Oltman and Harper (No 2) - [2009] FamCA 1360

FAMILY COURT OF AUSTRALIA

OLTMAN & HARPER (NO. 2)

[2009] FamCA 1360

FAMILY LAW – MARRIAGE – Declaration of validity of marriage – Religious ceremony performed by Sheikh (Celebrant) not authorised under Australian law – Islamic ceremony of marriage – Husband arranged ceremony with no involvement of wife – Sheikh’s first Australian marriage – No compliance with forms and requirements of the wedding ceremony – Intent of the parties – Children and cohabitation born during relationship – Reputation and community acceptance as a family – Presumption of marriage

Family Law Act 1975 (Cth) ss 4, 79, 113
Marriage Act 1961 (Cth) ss 41, 42, 44, 45, 46, 48, 50

Jacombe and Jacombe (1961) 105 CLR 355
Kousal and Tack [2002] FamCA 1152
Lengyel and Rasad (1990) FLC 92-154
Lester and Lester [2007] FamCA 186
Re Taylor (deceased); Taylor v Taylor and Another [1961] 1 All ER 55
Sheludko v Sheludko [1972] VR 82
W and T [1998] FamCA 49
Wold and Kleppir [2009] FamCA 178

APPLICANT:

MR OLTMAN

RESPONDENT:

MS HARPER

FILE NUMBER:

MLC

9619

2008

DATE DELIVERED:

3 SEPTEMBER 2009

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

24 JULY 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

MR KHAN

SOLICITOR FOR THE APPLICANT:

STARNET LEGAL PTY LTD

COUNSEL FOR THE RESPONDENT:

MR LETHLEAN

SOLICITOR FOR THE RESPONDENT:

WOMEN'S LEGAL SERVICE VICTORIA

Orders

Pursuant to s. 113 of the Family Law Act 1975 (Cth) IT IS DECLARED that the marriage entered into between Ms Harper and Mr Oltman in March 2000 is legally valid.
THAT the initiating application of the husband filed 13 March 2009 and paragraph 1 of the wife’s response filed 28 April 2009 be dismissed.
THAT the issue of the payment and quantum of any costs be reserved for argument before the Trial Judge.

IT IS NOTED that publication of this judgment under the pseudonym Oltman & Harper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9619 of 2008

MR OLTMAN

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

I am asked by the applicant husband pursuant to s. 113 of the Family Law Act 1975 (Cth) (“the Act”) to declare that no valid marriage exists between he and his wife. I have identified the parties, for the purposes of this Judgment, as husband and wife because the husband’s position is that they were married religiously under Islamic law whereas the wife’s position is that they were married under Islamic religious law which was also a civil ceremony within the requirements of the Marriage Act 1961 (Cth) (“Marriage Act”).
The husband’s initiating application in this Court was filed 13 March 2009. At the time that application was issued the husband was respondent to a property application pursuant to s. 79 of the Act which was then before the Federal Magistrates Court. That matter had been adjourned during a Financial Conciliation Conference before a Registrar, and effectively stayed, pending the hearing and outcome of this application for the husband’s declaration as to the validity of the marriage.
The wife’s response in this Court was filed 22 April 2009 and therein she sought the dismissal of the husband’s application for such a declaration, together with her costs of and incidental to these proceedings.
I reserved the right to the legal practitioner of both parties to provide the Court written submissions on issues of fact and law and these documents have now been filed and I have read and evaluated the arguments and submissions therein.

BACKGROUND FACTS

The parties were both born in Somalia. The wife is 35 years of age and the husband 40 years of age.
Both parties are Australian citizens. The husband immigrated to Australia in or about 1996 and the wife, one year later, in or about October 1997.
The parties first met in Melbourne in February 2000, though the husband said that date was late 1999. It was agreed by each of them that a ceremony of marriage was performed on an unknown date in March 2000 by Sheikh M, a witness in these proceedings, whose evidence I have hereafter substantially considered.
The husband and wife had both been previously married and each of them have three children from those marriages. The children of the wife are now aged 16, 14 and 11 and they have lived with her at all times. The husband did not provide any particulars of his children from his previous marriage.
I accept that during the period that the husband and wife lived together and until their first separation in October 2003 the wife was also the primary carer for the husband’s three children born of his previous marriage.
There are four children born to the husband and wife and they are:
§A born in May 2001;
§N born in March 2005;
§K born in February 2007; and
§D born in January 2008.
I accept the evidence of the wife that between the date of the ceremony in March 2000 and about July 2002 the parties lived in different homes but spent significant periods of time together, primarily at the wife’s home and this situation came about because each of them desired to retain their Government provided housing.
Actual daily cohabitation commenced in July 2002 and the parties lived together until their initial separation in October 2003. They resumed their relationship in late 2004 and then separated in March 2005. They again reconciled in or about July 2006 and final separation occurred in early 2008.
The husband, without notice to or knowledge by the wife, sought and was granted an Islamic divorce in September 2008 which was obtained without any hearing but by discussion between the husband and Sheikh F, of the R Mosque. The certificate of that Islamic divorce is before the Court as an annexure to the further affidavit of the wife.

