Pennington & Mosley
[2023] FedCFamC1F 632
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pennington & Mosley [2023] FedCFamC1F 632
File number(s): SYC 8815 of 2022 Judgment of: ALTOBELLI J Date of judgment: 26 July 2023 Catchwords: FAMILY LAW – NULLITY – Where the parties underwent a civil ceremony in the United States – Where the parties held the belief the civil ceremony was not recognised in Australia – Where the parties underwent a subsequent marriage ceremony in Australia – Consideration on the prohibition of second marriage ceremonies – Consideration into the words “some other person” in s 23B(1)(a) of the Marriage Act 1961 (Cth) – Decree of nullity ordered. Legislation: Family Law Act1975 (Cth) ss 6, 51, 102
Marriage Act1961 (Cth) ss 23B, 88C, 88D, 94, 113
Crimes Act1900 (NSW) s 92
Cases cited: Wellard & Clapton [2020] FamCA 642
Yoon & Lau [2020] FamCA 281
Zau & Huang [2015] FamCA 873
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 26 July 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
SYC 8815 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PENNINGTON
Applicant
AND: MR MOSLEY
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
26 JULY 2023
THE COURT ORDERS THAT:
1.A decree of nullity is made in the marriage between the Applicant wife and the Respondent husband in 2016.
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 Pennington & Mosley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
INTRODUCTION
In the matter, I provide the following ex tempore reasons for judgment. I have made a decree of nullity of the marriage between the applicant wife (“the wife”) and the respondent husband (“the husband”) that was made in 2016 and I provide the following reasons for having done so.
BACKGROUND
The material before the Court consisted of the following documents. There was the application for nullity filed on 12 December 2022 by the wife and her affidavit of support filed on 12 December 2022. I made orders on 16 March 2023 requesting further evidence, and as a result of that order, the wife filed a further affidavit on 3 April 2023. On 9 January 2023, the husband filed a response in which he confirmed that he too was seeking a decree of nullity, and then on 8 March 2023, the husband filed a submitting notice submitting to the orders sought and not wishing to be heard on the question of costs. I note that, out of abundant caution, the wife, on 3 April 2023, filed an affidavit of service and on 14 March 2023 the husband filed an acknowledgment of service.
Both the wife and the husband attended before me by way of Microsoft Teams. They both represented themselves and gave sworn evidence. I find that in this case, the husband and the wife married at a wedding at Suburb C in Sydney in 2016. However, at that time, they had entered into a prior wedding in the United States in 2015. I mark as the Court’s Exhibit “C1” the Australian marriage certificate and the Court’s Exhibit “C2” the certificate of marriage registration, issued by the City B, Office of the City Clerk, relating to a ceremony of marriage that was performed in 2015.
The evidence before the Court is that the relationship between the husband and the wife has broken down. They both wish to dissolve the first marriage and appreciate the need to do so. However, they need a decree of nullity in relation to the second, that is, the Australian marriage. Also in evidence will be the following two documents, which were identified by the wife in evidence this morning. The first is a blank pro-forma form called Notice of Intended Marriage, which will become the Court’s Exhibit “C3”, and also another document, Declaration of No Legal Impediment to Marriage, that I will make the Court’s Exhibit “C4”. I note that these two forms are standard forms that are used in order to comply with the formal requirements for a marriage in Australia.
The Court observes that the marriage took place in 2016 and it is possible that the forms that were provided to the wife when the Court asked some questions, in fact, were forms that were promulgated after that date. The Court is satisfied that there is no significant difference insofar as the question that was put to the wife and answered by her. The wife agreed that she had signed forms to the effect of the documents in question and she believes that the husband had likewise done so.
When asked about, for example, the questions relating to conjugal status that appear on both forms, but specifically in relation to the Notice of Intended Marriage, she recalls that she ticked the box “never validly married” and believed that the husband had done so as well. She explained that when she ticked that box, she was conscious of the fact that there had been what she described as a civil union in another country, but she did not regard that as a marriage and did not think that that is the question that was asked of her at item 7 of the Notice of Intended Marriage. When asked whether she, or to her knowledge, the husband, had told the marriage celebrant about the existence of this prior ceremony, she explained that she had not, and to the best of her knowledge, the husband had not. When asked whether the marriage celebrant had asked whether there had been a previous marriage or ceremony, she explained that she did not recall if she was asked.
