OLMPEI & BANIENEVA

The applicant sought a decree of nullity of a marriage solemnised in Queensland in December 2008 with the respondent. The basis for the application was that the respondent was already married at the time of the ceremony, and there was no record that her first marriage had been dissolved. The court proceeded on the assumption that the respondent's first marriage remained valid.

The primary legal issue before the court was whether the marriage solemnised in Queensland was void due to the respondent's subsisting prior marriage. A secondary issue concerned the proper service of documents on the respondent, who had returned to the Philippines and could not be contacted by the applicant. The applicant had sent documents to the address listed on the respondent's passport.

Barry J reasoned that a marriage is void where one of the parties is already lawfully married at the time of the ceremony. In the absence of evidence to the contrary, the court presumed the respondent's first marriage was still valid. Consequently, the second marriage was a nullity from its inception. Regarding service, the court was satisfied that service had been duly effected, deeming it sufficient despite the respondent's absence from Australia.

The court acceded to the application and declared the marriage solemnised at B in the State of Queensland on December 2008 between the applicant and respondent to be absolutely null and void.