HUSBAND’S EVIDENCE

The initial affidavit of the husband was filed 13 March 2009 in the Federal Magistrates Court. It is a document relevant both to the declaration of marriage issue and also to the property application then before that Court.
The husband asserted therein that he and his wife were never married in accordance with the provisions of the Marriage Act and he said that:
“Indeed the religious ceremony which the respondent and I underwent was not a marriage conducted by a duly appointed or duly recognised Islamic Imam or Marriage Celebrant. Instead the ceremony was performed by a member of the Somali community not recognised as a person authorised to perform marriages in accordance with the Marriage Act”.
The further affidavit of the husband was filed 23 July 2009, though I observed it was sworn on 1 May 2009 and was filed in response to service upon him of the wife’s first affidavit, sworn 27 April and filed 28 April 2009.
In this further affidavit the husband stated that the parties underwent a traditional religious “commitment ceremony” for the purposes “of me having an intimate relationship with the respondent and for us to be together”. In written submissions for the husband, it was submitted that “the ceremony conducted can be seen to be a mere formality that has been instigated by both parties in order to silence concerns raised by the community that they are doing something sinful”.
The husband alleged that at all times the wife was aware of the purpose of the ceremony. He asserted that she understood that it was “a commitment ceremony” and not a legal marriage to be recognised by Australian Law. The husband further asserted that the wife did not believe that they were legally married in March 2000 by the Sheikh who conducted the traditional ceremony. He further alleged that the wife was now pretending that she did not understand the ceremony and was seeking to equate it to a legal marriage only for the purposes of the other proceedings before this Court. The husband identified various actions of the wife that he claimed were inconsistent to any marriage and in particular her notifications to Centrelink that she was living in a de facto relationship with him, and not a marriage. Further it is said that on the Birth Certificates of the four children of the marriage, which were not in evidence before the Court, the husband was described as “her de facto partner”. He asserted that she had never identified him as her husband save that in the Somali community where a marriage ceremony must have occurred for “a man and woman to be together in the one room”.
The husband otherwise relied upon the fact that the person who conducted the ceremony was not recognised by Australian Law as a marriage celebrant and that all of the required forms and procedures for a valid marriage were not followed and complied with by himself. In his written submissions reference is made to the absence of any marriage certificate, rings, celebration, gifts or “atkaiv”, a ceremonial wedding book.
There is a somewhat bizarre allegation in paragraph 10 of that further affidavit that the respondent wife had now remarried pursuant to a religious ceremony and that was relied upon by the husband as evidence of the fact that the wife must not have considered the March 2000 ceremony to be a legally binding marriage pursuant to civil law as otherwise she could not or would not have remarried. The wife’s evidence in response was that she did not know the gentleman identified by the husband as purportedly her now further husband. She denied any religious ceremony and I accept her evidence.
The husband was cross-examined and it was very evident from his evidence that he acknowledged and accepted the religious marriage ceremony. That was a matter of extreme importance for him because of his intentions to be sexually active with the wife and he respected his community and religious requirements that forbade relations until they had been religiously married.
The husband agreed that within the Somali community he and his wife, and their four children, were regarded by all as a married couple and family. That is an important fact upon which I have carefully deliberated and given substantial weight.
The husband acknowledged that the wife cannot read or write English and her evidence was given with the assistance of a Somali interpreter. The wife has only a basic understanding of English as was evident in the giving of her evidence. The relevance of this fact was her inability to complete Government forms and declarations which she asserted in her affidavit were completed by the husband on her behalf. The wife said that he would explain the contents of the forms to her and she would then sign them. She acknowledged having an understanding of the English language but difficulty in reading and writing English and said that she trusted the husband “to do the right thing”.
In his affidavit, the husband denied completing Centrelink forms for the wife and asserted that she was accompanied by an interpreter whenever she attended Centrelink. However in his oral evidence, the husband acknowledged completing various forms, Centrelink documents and birth registration documents and his involvement was such, and on balancing the evidence of the husband and wife, I have no regard to these documents in concluding any findings against the wife or in drawing any support whatsoever to declare invalid the marriage performed in March 2000.
Generally I was unimpressed with both the evidence given by the husband and his demeanour and manner of giving his evidence. I find that he intended to marry the wife and he, at the time of the marriage ceremony, made no distinction between a religious or civil ceremony of marriage. Where there are significant areas of disagreement between the evidence of the husband which I have now analysed and the evidence of the wife which I have carefully set out hereunder, and the further evidence of Sheikh M, my clear preference is for the evidence of the wife, particularly so where supported by the evidence of the Sheikh.