The Court observes that the certificate of marriage registration (Exhibit C2) clearly states that the parties were married as opposed to something else. Nonetheless, the Court accepts the evidence of the wife that she believed it was a civil union from another country and it was not a marriage as contemplated in the forms in question. I note that the husband likewise gave sworn evidence and he too confirmed the evidence given by the wife.
DISCUSSION
By way of summary, the Court is satisfied that when the parties married in 2016, they were in fact already married in the United States the previous year, 2015, but the Court concludes from their evidence they did not consider that previous ceremony to be one of marriage, notwithstanding that it clearly was.
I note that ss 88C and 88D of the Marriage Act 1961 (Cth) (“the Marriage Act”) state that an overseas marriage will be recognised as valid in Australia if it was valid under local law, and on that basis, it would seem that the United States marriage was clearly valid. Section 88G facilitates the proof of that local marriage, and then s 102 of the Family Law Act1975 (Cth) (“the Act”) further facilitates that proof by enabling the Court to receive the United States marriage certificate into evidence.
Section 51 of the Act states that an application for nullity must be based on the ground that a marriage is void. Section 23B of the Marriage Act sets out the grounds on which marriages are void as follows:
Grounds on which marriages are void
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(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.
(2) Marriages of parties within a prohibited relationship are marriages:
(a) between a person and an ancestor or descendant of the person; or
(b) between 2 siblings (whether of the whole blood or the half-blood).
(3) Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.
(4) Nothing in subsection (3) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that subsection had not been enacted.
(5) For the purposes of this section:
(a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and
(b) a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first-mentioned person has been adopted.
(6) For the purposes of this section:
"adopted" , in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
"ancestor" , in relation to a person, means any person from whom the first-mentioned person is descended including a parent of the first-mentioned person.
The relevant paragraph in this case is s 23B(1)(a) of the Marriage Act, which states that at the time of the marriage, either of the parties is lawfully married to some other person. I pause here to observe that the words used are, and I quote, “some other person” rather than “to each other”.
Section 113 of the Marriage Act prohibits second marriage ceremonies. However, as Berman J observed in Wellard & Clapton [2020] FamCA 642 (“Wellard & Clapton”), at [15], the Marriage Act then says nothing about the status of such a ceremony. The problem encountered by Berman J in that case is similar to the one encountered in the present case. Section 23B(1)(a) of the Marriage Act refers to “some other person” and does not on its face include the parties to the marriage themselves. His Honour says at [17]–[18]:
17.The obvious difficulty is that “some other person” may or may not include the parties.
18.Again, I consider logically such a marriage must also be void, even though it is not specifically referred to in s 23B. The issue was given some further consideration in the decision of Kapadia & Kapadia (1991) FLC 92-245. At 78,667, Kay J quotes Professor Dickey as follows:
“Logic must surely prevail. A second ceremony of marriage involving parties who are already lawfully married must be a nullity, despite the fact that the grounds of nullity in section 23B(1) purport to be exclusive. If these grounds really were exclusive, marriage between persons of the same sex would be valid, for there is no ground of nullity which covers this situation either. …”
I concur with Berman J.
I also refer to chapter 5.430 of Grant T Riethmuller, Family Law (Thomson Reuters, 7th edition, 2022) which discusses this issue as follows:
[5.430] Status of a second marriage ceremony in contravention of section 113(1)(a)
The general prohibition on second marriage ceremonies in s 113(1)(a) poses a problem. The relevant part of this section states that ‘Except in accordance with this section … persons who are already legally married to each other shall not … go through a form or ceremony of marriage with each other’. The Marriage Act 1961 says nothing, however, about the status of a second marriage ceremony in contravention of this provision. Logically any such marriage ceremony must be devoid of any legal effect and therefore a nullity, and the second marriage itself must therefore be void.224
Section 23B(1) makes no provision for the situation just described. Subsection (1)(a) declares a marriage to be void where ‘either of the parties is, at the time of the marriage, lawfully married to some other person’, but it says nothing about the effect of a marriage where both of the parties are already lawfully married to each other. Logically such a marriage must also be void, and this is so notwithstanding that it is not referred to in s 23B(1), and notwithstanding the apparently exclusive nature of the words ‘and not otherwise’ at the end of this subsection.225
224.See Amadasun v Amadasun [1992] 1 Fam LR (Eng) 585 at 586.
