Parsa & Hamidi
[2023] FedCFamC1F 8
Federal Circuit and Family Court of Australia
(DIVISION 1)
Parsa & Hamidi [2023] FedCFamC1F 8
File number(s): PAC 948 of 2022 Judgment of: RIETHMULLER J Date of judgment: 17 January 2023 Catchwords: FAMILY LAW – DIVORCE – Nullity – Where decree of nullity is sought – Where the applicant argues she was mistaken as to the nature of the ceremony performed, believing the religious ceremony performed was an Islamic betrothal (engagement) – Marriage Certificate issued and Notice of Intention to Marry completed on same day – Marriage not registered in accordance with State law – Parties never cohabitated or otherwise acted as husband and wife – Declaration of nullity made – Reasons to be forwarded to the Attorney-General’s Department Legislation: Evidence Act 1995 (Cth) ss 183, 185
Family Law Act 1975 (Cth) ss 50, 113
Marriage Act 1961 (Cth) ss 6, 23B, 42, 45, 48, 50, 64, 67
Births, Deaths and Marriages Registration Act 1995 (NSW) ss 4, 33, 49
Cases cited: AK v NC (2004) FLC 93-178; [2003] FamCA 1006
AS & AS [1999] FamCA 1131
Ford v Stier [1895] UKLawRpPro 36; [1896] P 1
Garner & Lee [2011] FamCA 1000
Gregg v R [2020] NSWCCA 245
Kelly (orse Hyams) v Kelly (1932) 49 TLR 99
Mehta (orse Kohn) v Mehta [1945] 2 All ER 690
Najjarin v Houlayce (1991) FLC 92-246; [1991] FamCA 57
Ngo & Ngo [2010] FamCA 1053
Oliver (Deceased) & Oliver [2014] FamCA 57
Rabab & Rashad [2009] FamCA 69
Valier v Valier (orse Davis) (1925) 133 LT 830
Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 15 November 2022 Place: Parramatta Solicitor for the Applicant: Oncu Lawyers Pty Ltd The Respondent: Litigant in person (did not participate) ORDERS
PAC 948 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARSA
Applicant
AND: MR HAMIDI
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
17 JANUARY 2023
THE COURT DECREES THAT:
1.The purported marriage between the parties entered into on 26 October 2019 is a nullity.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsa & Hamidi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
This is an application for a declaration that the marriage between the applicant and respondent which took place in 2019 is invalid and therefore a nullity under Australian law.
Background
The parties met in late 2019, and a few weeks later they participated in a religious ceremony at the applicant’s residence where an Imam of the Islamic faith married the parties. The applicant believed the religious ceremony performed was an Islamic marriage ceremony akin to an engagement and would not be considered a legal marriage in Australia.
The parties separated on 31 January 2020 and have not had contact since that time. The applicant has since re-partnered.
The applicant filed her Application for Final Orders on 25 February 2022. On that same day, the application was administratively transferred by a registrar to Division 1 of this Court without hearing from the applicant or respondent, but personal service was unable to be effected upon the respondent. The application was listed before a registrar on 8 April 2022 where orders were made adjourning the matter as the applicant sought leave to issue subpoenas in an attempt to locate the respondent for the purpose of effecting service. Despite this order, no subpoena was issued by the applicant’s solicitors.
On 1 September 2022 (the day before the next court event), the applicant filed an Application in a Proceeding seeking orders for substituted service. On 2 September 2022, a registrar directed that the applicant serve the Application for Final Orders and supporting affidavit filed 25 February 2022 on the respondent by forwarding them together with the Court orders made 8 April 2022 and 2 September 2022 to the respondent by email, and that a copy of the Court’s orders be forwarded to the respondent on WhatsApp and by text message.
The substituted service orders made 2 September 2022 do not include any email or telephone numbers, however only one email address and one telephone number are referred to in the affidavit of the applicant’s solicitor filed 1 September 2022. These contact details were obtained by the solicitor of the applicant by telephoning a person said to be the respondent’s sister. There is no evidence as to how the solicitor came to know of the sister’s telephone number or her identity. The solicitor attested to having attended at the last known address of the respondent on a number of occasions and having left the documents at the home. Presumably some oral evidence was given before the registrar to satisfy the registrar of the identity of the person who provided the information, and that it accorded with contact details the applicant must have had from her relationship with the respondent in order to satisfy the registrar.
