.”
It is common ground in this matter that it would have been possible for the parties to register the marriage. The evidence of the respondent is that he did not want to (although I am not convinced that he adverted to the issue at all at the time), and on the part of the applicant that she consciously objected to doing so because of the effect that would bring about under the relevant law then in force in Thailand.
There have been decisions which relate to the issue of what constitutes “impossibility”,[29] these have primarily related to circumstances where parties were refugees or prisoners of war or were in countries disrupted civilly to the extent that it was physically impossible for registration to occur. It appears, however, that physical impossibility is not the only exception, and, indeed, his Honour Justice Smith in Milder v Milder adds the words, which do not appear to have been the subject of criticism in any subsequent decision, “would be against conscience.”
[29] See, for example, Savenis v Savenis [1950] SAS 309; Kuklycz v Kuklycz [1972] VR 50.
Although I have been unable to discern from my research that any subsequent court appears to have considered the implications of the extent of this extension of the issue of the question of impossibility, his Honour Justice Smith himself appears to have taken a relatively narrow interpretation of it. In his judgment, following on from the statement referred to above, his Honour quotes from the evidence which recorded that the participants in the ceremony, (or at least relevantly the respondent,) said that he chose the form of ceremony because: [30]
…he believed in the Jewish ceremony, and that he still practises the Jewish faith.
[30] Milder v Milder [1959] VR 95, 98.
The respondent in Milder v Milder went on to say, as quoted by his Honour: [31]
but I did not think it was necessary to have a civil marriage performed.
[31] Ibid, 99.
Justice Smith then went on to say:[32]
Upon the whole of the evidence I consider that no case of impossibility has been made out. Indeed the clear probability appears to me to be that there was no real difficulty in the way of complying with the local law.
[32] Ibid.
It must be noted however that the Milder case is capable of being distinguished from the present situation in that there was no assertion that the failure to register the marriage or to have the civil ceremony performed was necessarily a matter of conscience as such.
Justice Smith then added (perhaps unhelpfully for the present applicant):[33]
...the question left open in Kochanski’s[34] Case, supra, should be decided against the petitioner.
[33] p 100
[34] In reference to Kochanski v Kochanska ([1957] 3 All ER 142), Justice Smith states at 100: “Some of the language used in this judgment [Kochanski’s Case] implies that an enquiry into the actual mental attitude of such a community is relevant; but the judgment points out that the case does not decide whether, where compliance with the local law is possible, an individual who is acting in isolation can assert that he has not subjected himself to the local law.
Justice Smith further stated:[35]
It would amount in substance to an overthrowing of the general rule that the local law governs formal validity, for it would mean that the question whether the local law governs would depend in all cases upon the result of an inquiry as to the intention of the parties.
[35] Ibid, 100.
Justice Smith, in the circumstances of the case before him, determined that the question of “impossibility” had not been made out by the petitioner. His Honour also appears to have determined, although his decision is not binding on me, that it would be inappropriate to make inquiry into the mind or mental reservation of the parties relating to the ceremony.
Particularly after a long period of time, Justice Smith is clearly correct in his analysis of the undesirability or impracticability of such an enquiry. Such an enquiry would also be in many respects inconsistent with the Hague Marriage Convention and with the amendments to the Marriage Act 1961 (Cth) to which I have referred.
However, in this matter the distinguishing fact relates not to the ceremony itself but rather to the question of registration. The Hague Marriage Convention and the subsequent amendments to the Marriage Act 1961 (Cth), in my opinion, were designed to maximise or at least to facilitate the recognition of foreign marriages. This is not a case where because of some mental reservation on the part of one of the parties it is asserted that the ceremony that took place was not intended to bring about a marriage. The only issue really for determination is whether the alleged “conscientious objection” of the applicant to the registration of the marriage in Thailand would support the validity of the marriage, even though it failed in the circumstances to comply with the lex loci celebrationis.
So far as I am able to determine this issue has not, in this form, been previously determined.