225.Wellard & Clapton [2020] FamCA 642; Duryodhana & Chawla [2018] FamCA 1089; Zau & Huang [2015] FamCA 873; Wright v Wright [2012] FamCA 216; Dinal & Tohim [2009] FamCA 540; Kapadia & Kapadia [1991] FamCA 121; (1991) FLC 92-245, 78,667. See [5.760] below re statutory limit on relief.
I further note the issue raised by the learned author at chapter 5.760:
[5.760] Is a decree of nullity restricted to statutory grounds of nullity?
The second difference between a decree of nullity and a declaration of the invalidity of a marriage is whether a decree of nullity is available where a marriage is not valid for reasons other than those listed in s 23B of the Marriage Act (and most often because it is a second marriage between the parties contrary to s 113 of the Marriage Act).
A nullity decree is sought in this case, and the combined effect of s 51 of the Act and s 23B of the Marriage Act is that such a decree can only be made when the marriage is void – in this case, under s 23B(1)(a) of the Marriage Act. But if, technically, s 23B(1)(a) does not apply for the reasons that are articulated in the paragraphs set out above, the question is, could the marriage still be declared invalid. In the second paragraph to chapter 5.760, the learned author states:
…
In In the Marriage of Kapadia,336 Kay J intimated that a decree of nullity of marriage can be granted only where there is a relevant statutory ground of nullity, and that in any other circumstance a declaration of invalidity of marriage is the sole form of relief available.337 Similarly, in Nien & Vo, Hogan J held that a decree of nullity was not the appropriate order where a marriage was not valid for reasons other than s 23B.338 However, in Zau, Berman J said that the words ‘and not otherwise’ appearing in s 23B should be ‘interpreted broadly, and not literally.’339 In Fatisi, the Court concluded that the terms ‘void’ and ‘invalid’ are interchangeable.340 It therefore remains unsettled as to whether a decree of nullity remains available in circumstances where a marriage is not valid for reasons other than those listed in s 23B of the Marriage Act.
336.In the Marriage of Kapadia [1991] FamCA 121; (1991) 103 FLR 470.
337.See In the Marriage of Kapadia [1991] FamCA 121; (1991) 103 FLR 470 at 472-474.
338.Nien & Vo [2015] FamCA 142, [2].
339.Zau & Huang [2015] FamCA 873.
340.Fatisi & Hasila [2020] FamCA 209, [31]-[33].
For my part, I follow and adopt the reasoning of Berman J in Zau & Huang [2015] FamCA 873, cited in the above paragraph, and in Wellard& Clapton. I note that this was adopted by Johns J in Yoon & Lau [2020] FamCA 281. Her Honour noted there that if a second marriage is prohibited under s113(1)(a) of the Marriage Act, there is a strong legislative indication of formal invalidity of this marriage, and thus an inference that the Marriage Act is the appropriate remedy, also, that voidness is equivalent to invalidity.
There is uncertainty about the meaning of the words in s 23B(1)(a) of the Marriage Act insofar as it refers to “lawfully married to some other person” and whether that includes the parties at the time of the marriage also referred to in paragraph (1)(a). The uncertainty is best resolved by legislative amendment.