On 15 November 2022, the applicant filed an affidavit of service annexing a copy of an email sent to the respondent by the applicant’s lawyers on 30 September 2022 at the email address set out in the affidavit filed 1 September 2022. The email attached a copy of the Application for Final Orders, the supporting affidavit filed 25 February 2022, and previous Court orders. Further annexed to the affidavit of service filed 15 November 2022 was a screenshot of a message sent to the respondent via WhatsApp, attaching a letter from the applicant’s lawyers. The screenshot indicated that this message had been “seen” by the respondent.
As the substituted service order made 2 September 2022 has been complied with, the respondent is taken to have been served with the Application for Final Orders filed 25 February 2022.
Despite service being effected in accordance with the orders made 2 September 2022, the respondent has not filed any material nor entered an appearance and there was no appearance by or on behalf of the respondent at the nullity hearing on 15 November 2022.
The applicant relies upon her affidavit filed 25 February 2022 in support of her nullity application.
On the applicant’s evidence, she and the respondent met in late 2019 and after a couple of weeks, agreed to be in a relationship. The respondent told the applicant that their relationship must be approved and blessed by “a Sheikh” (as the Celebrant described himself as an Imam in the Certificate that was issued I will refer to him as an Imam), otherwise they would be acting in sin by continuing to see each other. The applicant agreed to participate in the ceremony on the understanding it would be “like an engagement”: see applicant’s affidavit filed 25 February 2022, paragraph 4.
In late 2021, an Imam attended the home of the applicant in Suburb B along with the respondent. The Imam recited religious Islamic texts and prayers and told the parties, “you are now married and can freely spend time with each other”: see applicant’s affidavit filed 25 February 2022, paragraph 5.
The Imam issued the parties with a “Certificate of Islamic Marriage” (“the Certificate”), certifying that he duly solemnised the marriage of the parties in accordance with the teachings of Islam and Sunnah of the Prophet Muhammad PBUH: see applicant’s affidavit filed 25 February 2022, annexure “A”. The Certificate is signed by each of the parties, two witnesses, the “celebrant” and a “wali (guardian)”. The applicant says that the respondent assured her the ceremony was an Islamic marriage that allowed the parties to continue their relationship, was like an “engagement”, and was not a marriage under Australian law.
The applicant alleges that the parties lived apart during the course of their relationship and were not sexually intimate. The parties separated on 31 January 2020 following an argument.
The applicant now seeks to marry her current partner. The applicant attended upon a marriage celebrant who performs Islamic and civil marriages who was concerned that she cannot be married to her current partner if she is still married to the respondent. The applicant maintains that she is not legally married to the respondent, but says that the celebrant will not marry her and her new partner until she obtains a decree of nullity from this Court. The celebrant appears to be acting with appropriate caution in the circumstances. The applicant states that in Islam, women cannot initiative divorce, however such principle (if correct within the tenets of her religion) would only apply to religious divorces in Australia and not civil law marriage and divorce.
After the parties decided to be in a relationship, the applicant outlines in her affidavit that the respondent said to her:
My family and I am of the view that you and I seeing each other prior to our relationship being recognised by an Islamic Sheikh is an act of sin. We must go before a Sheikh and ask for his blessing and approval of our relationship before Islam. It will be like an Islamic Engagement.
(Applicant’s affidavit filed 25 February 2022, paragraph 4)
The applicant says that the Imam performed the ceremony in her home and at the end of the ceremony that the Imam said that they were married. The applicant does not suggest that the Imam used a language that she did not understand during the ceremony, nor does she suggest that she does not understand English (her affidavit is sworn without an interpreter), or claim that her understanding of English was limited in relevant respects. The applicant does not address why she signed the certificate of marriage following the ceremony (together with the celebrant, two witnesses, a “wali (guardian)”, and the “bridegroom” (the respondent) in the following terms:
Certificate of Islamic Marriage
I, CELEBRANT & [Mr D],
hereby certify that I have this day at
[C Street, Suburb B]
duly solemnised marriage in accordance to the teachings of Islam and Sunnah of the Prophet Muhammad PBUH
between [MR HAMIDI]
and [MS PARSA]
in the presence of the undersigned witnesses.