WIFE’S EVIDENCE

The wife’s first affidavit was filed 28 April 2009 and sworn by her with the assistance of a Somali interpreter. She is a full-time mother and homemaker who lives in Government housing with her seven children. She has no formal qualifications and is wholly reliant upon social welfare benefits. The husband does not pay child support for any of his children notwithstanding his alleged income from his employment as a taxi driver which the wife deposed to be approximately $1,200 per week.
I have separately considered all aspects of the ceremony but the wife’s assertion is that:
“When the husband and I married I intended to be wedded to the husband for all intents and purposes. There was no delineation between religion or law in my mind. When we married I trusted the husband had organised our marriage so that it would be recognised in the eyes of Allah and in Australian society. I trusted that the husband would care for me and our children as he promised to do at our wedding”.
The wife’s evidence continued and she stated in her affidavit that:
“Our marriage, and the recognition of our marriage, was and is very important to me as I would not have had children with the husband if we were not married. It is important in my culture to be married to a man before having children with him. Our first child, namely [A] was born [in] May 2001, approximately one year after the husband and I married.
The husband and I are recognised as husband and wife by friends and family members. It would be a great source of shame for me amongst friends and family members if our marriage was declared invalid as the husband seeks”.
On a careful evaluation of all of the evidence in this case, and my observations of both parties in giving their evidence I wholly accept that evidence of the wife outlined in the previous two paragraphs hereof. I accept that marriage and its recognition within her community was vitally important to her. I accept that she was of the understanding that the husband had arranged the marriage ceremony properly and in compliance with requirements of local and religious law and custom.
The wife’s further affidavit filed 16 July 2009 and her Counsel’s written submissions are primarily concerned with the marriage ceremony and following events which I now turn to consider and carefully evaluate.

