Peters and Peters

[2018] FamCA 336

FAMILY COURT OF AUSTRALIA

PETERS & PETERS [2018] FamCA 336

FAMILY LAW – NULLITY – where the marriage was void because the applicant was lawfully married to another person – decree of nullity ordered.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth)s 23B

APPLICANT: Ms Peters

RESPONDENT: Mr Peters

FILE NUMBER: MLC 7182 of 2017

DATE DELIVERED: 27 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 27 April 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 51 of the Family Law Act 1975 (Cth), I pronounce a Decree of Nullity of the Marriage between Ms Peters and Mr Peters solemnised on … 1997 at B Town in the State of New South Wales on the ground that as at that date, the marriage was void because the applicant was lawfully married to another person.

2. That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7182 of 2017

Ms Peters

Applicant

And

Mr Peters

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court by way of an Initiating Application filed on 19 January 2018, the applicant being Ms Peters.  In that application, she seeks a decree of nullity in respect of her marriage to the respondent, Mr Peters.  That application is supported by an affidavit of the applicant filed 19 January 2018. 

2. The matter originally came before the Court in a Judicial Duty List on 10 April 2018.  That day, the application was adjourned for hearing before me to this day.  The applicant appears before me in person seeking orders in the terms of her Initiating Application. 

3. There is no appearance by or on behalf of the respondent. 

4. The applicant relies upon an Affidavit of Service sworn by her solicitor, Mr C, filed 7 March 2018.  That affidavit confirms that the respondent was served with the Initiating Application and the applicant’s affidavit by hand on 26 February 2018.  Further, the applicant relies upon the Acknowledgement of Service signed by the respondent, in which he acknowledged receipt of the Initiating Application and affidavit in support. 

5. I note the submission made this day by the applicant that at the time of service of the documents the respondent communicated to her solicitor his intention not to oppose the order that she seeks and, further, that he did not wish to participate in these proceedings.  The respondent’s Acknowledgement of Service is also filed on 7 March 2018.  

6. In circumstances where the respondent has filed no documents opposing the current application, has not sought to participate in the proceedings, and does not appear at Court, I am satisfied that the respondent has been afforded procedural fairness and that it is appropriate that the application proceed in his absence. 

7. Section 51 of the Family Law Act 1975 (Cth) provides that an application for a decree of nullity of a marriage should be based on the ground that the marriage is void. The onus is on the applicant to establish on the balance of probabilities that the marriage is void pursuant to one of the grounds set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”). Section 23B(1)(a) of the Marriage Act provides as follows:

   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 either of the parties is, at the time of the marriage, lawfully married to some other person.

8. That is the ground relied upon by the applicant in support of her application for a decree of nullity.  The circumstances relied upon by the applicant in support of her application, as set out in her affidavit filed 7 March 2018, are as follows. 

9. The applicant and the respondent married in mid-1997.  At the time of that marriage, the applicant erroneously believed that she was divorced from her previous husband, Mr D, whom she had married in 1977. 

10. The applicant deposes that she separated from her former husband, Mr D, at some time prior to 1983.  Following her separation from her former husband, the applicant deposes that she suffered mental illness and spent a period of time in hospital.  She believes her memory has been affected as a result of that illness.  At paragraph 7 of her affidavit, the applicant deposes that during a conversation with her previous husband in or about 1983, he informed her that he would arrange for the divorce.  The applicant assumed that her former husband had made such arrangements for the divorce, and therefore, at the time of her marriage to the respondent, she assumed that she had already been divorced from her former husband. 

11. The applicant only discovered that she had not been divorced from her former husband upon receipt of that information from her lawyer in or about August of 2016.  In support of her application, the applicant relies upon the certificate of marriage between she and Mr D, which confirms her marriage to Mr D in 1977.  The applicant has tendered a copy of that marriage certificate, which will be marked as Exhibit 1. 

12. She also relies upon the divorce order dated 1 December 2010, which confirms that an order for divorce was made in respect of her marriage to Mr D on 1 December 2010, the effect of that order being to end the marriage on 2 January 2011.  That divorce order will be marked as Exhibit 2. 

13. It is evident from the divorce order that at the time of her marriage to Mr Peters, the respondent in the proceedings, the applicant was still legally married to Mr D. 

14. Having regard to the evidence of the applicant, I am satisfied that at the time of her marriage to the respondent, which was solemnised in 1997, that the applicant was married to another person, Mr D.  Accordingly, I am satisfied that the marriage between the applicant and the respondent is void.  In the circumstances, I will pronounce a decree of nullity of the marriage between the applicant and the respondent.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 April 2018.

Associate: 

Date:  27 April 2018