(Applicant’s affidavit filed 25 February 2022, annexure “A”)
Pursuant to s 45(1) of the Marriage Act, a marriage may be solemnised in any form recognised as sufficient for the religion of the Imam, and s 45(3) provides that a marriage certificate (see s 50) is “is conclusive evidence that the marriage was solemnised in accordance with this section”.
After the Imam left, the applicant recounts:
7. Next, after the Sheikh left, I asked the Respondent [Mr Hamidi], “You told me it was going to be an engagement and the Sheikh said we are now married and the certificate he gave us also says that we are married”.
The Respondent [Mr Hamidi] said, “This is Islamic Marriage allowing us to see each other. It is not registered with the Australia Government Authorities. So, it is like engagement”.
(Applicant’s affidavit filed 25 February 2022)
Despite the applicant having been in contact with the Imam who performed the ceremony, there is no evidence from the Imam as to the nature of the ceremony performed, nor as to the religious significance of the ceremony. Nor is there any evidence from anyone familiar with the relevant form of Islam addressing the religious and cultural practices that would provide greater context to this apparent marriage.
In the affidavit of the applicant’s solicitor filed 1 September 2022 (which provided much detail about difficulties with respect to service) the applicant’s solicitor says that they had been in contact with the Imam who performed the marriage ceremony in 2019 “for sometime”, and had obtained a copy of the “Notice of Intended Marriage Form” (“the Notice”) from the Imam by text message. No details of the communication are set out, however the Notice is attached to show the address of the respondent. The Notice is the form required under the Marriage Act 1961 (Cth) (“the Marriage Act”). It has been completed in typewritten format with all of the personal details of the parties, and appears to be signed with inked signatures. As the applicant’s solicitor points out in the affidavit filed 1 September 2022, the Notice is dated the same day of the marriage, demonstrating that it was not given at least one month prior to the marriage as required by s 42(1)(a) of the Marriage Act. In her material, the applicant does not address signing the Notice, when it was signed (importantly whether it was before or after the ceremony), nor what she thought was the purpose or effect of the Notice.
In this case the applicant’s occupation (that of a public servant), together with her age (29 years at the time of the ceremony) and relationship experience (she has previously married and divorced), tell against a conclusion that she approached the situation naïvely.
Registration of marriage
In the applicant’s affidavit filed 25 February 2022, the applicant annexes a certificate issued by the NSW Registry of Births, Deaths and Marriages on 21 December 2021 confirming that no marriage registration was found concerning the applicant in their records on this date.
Section 49(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (“BDMRA”) provides for the registrar to issue certificates, as follows:
49 Issue of certificate
(1) On completing a search of the Register, the Registrar may issue a certificate--
(a) certifying particulars contained in an entry, or
(b)certifying that no entry was located in the Register about the relevant registrable event.
(2) A certificate under subsection (1)(a) is admissible in legal proceedings as evidence of--
(a) the entry to which the certificate relates, and
(b) the facts recorded in the entry.
A relevant registrable event includes a marriage: see s 4 of the BDMRA. As set out above, s 49(2) of the BDMRA provides that a certificate issued under s 49(1)(a) is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry. The certificate issued by the NSW Registry of Births, Deaths and Marriages provided by the applicant states:
I hereby certify that a search has been made in the Records of Marriage held by me from 30 July 2014 to 20 December 2021 inclusive for [Ms Parsa] who was born [in] 1990 and no marriage registration occurring in New South Wales has been found.
(Applicant’s affidavit filed 25 February 2022, annexure “B”)
As there is no entry to which the certificate relates (it merely certifies that no entry has been found), it does not appear to be admissible pursuant to s 49(2) of the BDMRA as this sub-section is limited to certificates pursuant to s 49(1)(a), although this is curious given that s 49(1)(b) of the BDMRA provides for such a certificate to be issued. In this respect the section can be contrasted with s 64 of the Marriage Act which provides for the admissibility of certificates confirming that there are no entries in a register.
Section 185 of the Evidence Act 1995 (Cth) (“the Evidence Act”) requires that full faith and credit be given to records of State authorities. Evidence of the absence of a record in the State office would ordinarily require an officer to be a witness (as the certificate is, in this respect, documentary hearsay and no notice has been provided to the respondent pursuant to s 67 of the Evidence Act). However, resort may be had to s 183 of the Evidence Act which provides that:
183 Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:
(a)examine the document or thing; and
(b)draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
In Gregg v R [2020] NSWCCA 245, the NSW Court of Criminal Appeal concluded at [368] that “there is no reason in principle that to the extent necessary, the authenticity of a document cannot be determined from the terms of the document itself”.