MARRIAGE CEREMONY AND EVIDENCE OF SHEIKH M

Neither party can recall the specific date in March 2000 of that ceremony. Both however agree that a formal ceremony took place at the then home of the wife, at approximately 1.30 p.m., on the day in question.
The ceremony was performed by Sheikh M and he has both filed a statement of proof of evidence on 16 July 2009 prepared by the wife’s solicitors and given evidence in the proceedings and I have carefully analysed his evidence.
The husband had the responsibility of organising the ceremony. He had made the previous acquaintance of Sheikh M when meeting him on four or five occasions at a North Melbourne restaurant which was said to be a base for the Somali community in that area. Sheikh M was then attached to the Y Mosque. I accept that there was no meaningful discussion between the husband and the Sheikh on those initial occasions at that restaurant.
Thereafter the husband formally approached that Sheikh at the Y Mosque on two occasions requesting him to perform the marriage ceremony. On both occasions he was unable to assist because of other arrangements. Finally, and on a third occasion the husband approached him and he agreed and thereafter, and within a matter of hours, he had attended at the wife’s home and the marriage ceremony was performed.
There were two male witnesses present at the ceremony, neither of whom can be currently located, and one of whom lives overseas. The ceremony was performed over a period of approximately 40 minutes and conducted pursuant to the custom marriage procedures of Islam.
In preparation for this religious ceremony, and in accordance with Somali custom and tradition, there had been several prior phone calls made to the wife’s parents, and specifically her father, all then living in Somalia. The initial calls were for the purposes of providing an introduction to the husband for him then to ring her father and seek permission for marriage. That permission was sought and given by the father shortly prior to the date of the religious ceremony, though the evidence is certainly somewhat uncertain and confused as to specific dates and times for these events. It was further submitted in the wife’s written submissions that the husband paid the wife’s family a dowry in the sum of AUD $1,000.
I do accept, and it is a matter of agreement, that as part of the religious ceremony, Sheikh M rang and confirmed the approval of the father to his daughter marrying the husband. That was a central part of that religious ceremony.
The ceremony was performed in a formal manner and there was an explanation by Sheikh M about marriage and the permanency and obligations of marriage. As part of the ceremony questions were asked of both participants as to their love of each other, their willingness to marry the other and to live together as a family.
In particular the proof of evidence filed on behalf of Sheikh M identified the ceremony in paragraph 5 thereof and I accept he performed that ceremony and stressed those obligations of each of the parties to each other.
Sheikh M had arrived in Australia some two years prior to conducting this religious ceremony. His evidence was that this was actually his first ceremony performed in Australia, though he had considerable experience in conducting such religious ceremonies in Somalia. The Sheikh was not an appointed Imam at the date of this marriage ceremony though I find that that fact was unknown to the parties and is not a factor of real importance to the outcome of this application.
The Sheikh was not authorised under Australian Law as a celebrant pursuant to the Marriage Act at the time of the ceremony though he now has that qualification and authority as and from approximately 2003.
I accept the wife had no knowledge of the fact that Sheikh M did not have such civil marriage authority and the formal manner in which the ceremony was conducted would certainly have reinforced to the wife that this was a formal marriage, both legal and religious. The parties exchanged vows and they were pronounced to be husband and wife. I have carefully read and considered paragraph 24 of the wife’s first affidavit, as to the ceremony, and that largely agrees with the evidence of Sheikh M, and in part the evidence of the husband. I accept the evidence in paragraph 24 of her affidavit.
With her limited skills in the English language, and reading and writing, the evidence of the wife was that she left all arrangements for the wedding, including all proper notification and paperwork to the husband as his responsibility. In all of her circumstances that was a very reasonable approach primarily given the responsibility for the male within Somali culture to undertake all of these arrangements. I find that no notices were given or information sought and obtained as to the requirements for an Australian marriage as detailed within the requirements of s42 of the Marriage Act.
There was no marriage certificate signed or paperwork completed from that ceremony. No rings or gifts were exchanged though the wife said that is not unusual and the evidence of the Sheikh was that, in small weddings of this type, and where finances are very limited, it is often the norm for the ceremony to be simple without exchange of gifts. The Sheikh received no payment for the ceremony and did not remain for any food or drink.
I accept that the Sheikh, in March 2000, did not know of the requirements of Australian Law. His evidence was that he had not discussed an Australian civil marriage with either the husband or wife. In the period leading up to this case, and the giving of his evidence, he provided the proof of evidence to the wife’s solicitors and his further evidence was that the husband had contacted him in the days prior to the hearing to discuss his evidence and what he would say to the Court. As to his evidence I found Sheikh M to be careful, considerate and genuine. He emphasised the commitment and quality of the marriage ceremony he performed and the commitment of the husband and wife to each other as a couple married under the laws and ceremony of Islamic custom and tradition.

ISSUES TO BE DETERMINED

On the facts outlined the primary issues to be determined are:
(a)Did the parties undergo a ceremony of marriage valid for both religious and civil purposes?
(b)Did the wife, at the time the marriage was solemnised believe that the celebrant was lawfully authorised to perform the marriage and that she was thereby to become the lawful wedded spouse of the husband?
(c)Does the presumption of marriage apply?
(d)What declaration is justified pursuant to s.113 of the Act?

VALIDITY OF THE MARRIAGE CEREMONY

FAMILY LAW ACT

Section 113 of the Act is in the following terms:
“In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in sub-section (4)(1) the court may make such declaration as is justified”.
Section 4(1)(b)(1) provides:
“Matrimonial Cause means:
(b)proceedings for a declaration as to the validity of:
(i) a marriage;
(ii) …”.