The submissions before me from counsel proceeded on the basis that there was an exception in the “common law rules of private international law” for conscientious objection. Counsel might be excused for accepting the broad statement of his Honour Justice Smith, quoted by the Full Court of this Court in Banh, as implicitly extending the categories of exception under the heading impossibility. For the reasons I have set out above, I do not believe Justice Smith was intending such a broad extension and I am not satisfied that the Full Court of the Family Court in Banh necessarily endorsed the broader proposition. Nevertheless the Full Court in Banh did not comment on or restrict the terms used by Justice Smith and, in my opinion, it is open to this Court and to me at first instance to accept that if the applicant had a conscientious objection to compliance with the formal requirement of registration, then this would not invalidate the marriage for that reason alone. Further, it would also bring the applicant within the exception as outlined in s 88E(1) of the Marriage Act 1961 (Cth) subject to the requirement that the marriage would otherwise be recognised according to the common law rules of private international law.
Submissions were directed to what might properly constitute a conscientious objection.
Mr Ridge, on behalf of the respondent, asserted, in my opinion correctly, that a conscientious objection was a “linear concept”, with at one end of the line a belief held being fanciful or whimsical and at the other, a belief held of high moral principle.
The Macquarie Dictionary (Revised Third Edition) defines “conscientious objector” as follows:
one who on the grounds of deeply held beliefs refuses to meet a political or communal obligation, as military service, compulsory voting, the attendance of children at school, etc.
It seems clear that there might be a conscientious objection which was based on profound moral conviction. Into this category I would place conscientious objection to being conscripted on the grounds of pacifism. At the other end a mere whim or fancy that something should not occur would, objectively speaking, be ordinarily rejected as being a conscientious objection.
Nevertheless, in my opinion the issue is not so much whether the substance of the objection is a grave moral matter but rather whether the conviction is sincerely and conscientiously held.
It remains perhaps a question for another day whether a conscientiously held objection about something which may be objectively “frivolous” would determine the issue in favour of the applicant but that is not the case here. The applicant’s conviction while falling short perhaps of the high morality of the sanctity of human life nevertheless deals with a major matter of conscience. She asserts it relates to the question of discrimination against woman and the rights of a woman to be regarded as an individual, notwithstanding their marriage to a man.
Accordingly, in my opinion, on the basis of the substance of the belief and also the firmly held nature of the conviction, the applicant has made out that she had a conscientious objection to the registration of the marriage in Thailand at the time.
Consequently, given my views about the extended definition of conscience in accordance with the statements set out by his Honour Justice Smith in Milder v Milder, referred to with approval in the Full Court of the Family Court in Banh, the applicant has made out that she had a conscientious objection to registering the marriage in Thailand.
Validity of the marriage: lex fori or lex domicilii?
The legal authorities, particularly those from England, are somewhat divided about whether in determining whether the ceremony which I have now decided ought to be considered in accordance with the common law rules of private international law is valid should be determined in accordance with the lex fori, or the law of the country in which the matter is being considered, or in accordance with the law of the domicile of the parties (lex domicilii). The debate is interesting, but of no relevance to the proceedings before me as at the relevant time the domicile of both parties was Australia and the lex fori is also the law of Australia for these purposes.
For the reasons, I have set out above there was no contest about the proposition that if the ceremony had been conducted in Australia it would have constituted a valid marriage ceremony.
Conclusion
Accordingly, in my opinion, the marriage was valid in accordance with the common law rules of private international law and accordingly in accordance with s 88E(1) of the Marriage Act 1961 (Cth) should be recognised as a valid marriage in Australia. I make orders in accordance with my judgment.
Having come to that conclusion it is unnecessary for me to rely upon the presumption about cohabitation and representations to the world at large about a couple’s relationship (as considered by the Full Court in Lester & Lester and the High Court in Axon v Axon to which I referred above .) The presumption, however, would operate in aid of this determination, not against it.
Afterword
It might be thought in the light of my findings in this matter, the recent marriage of the respondent was bigamous. To allay any fears on the respondent’s part, I record that I could not be satisfied on the balance of probabilities let alone beyond reasonable doubt that at the time of the respondent’s contracting his second marriage he knew or believed or was even reckless as to the fact that he was already validly married to the applicant.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Legal Associate:
Date: 2 March 2010
Endnote 1
Outline of Convention:
The Hague Marriage Convention
The Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages may be seen as implementing, for international and in particular cross-border situations, the provision of Article 23 of the United Nations International Covenant on Civil and Political Rights,1 which places the right of marriage of men and women of marriageable age in the foreground, and bases marriage on the free and full consent of the intending spouses. To that end, the Hague Convention does two things: it facilitates the celebration of marriages, and it ensures the recognition of the validity of marriages across national borders. Part I of the Convention deals with celebration of marriage; Part II with the recognition of foreign marriages.