In this case, upon examining the document, I am prepared to draw the inference that the certificate issues by the NSW Registry of Births, Deaths and Marriages is authentic given its appearance and the evidence as to its provenance, and to draw the inference that there is no record of a marriage registration occurring in the State of New South Wales with respect to the applicant. As a result, I am persuaded to accept the certificate issued by the NSW Registry of Births, Deaths and Marriages as evidence that the marriage of the parties was not registered under the State Act.
Section 113 of the Family Law Act 1975 (Cth) (“the Family Law Act”) permits the Court to make a declaration in relation to the nullity or validity of a marriage. Section 50 of the Family Law Act provides that an application for a decree of nullity shall only be based on the ground that the marriage is void. Section 23B of the Marriage Act sets out the grounds on which marriages are void.
Section 33 of the BDMRA states that if a marriage is solemnised in the State in accordance with law, the marriage must be registered under the same Act. However, a marriage is not invalid under the Marriage Act as a result of a failure to comply with the State act requiring registration: see s 6 of the Marriage Act.
Thus, the relevance of the fact that the marriage has not been registered is that it goes to the Imam’s understanding of the mature of the ceremony. That is, that the ceremony was not intended to be a marriage within the meaning of the Marriage Act.
Consent to marriage
Section 23B(1) of the Marriage Act provides that a marriage is void where:
Grounds on which marriages are void
…
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d)the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
Section 48 of the Marriage Act states that a marriage solemnised otherwise than in accordance with Part IV, Division 2 of the Marriage Act is not a valid marriage, save for a number of exceptions listed in that section. The list of exceptions is broad, including, where the celebrant was not in fact an authorised celebrant under the Marriage Act, if one of the parties believed that they were so authorised and the parties intended to become wedded spouses: see s 48(3) of the Marriage Act. Whilst there may have been considerable non-compliance with Part IV Division 2 of the Marriage Act in this case, and a failure to register the alleged marriage pursuant to State legislation (the BDMRA), none of those issues appears likely to result in the alleged marriage being invalid.
In the present proceedings, the basis of invalidity alleged by the applicant is that she did not provide a “real consent” to the marriage: see s 23B(1)(d) of the Marriage Act. To establish a ground for a decree of nullity under section 23B(1)(d) of the Marriage Act, the onus is on the applicant to prove that she did not consent to marry for one of the reasons stated: see AK v NC (2004) FLC 93-178 at 79,034. The nature of the marriage ceremony itself raises a presumption of regularity, and it is for the applicant to establish otherwise: see Oliver (Deceased) & Oliver [2014] FamCA 57 at [203]–[204].
In the present case the applicant says that if the ceremony was that of a marriage then she did not understand its nature and effect. A simple example of a case squarely within this rubric is Mehta (orse Kohn) v Mehta [1945] 2 All ER 690 where the applicant believed that she was participating in a ceremony to become a Hindu (for the purpose of enabling her to later marry her friend). She did not speak Hindu and was unaware that she had participated in a marriage ceremony. Similar cases involving ceremonies in languages not spoken by the applicant have been considered in Australia, resulting in findings that a valid marriage does not ensue: see Garner & Lee [2011] FamCA 1000 and Ngo & Ngo [2010] FamCA 1053. However, the applicant in this case gives no evidence of any difficulties understanding what the Imam said in the ceremony.
There have also been cases involving ceremonies that were thought to be “betrothal ceremonies” but which were performed as marriages, for example:
(a)In Ford v Stier [1895] UKLawRpPro 36, a 17 year old girl was pressed to participate in a ceremony she believed to be one of betrothal (becoming engaged to marry) and not a marriage. The trial judge found it to be “remarkable that a person of any education should have thought such a thing” (at 5), but accepted the young applicant’s evidence, although the trial judge also found that duress had been made out.
(b)Valier v Valier (orse Davis) (1925) 133 LT 830 concerned a marriage between an English woman and an Italian man who had come to England and was working in a garage. The wife took him to a registry office and effected a marriage. Lord Merrivale P concluded (at 832) that “the petitioner did not know that he was going to be married, and I am satisfied that when he came away from the ceremony he was bewildered and did not know until the evening the effect of what had happened”. Interestingly, Lord Merrivale P recounted that in Italy (at that time) there were “two stages in contracting marriage; the first, what in old times would have been called a ‘solemn espousal’ – an exchange of promises which does not effect a marriage”.