MARRIAGE ACT

It is provided in s. 41 of the Marriage Act that:
“A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorise to solemnise marriage as at the place where the marriage takes place”.
Section 42 of the Marriage Act provides for the notice that is required to be given and declarations made and, without setting out each of its sub-sections, it is a fact in this case that the parties did not properly comply with all of the various requirements imposed upon them and upon the authorised celebrant.
Section 44 of the Marriage Act required the marriage to be solemnized in the presence of at least two witnesses who are over 18 years of age and this occurred.
Section 45 of the Marriage Act provides that:
“Where a marriage is solemnised by or in the presence of an authorised celebrant, being a Minister of Religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purposes by the religious body or organisation of which he or she is a Minister”.
I have not relied upon this section as Sheikh M was not, for the purposes of Australian law, an authorised celebrant as at the date of the ceremony in March 2000 and I have therefore more particularly examined the facts of and surrounding that wedding ceremony and the other statutory provisions within the Marriage Act to conclude a just and proper outcome to this hearing.
Section 46 of the Marriage Act required an authorised celebrant to recite particular words to the parties to highlight the nature of marriage, that it is solemn and binding and that it is to be “a union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. I am satisfied that that part of this section was complied with on the evidence of the wife and the Sheikh however it is clear that the Sheikh did not and could not have advised the parties that the marriage was performed pursuant to Australian Law. I am however otherwise satisfied that the nature and obligations of marriage were both explained to, stated and understood by the parties.
Notwithstanding the above-mentioned provisions, s. 48(2) of the Marriage Act provides:
“(2) A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorized celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;
(e)failure to comply with the requirements of section 44 or 46;
(f)failure to comply with the requirements of section 13”.
Of particular relevance to this matter is s. 48(3) of the Marriage Act which provides:
“A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that the person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if it were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other”.
There is no dispute that the parties did not comply with sections 41, 42 and 46 of the Marriage Act as Sheikh M was not an authorised marriage celebrant nor was the requisite notice provided nor words spoken. Nonetheless, the failure to comply with the notice requirements of s. 42 does not render the marriage invalid pursuant to s. 48(2)(a)–(d) of the Marriage Act. The failure to comply with s. 41 can be resolved by s. 48(3).
The evidence before the Court is that there were two witnesses present at the ceremony in accordance with s. 44 of the Marriage Act. There is also evidence that the Sheikh stressed the obligations of marriage to the parties and although this does not wholly comply with s. 46 of the Marriage Act, the marriage is not invalid pursuant to s. 48(2)(e).
The Sheikh did not issue the parties a marriage certificate in accordance with s. 50 of the Marriage Act. However, I find that this is not in and of itself fatal to the validity of the marriage.
Of greater relevance is the wife’s reliance upon s. 48(3) of the Marriage Act. As the Sheikh was not authorised to solemnise the marriage in accordance with the provisions of the Marriage Act, I have examined and determined if either party to the marriage believed that he was then lawfully authorised to conduct the form and ceremony of the marriage. I find on the evidence the wife, clearly and firmly, believed that the Sheikh M, whom she had not earlier met, was empowered to perform the marriage ceremony and in this regard I have relied upon paragraph 26 of her first affidavit filed.
I accept her evidence that the husband had informed her that the Sheikh, whom he had arranged to marry them, had been educated and trained in the Islamic faith in Saudi Arabia. I accept that her friends within her local community had given their knowledge and approval as to the qualifications of the Sheikh, though clearly that was somewhat contradicted by the evidence of Sheikh M who confirmed that this was in fact his first local marriage ceremony.
The standard to be considered by the Court and the test to be applied is whether “either party to the marriage … believed that the marriage celebrant was lawfully authorised to solemnise it” and in those circumstances “the form and ceremony of the marriage shall be deemed to have been sufficient if it were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other”.
I conclude, upon an application of the Marriage Act and the facts in this case, that the wife, and perhaps the husband, but in any event certainly the wife had good grounds for her reasonable belief that the marriage celebrant was lawfully authorised to solemnise her marriage of March 2000.
I find that the wife intended and believed that she had entered into a marriage with the husband that was to be a lawful and valid marriage under Islamic traditional custom and law but performed by a religious celebrant who was so authorised. She accepted all of the arrangements of the husband and herself made no inquiries of the celebrant or in respect of the ceremony. I accept that her understanding and belief was genuinely to marry and to remain living with the husband and thereafter to have children of their marriage. I specifically reject the written submission on behalf of the husband that the intention of the parties was only to have a marriage that is recognised for Islamic purposes. I further reject the submission that the wife was fully aware that the Sheikh was not so authorised to perform a ceremony pursuant to the requirements of the Marriage Act.
I do not accept the husband’s evidence that he, at the time of the marriage ceremony, then knew and understood and distinguished between the parties’ religious marriage and civil marriage. There is no contemporaneous evidence to support this assertion and the Sheikh’s evidence was that he did not discuss an Australian civil marriage with either the husband or wife. Although the husband cited the absence of a marriage certificate, rings, celebration, guests or gifts as evidence of the parties’ lack of intention to lawfully wed one another, I find that this is as a result of the parties’ limited financial resources rather than any lack of intention to be lawfully married.
I conclude that the wife genuinely believed the Sheikh was lawfully authorised to solemnize the marriage and that the intent, form and ceremony of the marriage was sufficient to show a firm intention on the part of the husband and wife to become the lawfully wedded spouse of the other.
I now turn to consider the common law presumption of marriage as this was a matter raised both within the trial and in the wife’s written submissions.