In the absence of the application of a common-sense and purposive interpretation to s 23B(1)(a) of the Marriage Act, an unfortunate consequence would arise. The grounds for nullity are set quite high, possibly as a matter of public policy. Divorce is relatively easy to obtain, but only if a marriage is valid. In this case, if the declaration sought is not granted, the wife and the husband would need to get both of their marriages dissolved, not just one. This is an unusual, if not an absurd, situation, itself indicative that the purpose of s 23B(1) of the Marriage Act could not have been to prevent a nullity decree in this case. How, then, should the words “some other person” in s 23B(1)(a) be interpreted in a common-sense and purposive manner.
Justice John Middleon, “Statutory Interpretation: Mostly Common Sense?” (2016) 40 Melbourne University Law Review 626 discusses various aspects of statutory interpretation, including how the principles have been adopted and applied by the Courts to interpret legislation, and how those principles have developed over many years. He states:
The principles of statutory construction should not become too prescriptive, and in the main, common sense should prevail in interpreting any statute.
The Court acknowledges, however, that that does not mean that principles of statutory interpretation are no more than rules of common-sense. The Court accepts that common-sense cannot become an unanalysed, dogmatic truth, which is evasive and uncertain of meaning and potentially conceals both conscious and unconscious biases. However, interpretation principles reflect a plain and practical common-sense.
An insight into a common-sense and purposive interpretation of the section in question may be gleaned by reference to issues of criminality. For example, s 92 of the Crimes Act1900 (NSW) criminalises the offence of bigamy as follows:
92 Bigamy
Whosoever, being married, marries another person during the life of the former spouse (including husband or wife), shall be liable to imprisonment for seven years—
Provided that no person shall be convicted under this section whose spouse (including husband or wife) has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused.
Section 94(1) of the Marriage Act states that:
(1)A person who is married shall not go through a form or ceremony of marriage with any person.
A penalty of imprisonment for five years is prescribed. The Court notes that subsection 94(1A) of the Marriage Act refers to strict liability applying to:
…the physical element of circumstance, that the person was married when the form or ceremony took place.
An absurd result would be that the wife and the husband, even though married to each other, are prima facie guilty of bigamy and are liable to be imprisoned. That s 94 of the Marriage Act would create such a situation is of relevance in this case.
Section 94 of the Marriage Act uses the words “marriage with any person”. Section 23B(1)(a) of the Marriage Act uses the words “married to some other person”. This Court believes that it is not a common-sense interpretation of “any person” in s 94(1) to include the “same person”, that is, that a couple who purported to enter into two marriages is committing bigamy. Logically, it is not a common-sense interpretation of “other person” to include the same person, that is, the parties to the marriage for the purposes of s 23B(1)(a) of the Marriage Act. It is my view that the literal interpretation of the words referred to above in ss 94(1) and 23B(1)(a) of the Marriage Act cannot possibly reflect the purpose of the legislation and the sections in question.
I further doubt that s 23B(1)(a) of the Marriage Act has its literal meaning, that is, that “some other person” excludes the parties to the marriage themselves, because of some underlying policy considerations in the Act.
Section 51 of the Act is a fundamental empowering provision for this Court, and whilst it necessarily relies on the Marriage Act, the context of s 51 cannot be ignored. It is part of a much broader statutory scheme that regulates aspects of a broad range of relationships. Thus, the Act recognises and regulates aspects of a broad range of relationships, including married heterosexual, married same-sex, and unmarried relationships.
Moreover, the Act recognises and regulates relationships that are not necessarily exclusive in the sense that parties before the Court may be, and indeed frequently are, in multiple simultaneous relationships. Section 6 of the Act even recognises polygamous marriages in certain circumstances. Yet it is curious that the Marriage Act would explicitly condemn, indeed criminalises, this particular marriage. One academic author has observed that the bigamy offence in s 94 of the Marriage Act creates an anomaly when read in conjunction with other provisions of the Act, including those referred to above, recognising and regulating aspects of a broad range of relationships (Theodore Bennett, “Why the Bigamy Offence Should be Repealed” (2019) 41(3) Sydney Law Review 359).
It is avoiding that policy anomaly that also justifies a common-sense and purposive approach to interpreting the words “some other person” in s 23B(1)(a) of the Marriage Act to exclude the parties to the marriage themselves.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 26 July 2023
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