(c)In Kelly (orse Hyams) v Kelly (1932) 49 TLR 99, on an undefended petition, Lord Merrivale P considered another case similar to Valier v Valier (orse Davis) (1925) 133 LT 830. The case concerned a young Jewish couple and Lord Merrivale concluded that the applicant had understood the effect of the ceremony to be “the effect of the ceremony of betrothal among Jews or of the preliminary contract before marriage”. Relying upon the lack of conjugal relations after the ceremony “coupled with the facts of their Jewish origin and racial community”, the Court concluded that the petitioner “was not aware that it was a ceremony which would make her and the respondent man and wife”.
(d)In Najjarin v Houlayce (1991) FLC 92-246, Nygh J considered a case concerning a Muslim couple with similar facts to the present proceedings, concluding that there was a mistake as to the nature of the ceremony and granted a decree of nullity. In the judgment, Nygh J notes (at 78,670) that:
As I stated in my earlier decision in In the Marriage of N Osman and O Mourrali (1989) 13 Fam LR 444 at 444, Muslim law distinguishes between a ceremony which is known as the “kitab” which is the marriage contract and might be comparable to what in Christian practice would be regarded as betrothal, and the formal public acknowledgement of the marriage at a feast known as the “erais”, held at some later stage.
As I remarked in In the Marriage of N Osman and O Mourrali it appears to have been the practice of Muslim marriage celebrants to issue a certificate of marriage at the stage of the “kitab”, even though it appears to be more in the nature of betrothal than the actual marriage, but it is not necessary for the purpose of these proceedings, nor was it necessary for the purpose of In the Marriage of N Osman and O Mourrali, to come to any decision as to whether that practice is justified under Australian law or not.
(e)AS & AS [1999] FamCA 1131 also concerned a ceremony thought to be a Muslim “kitab” and not a marriage, although the Imam then issued a marriage certificate, which led to a decree of nullity in circumstances where the subsequent conduct of the parties, similar to that described in Kelly (orse Hyams) v Kelly (1932) 49 TLR 99, was not consistent with a marriage.
(f)In Rabab & Rashad [2009] FamCA 69, Mushin J, in circumstances similar to those discussed in Najjarin v Houlayce (1991) FLC 92-246, declared a marriage nullity.
The paucity of the evidence presented by the applicant in the present case makes it difficult to determine whether the ceremony was in fact a “kitab” as described in the above cases. The fact that at the time they signed a Notice of Intention to Marry which is required at least one month (and not more than 18 months) before a marriage within the meaning of the s 42(1)(a) of the Marriage Act, is consistent with such an approach.
The applicant does give some brief evidence to the effect that the parties never cohabitated, nor did they engage in sexual intimacy. Whilst marriages come in a wide variety of forms, this evidence points to the parties not having intended to enter into a lifelong marriage-like relationship at that point (as is noted in various decisions referred to above).
In the absence of any opposition from the respondent, I am ultimately persuaded that the applicant was mistaken as to the nature of the ceremony entered into by her and the respondent in October 2019. I therefore find that the marriage between the parties was a nullity and make a declaration accordingly.
No application was made for a costs order in this matter, neither against the respondent, nor against the Imam who issued the Marriage Certificate that caused these proceedings. As a result I make no orders for costs.
Issuing “Marriage Certificates” in the form used in this case is productive of much mischief in circumstances where a marriage (as defined in the Marriage Act) is not intended. Where religious or cultural ceremonies take place that are not intended to be marriages as defined in the Marriage Act, it would be far more appropriate to utilise the relevant religious or cultural term or the English word “betrothal” to ensure that the certificates which are issued are clear in their meaning. I note that this difficulty was identified in AS & AS [1999] FamCA 1131, and that His Honour directed that his judgment be referred to the Attorney General for this reason. For the same reasons, I direct the registrar to forward a copy of this judgment (together with copies of the Notice of Intention to Marry and the Marriage Certificate referred to in this judgment), and the reasons in AS & AS [1999] FamCA 1131 to the Marriage Law and Celebrants Section, Attorney-General’s Department, 3-5 National Circuit, Barton, ACT 2600.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 17 January 2023
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