The international aspects of the celebration of marriages
Part I, on celebration, makes the law of the place of celebration, the lex loci celebrationis, the primary reference. This applies first of all to the formal requirements for the marriage: formalities, witnesses, etc (Article 2). This is hardly surprising, because this is one of the few questions of choice of law on which most systems of private international law agree. But it also applies to the material or substantive requirements of the marriage (Article 3, paragraph 1). This is in accordance with the approach some countries, in particular immigration countries, have taken, but is new to many countries of the civil law, and some of the common law tradition, which tend to apply the personal law of each future spouse to determine the substantive requirements of the marriage.
The law of the celebration approach of Article 3, paragraph 1, is simple and has three major advantages: (1) local authorities can apply the requirements of their own law in respect of consent of the parties or age and degree of prohibited relationship (e.g., uncle and niece), and not the requirements of the law of the domicile, nationality or community of foreign marriage candidates; (2) it avoids characterisation problems, for example, the problem of determining whether a parent’s consent is a matter of form or of substance, because the applicable laws will coincide; and (3) it allows unusual or oppressive requirements of a foreign law (e.g., any requirements based on race or colour) to be ignored.
It should be noted that Articles 3-6 apply a technique which leaves Contracting States a certain flexibility. On the one hand, they may, under Article 6, reserve the right to maintain certain exceptions to the reference rule in Article 3 (1) (i.e. that of applying the lex celebrationis to the substantive requirements for the celebration of marriages). None of the States Parties to the Convention, however, has made the reservation of Article 6.
On the other hand, Contracting States may extend the lex loci celebrationis to all marriage celebrations. This is what Australia has done when it ratified the Convention.2 Accordingly, a marriage must be celebrated in that State where the future spouses meet the substantive requirements of its internal law. This approach also works as a simplification of Articles 3-6, because the only law applied will be the internal law, not any foreign law.
Recognition of the validity of foreign marriages
While Part I of the Convention, on celebration, is optional and may be excluded, Part II, on the recognition of the validity of marriage, in contrast is mandatory. The question of the recognition of the validity of marriages is critical in an age of exponential growth of mobility. The basic rule of the Convention is a simple one: the State of celebration – it is important to note that this may be any State, not just another Contracting State – determines the validity of the marriage, and the Contracting States are bound, subject to a limited number of exceptions and subject of course to the mandates of their ordre public, to recognise the validity of the marriage if valid according to the law of the State of celebration (Article 9). This has the great advantage of avoiding the need to review the applicable law under the conflict of laws rules of the recognising State. Special provision is made for marriages concluded by diplomats or consuls. Where a competent authority of the State where the marriage was celebrated has issued a marriage certificate, the marriage shall be presumed to be valid until the contrary is established (Article 10).
A limited number of exceptions are allowed (Article 11): a Contracting State may (not must) only refuse to recognise the validity of a marriage where at the time of the marriage under the law of the requested State, (1) one of the spouses was already married; or (2) the spouses were related to one another, in the direct line or as brother and sister; or (3) one of the spouses had not attained the minimum age required for marriage; or (4) if one of the spouses lacked the capacity to give their consent or (5) did not freely consent to the marriage. In addition, ordre public may be invoked by the requested State, for example, when in a concrete case the marriage certificate, or the underlying marriage itself, is a fake or is otherwise fraudulent. So, while the Convention favours the recognition of marriages, it avoids the possibility of resorting to “marriage heavens”.
The rules on recognition of the validity of a marriage also apply where the recognition question arises in the context of another question, e.g., in the context of a re-marriage: the validity of the previous marriage is then referred back to the law of the place of celebration.
Although the Convention has not yet been ratified by many States (currently Australia, Luxembourg and the Netherlands are States Parties), it is very modern in its approach. It has been a model for recent work by the International Commission on Civil Status. The Convention is simple, straightforward, and, in many ways ahead of its time. It deserves to be looked at more closely than has perhaps been the case thus far.
1 Article 23 of the International Covenant on Civil and Political Rights of 16 December 1966 reads as follows:
“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”
2 The Australian Marriage Act Amendment Act (1985) chose not to maintain the preexisting rule requiring the application of the law of the domicile of the future spouses to questions of material validity, and streamlined the Australian choice of law rule entirely according to the lex loci celebrationis.