PRESUMPTION OF MARRIAGE

A presumption of marriage exists at common law that where parties participate in a marriage ceremony and thereafter cohabitate, the formal requirements to validate the marriage are presumed to exist in the absence of “clear and cogent” evidence to the contrary: Jacombe and Jacombe (1961) 105 CLR 355.
In Jacombe (supra) it was accepted that the parties went through a ceremony of marriage in Jerusalem according to the rights and ceremonies of the Church of England. The Court (Dixon CJ, Fallagar and Menzies JJ said (p 359):
“…in the circumstances it is desirable to express our agreement with the judges of the Full Court who dealt with the matter that proof of the ceremony of marriage at Jerusalem followed by seventeen years’ [sic] cohabitation as man and wife raised so strong a presumption of the validity of the marriage between the parties that it prevailed over such evidence as there was to the contrary.
This is a case where the performance of the marriage ceremony was followed by the parties living together as man and wife for seventeen years. The performance of a marriage ceremony itself raises a presumption of the validity of the marriage and upon this point it is not necessary to do more than cite from the judgment of the present Chief Justice in Axon v. Axon (1937) 59 CLR 395 at pp 403, 404: ‘Upon proof that a marriage ceremony had been duly performed between herself and the respondent a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. 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, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony’. 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. (1961) 1WLR 9) 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”.
In Sheludko v Sheludko [1972] VR 82, Crockett J had before him a case where the wife sought a dissolution of marriage and the husband asserted that at no time were they lawfully married but merely had lived together as man and wife. His Honour observed at 84:
“The petitioner does not, it appears to me, have to rely merely on the question of who is to be believed between her and the respondent by recourse either to credibility or probabilities in relation to the question of whether there was a marriage. Even if (contrary to the finding of fact made by me) I were left by the evidence in a state of indecision as to whether she went through a form of marriage ceremony, the lengthy period of cohabitation during which the parties lived and were known as man and wife entitles the petitioner, in my view, in law to rely upon a presumption that they are husband and wife.”
His Honour continued and said at 85:
“…in a period of cohabitation as long as that, with a reputation of being married persons, existing for such a period, in such circumstances, in many different communities, with the respondent’s constant assertion of his being a married man, it would require, in my view, the strongest evidence of the greatest cogency on the part of the respondent to rebut the presumption of a valid marriage which in my view, in law exists”.
In Re Taylor (deceased); Taylor v Taylor and Another [1961] 1 All ER 55 there was no evidence before the Court of a marriage certificate or of a marriage ceremony from any independent person. A number of witnesses however gave evidence that the couple had lived together as man and wife and evidence of an oral declaration of marriage. In the principle Judgment of the Court, Lord Evershed M.R. cited Re Shephard, George v Thyer [1904] CH 456 where the Court said:
“…where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage…”
Lord Evershed M.R. then said at page 57-58:
“In spite, however, of the fact that the language I have referred to in Piers v. Piers was applied to a case different in an essential respect from the present case, I think that it is nonetheless true that during the century and more that has followed, something like a similar principle seems to have been adopted and treated as applicable in a case where, as here, the question, aye or no, were two people married, turns on evidence of cohabitation and reputation in the absence of any evidence of a ceremony. I have said that the principle has been applied in some degree, and for the purposes of stating what I now conceive the law to be in a case such as the present I will take a phrase cited by Kekewich J., in In re Shephard, George v Thyer, a case to which much reference was made in the argument but which in my judgment does not on the facts provide any very safe guidance for the present case. In In re Shephard Kekewich J., after referring to a Privy Council case, Sastry Velaider Aronegary v. Sembecutty Vaigalie, quoted the language used in that case by Sir Barnes Peacock:
‘It appears from the authorities which he’ (Dr. Phillimore) cited that, according to Roman-Dutch law, there was a presumption in favour of marriage rather than that of concubinage. It does not, therefore, appear to their Lordships that the law of Ceylon is different from that which prevails in this country; namely (and this is the essential sentence) that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.’
I take that passage as a statement of the law which ought to be applied in a case like the present.
In Lester v Lester [2007] FamCA 186 the Full Court adopted the above cited paragraphs as supporting the 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 only be rebutted with clear evidence showing the parties had not married.
I was also referred, in written submissions, to the decision of Nygh J in Lengyel and Rasad (1990) FLC 92-154 where His Honour held that a marriage ceremony conducted in Indonesia according to Islamic law, which was not registered under Indonesian law, was a void marriage and therefore within the Court’s jurisdiction due to Section 71 of the Act.
In W and T [1998] FamCA 49 the Full Court (Fogarty, Baker and Lindenmayer JJ) upheld the trial judge’s decision that the parties were married in circumstances where the marriage celebrant was not authorised to perform the ceremony but nevertheless conducted it in the presence of another authorised pastor.
In Kousal and Tack [2002] FamCA 1152, the Full Court (Nicholson CJ, Kay and Monteith JJ), upheld a decision that the parties were married in Czechoslovakia in 1949. Of particular relevance were the facts that the parties had lived together as husband and wife for many years and had held themselves out as man and wife, including when each of their children were born.
More recently, in Wold and Kleppir [2009] FamCA 178, Barry J declared the validity of a marriage conducted by an Imam, an authorised marriage celebrant, according to the Islamic religion at the respondent’s parent’s home, despite the fact that no notice was given pursuant to the Marriage Act nor was a marriage certificate issued.
The respondent had argued that he was mistaken as to the nature of the ceremony and that the marriage was potentially polygamous. He further relied upon there being no exchange of a kiss, no gifts, no signing of a special book or family celebration as evidence that no marriage ceremony was conducted. In rejecting the respondent’s submissions, His Honour relied upon the evidence of the Imam as to the nature of the “Nikah” ceremony he performed as well as the Islamic certificate issued by the Imam which contained the respondent’s handwriting.

CONCLUSIONS ON THE EVIDENCE:

There is clear evidence before the Court that the parties participated in a marriage ceremony, notwithstanding the dispute as to the nature of the ceremony itself. However, as the High Court said in Jacombe (supra) “the performance of a marriage ceremony itself raises a presumption of the validity of the marriage”.
This case does not have the strong evidence that existed in Taylor (supra) where there were six witnesses with statements before the Court as to the cohabitation of the couple. I contrast such independent witnesses with the agreement of the husband to the facts in this case that the parties did cohabit, albeit with two periods of separation, from the date of that marriage ceremony until 2008. The primary evidence that I accept is that there are four children born of the marriage during periods of cohabitation. The husband and wife, and their children were a family and were held in that regard by the community.
In my discussions with Counsel I asked whether there were other members of the Somali community who would or could be called to give evidence as to the reputation of the family and their acceptance as a married couple within that community. I was advised that it was very difficult for the wife, in her role as a woman, within that society to have her friends and members of a close knit community give evidence against the husband. I do both understand and appreciate that issue and I have balanced that fact in my conclusions.
I have accepted the evidence of the wife wherein she asserted that her local community regarded her and her husband as a couple and married in accordance with the strict and proper culture and tradition of their faith and community standards. Indeed, the husband agreed that the parties were regarded as a married couple within their community. I find that the parties held themselves out to all of the Somali community as a married couple and with each of their children as a family. That was accepted and respected by the community.
The onus was on the husband to present “clear and cogent” evidence to the Court to rebut the common law presumption that the parties were married. Despite the fact that I had raised the presumption issue with the parties at Court, the husband’s written submissions did not specifically address this issue and most certainly did not rebut the presumption. Whilst there may have been a lack of gifts, rings or celebration, these factors alone cannot rebut the presumption of marriage.

I conclude therefore that the common law presumption of marriage has not been rebutted on the facts in evidence before the Court. It is therefore proper to conclude that they live together as a consequence of a valid marriage.
I conclude therefore that it is proper and just to declare that the parties were validly married in March 2000.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: