Rabab & Rashad - [2009] FamCA 69

FAMILY COURT OF AUSTRALIA

RABAB & RASHAD

[2009] FamCA 69

FAMILY LAW – NULLITY – Whether marriage invalid pursuant to s 23B of the Marriage Act 1961 – Whether mistake as to the nature of the ceremony – Where both parties believed they were engaged in a ceremony of commitment in accordance with Islamic custom rather than entering into marriage – Najjarin v Houlayce (1991) FLC 92-246 applied

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

AS and AS [1999] FamCA 1131
Najjarin v Houlayce (1991) FLC 92-246

APPLICANT:

Ms Rabab

RESPONDENT:

Mr Rashad

FILE NUMBER:

MLC

2889

2008

DATE DELIVERED:

9 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATES:

14 May 2008, 23 July 2008 and 7 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms McHugh

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

The marriage solemnised at V, Victoria on … June 2007 between the parties is declared to be absolutely null and void. That all applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2889 of 2008

MS RABAB

Applicant

And

MR RASHAD

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant wife Ms Rabab (“the wife”) seeks a declaration of nullity of marriage on two alternative or overlapping bases: first pursuant to s 23B(1)(d)(ii) of the Marriage Act 1961 (Cth) (“the Act”) that the marriage is void because she did not consent to it, having been mistaken as to the nature of the ceremony performed; and, secondly, that the marriage was not a validly solemnised marriage pursuant to the s 48 as it was not performed according to any form of ceremony recognised as sufficient for the purposes of the parties’ religion, Islam.

The conduct of the proceedings

The matter first came before me in the Judicial Duty List on 14 May 2008. At that time the wife was self represented and there was no appearance by the respondent husband Mr Rashad (“the husband”). I discussed with the wife the legal requirements for a declaration of nullity and in particular, my concern with regard to the state of the evidence which she advanced in support of the application. Because she was self represented, I adjourned the matter to allow her to seek legal advice and/or representation.
Prior to the return date the husband filed an affidavit in support of the wife’s application. I note there are some defects with the husband’s affidavit. The majority of its content is copied word for word from the wife’s affidavit filed 1 April 2008. Given that the husband has not appeared and was not cross-examined, this untested evidence caused me some concern. Nevertheless, it is purportedly signed by the husband, certified in his residential country of Canada and has annexed to it certified copies of his passport. That evidence is not challenged and in the circumstances, I accept it.
On 23 July 2008, the wife was represented by a solicitor. There were continuing concerns with regard to the evidence and I adjourned the proceedings again to allow the wife to obtain a further affidavit.
When the matter came before me on 7 August 2008 the wife was represented once again by her solicitor and there was no appearance by the husband. The wife sought to rely on a further affidavit of her brother filed 5 August 2008. I reserved my judgment on that day.

Background facts

Both parties are practising Muslims. The wife is 27 years of age and describes herself as coming from a traditional Islamic background and family. She is an Australian citizen who is employed in the public service. She is extremely proficient in English although Arabic is her first language.
The husband is 39 years of age and employed as a Financial Planner. He is a Canadian citizen residing in Canada.
The wife’s evidence is that in May 2007 the parties’ families began discussing the potential for an arranged marriage. The wife stated:
Prior to the husband coming to Australia I had very limited communication with him. The arrangements with regard to our possible marriage were all made between him and my father, as in our culture it is not acceptable that women speak to men not in their family without the permission for their father or in our case until there is a commitment to marry.
On 15 April 2007, the parties apparently signed a notice of their intent to marry. In one of her affidavits the wife conceded that she “may” have signed this document but she claimed not to have signed it on 15 April 2007 nor in the presence of the authorised celebrant named therein, KG JP. She claimed to have signed the document in the presence of Sheikh N.
On … June 2007 the husband travelled to Australia. The wife gave evidence that her first encounter with the husband was at the airport that day. There is no evidence to suggest that the husband had been present in Australia prior to that day. Accordingly, there is a question as to the circumstances in which the Notice of Intention to Marry referred to in the previous paragraph was signed.
The wife deposed that she believed that the parties would follow the traditional Islamic marriage process of making a commitment to marry, in essence a form of engagement, followed some time later by a traditional Islamic wedding marriage ceremony.
The wife said that upon the husband’s arrival in Australia her father called Sheikh N, an Imam known to the parties, and asked him how they should proceed. She deposed that soon afterwards the parties both relayed through the wife’s father details “about our passport numbers, full details of family name, date of birth, and in the husband’s case his previous marriage and divorce.” The wife stated that “[i]t was later established that this information was used to complete the Notice of Intention to Marry”.
On … June 2007, three days after the husband’s arrival in Australia, the Imam attended the wife’s home with “a bundle of papers” and subsequently the parties signed a Certificate of Marriage in his presence. In her affidavit filed 17 July 2008, the wife deposed to the circumstances surrounding this event:
…the husband [Mr Rashad], myself and my family were all in the lounge room at home. The Imam came with a bundle of papers which he asked us to sign. At the time neither of us were aware of the fact that this was to be our marriage day. It is our custom to have a formal commitment ceremony and then a marriage and it was my understanding that we were simply signing paperwork in preparation for these two ceremonies.
She further described these circumstances in her affidavit filed 5 August 2008:
… I was told by my father to dress appropriately, which means to put on a headscarf and long black pants and wait to be called.
I waited in another room and when I was called, I came in and the Imam handed me a number of papers and I was told to ‘sign here, here and here’. I never addressed the Imam and I never spoke to anybody else in the room, I simply signed as requested. He never spoke to me other than tell me to sign. Further the documents were not displayed openly, he had a hand full of documents, which he flicked open to the signature section and I just signed. Our culture does not allow me to sit and communicate with men other than family, so when I was invited into the room there was no conversation between me and any of the other parties in the room. After I signed there was a group photograph…I then left the room and the men remained behind and were served tea and biscuits.
The wife’s brother was also present on … June 2007. He signed the certificate of marriage as a witness. At paragraph 4 of his affidavit filed on 5 August 2008 he described the circumstances as follows:
It was an informal gathering at which time the Imam arrived with a number of papers which he asked us to sign. At the time the wife was not present, as prior to an engagement she is not permitted to sit with men other than family. She was invited in to the room and told to sign a number of documents. We were told by my father and the Imam that these papers represented a commitment to marry. Following family photographs she left without further discussion.
It is clear that on that day the parties signed an Islamic Certificate of Marriage as well as a Certificate of Marriage pursuant to the Act. The Islamic Certificate of Marriage was issued by Sheik N. This is the same person that the wife alleged her father contacted as part of the arrangement of the marriage. The Certificate of Marriage issued pursuant to the Act indicates that on … June 1997 at V, Victoria (the wife’s residence), KG JP (number A…) solemnized the marriage between the parties. The certificate indicates that the marriage has been registered in Australia pursuant to the Act. The wife has at all times acknowledged signing that document.
The wife’s affidavit filed 17 July 2008 stated that, “[t]he Iman that came to our house was the Imam that witnessed the signatures of myself, the husband and my brother in the Certificate of Marriage.” The wife’s brother’s affidavit makes specific reference to having never met KG JP, and particularly that he was not present on … June 2007 when the marriage certificate was signed. He deposed at paragraph 4 of his affidavit:
Despite the fact that it [sic] said Marriage Certificate the Imam told us that in fact it was an Engagement Certificate and my father told me to sign. We are a traditional patriarchal family and it would not be appropriate for me to question my father or the Imam. We come from a very strong cultural background and I just assumed that the process for my sister to be lawfully married would be followed, namely the engagement ceremony and marriage ceremony before the documents were lodged.
The wife deposed that after this day, having signed what the parties believed to be “a commitment of marriage”, they were culturally permitted “to be in each other’s company and speak more freely”, and that the parties then began “discussing the process of the marriage and commitment ceremony.” She continued:
I was aware that he was returning to Canada shortly and the agreement was that if we were happy to continue with the marriage plans that there would be a commitment ceremony in Dubai with his family and then there would be a decision made as to where the actual marriage ceremony would be held.
The wife’s brother deposed at paragraph 4 of his affidavit that:
I was aware of the fact that the husband had come in only to have that preliminary meeting as he left two days later. I was informed that he is running a business and had to return [to Canada]. The commitment ceremony was to be around October 2007 in Dubai where his family lives and then the marriage ceremony either in Dubai or Canada in around December with the whole family. I say to my knowledge neither the husband or the wife believed they had been married.
The husband departed from Australia on 18 June 2007. The wife’s evidence is that she has not seen the husband since that time. She maintained that the parties never cohabited and that the marriage was never consummated. A report from Dr B dated 11 February 2008 supports this claim. She gave evidence that on 14 January 2008 the parties agreed via text message communication that they no longer wished to marry.
During the course of the proceedings a submission was made by the wife’s solicitor that her client only discovered that she was married when she contacted the Imam to inform him that the parties had elected not to proceed with the marriage.
On 8 February 2008, the wife was issued with a certificate of Islamic divorce issued by Sheik N, the same person that issued the Islamic Certificate of Marriage. She has submitted that such a certificate may only be obtained by women who are not married in the eyes of Islam, as only men can request a divorce once parties are properly married
On 1 April 2008, the wife instituted proceedings in this Court, seeking a declaration of nullity.
She also asserted that the husband has since remarried in Canada. No documentary evidence was provided in support of either claim.

Relevant legal principles

Section 45(1) of the Act provides that:
Where a marriage is solemnized by or in the presence of an authorized celebrant, being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister.
The wife’s case is that the authorised celebrant whose name appears on the Certificate of Marriage, KG JP, was not present on … June 2007. This assertion is supported by the wife’s brother. There is no evidence to suggest that KG JP is an Imam of the Islamic religion. I note however that on the Certificate of Marriage, KG JP certifies that he is an authorised celebrant and includes his registration number. The wife deposed that ‘[t]he religious ceremony was carried by an Islamic celebrant.” The Islamic Certificate of Marriage indicates that Sheik N was present on … June 2007.
Paragraph (a)(ii) of the definition of "matrimonial cause" provides the jurisdictional basis for the making of a decree of nullity of marriage as sought by the wife. Section 51 of the Family Law Act 1975 (Cth) requires a decree of nullity of marriage to be granted on the sole ground of the marriage being void. As the applicant, the onus is on the wife to establish that the marriage is void pursuant to one of the grounds set out in s 23B of the Act on the balance of probabilities.
The wife’s application for a decree of nullity was originally made pursuant to s 42 of the Act. Section 42(1)(a) provides that a marriage shall not be solemnized unless:
(a) notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorized celebrant solemnizing the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage
Of relevance is s 48(2) of the Act which states that a marriage is not invalid by reason of:
(a) failure to give the notice required by section 42, or a false statement, defect or error in such a notice
Although the wife maintained that she did not sign the Notice on 15 April 2007 or in the presence of KG JP, it is clear that a defective Notice does not invalidate a marriage. The husband was not in Australia on the purported date of signing and there is, therefore, a question as to the precise circumstances in which it was signed. However, on the basis that both parties deposed that they signed the necessary Notice of Intention to Marry and on the further basis that an invalid notice does not make the marriage void, there is no need for me to further investigate that issue, particularly in light of the manner in which I will determine this application.
The essence of the wife's application relies on s 23B(1) of the Act. That section provides the grounds on which a marriage that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void. It provides that a marriage it is void in circumstances in which -
(d) the consent of either of the parties is not a real consent because:
…
(ii) that party is mistaken … as to the nature of the ceremony performed
The wife’s solicitor relied upon the unchallenged evidence of the wife and her brother in support of the submission that the wife was mistaken as to the nature of the marriage ceremony as she believed it to be a ceremony of commitment which formed part of the marriage to the husband which her parents had arranged, as distinct from the marriage ceremony itself. At paragraph 3 of his affidavit, the wife’s brother deposed:
According to our custom with arranged marriages there is a preliminary meeting and following that if the parties wish to continue with the marriage there is an engagement or commitment to marry and then a formal marriage ceremony. Until such time we do not consider a marriage has taken place.
Although the solicitor for the wife did not rely on any cases in support of this argument I am mindful of the decision of Najjarin v Houlayce (1991) FLC 92-246. That case presented with similar facts as appear in this case. The applicant wife was a Muslim of Lebanese descent. The respondent husband was a Lebanese citizen who travelled to Australia on a tourist visa and arranged to marry the wife after having had discussions with her father. The wife’s father consented to the marriage on the basis that a traditional Islamic ceremony known as a “kitab” was to be performed. Nygh J held at 78,760:
As I stated in my earlier decision in Osman and Mourrali (1990) FLC 92-111; (1989) 13 Fam LR 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 Osman and 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 …
In Najjarin v Houlayce, before the wedding ceremony took place the husband pressured the applicant into signing a certificate of marriage before an Imam. The marriage was not consummated. Shortly thereafter the respondent left Australia and ceased all contact with the wife.
The matter was heard on an undefended basis as the husband had been served with all relevant documents but had elected not to appear or file any material in the proceedings. His Honour granted the decree of nullity and held at 78,672 that
the essentials of the ceremony required by Islamic law made relevant pursuant to section 45(1) did not take place or because the applicant was mistaken as to the nature of the ceremony, that is to say she did not expect it to be a ceremony of marriage because under Islamic law what took place was not a ceremony of marriage.
His Honour also noted at 78,671-672:
… [there] is the evidence of the applicant in the present case that the customary rites required by Muslim law were not performed and that whatever happened before the authorized celebrant was merely confined to a signing of certificates, that no vows were exchanged and no expressions of intention to marry one another were uttered.
Section 45(1) of the Marriage Act 1961 provides that where a marriage is performed by a minister of religion, and in this case it must be assumed that the authorized celebrant was an Imam of the Islamic religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister. Sub-section (3) of the same Act provides that where a marriage has been solemnized by or in the presence of an authorized celebrant a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnized in accordance with this section.
However, sub-section (4) provides also that nothing in sub-section (3) makes a certificate conclusive:
``(a) where the fact that the marriage ceremony took place is in issue — as to that fact; or
(b) where the identity of a party to the marriage is in issue — as to the identity of that party.''
It is, of course, with sub-paragraph (a) that I am concerned.
The applicant has given evidence that for the purposes of the present proceedings the marriage ceremony did not take place. Sub-section (4) makes that evidence admissible, notwithstanding the provisions of sub-section (3). I accept that evidence and it therefore follows that the parties, in my view, did not enter into a valid marriage according to the law of Australia, either because the essentials of the ceremony required by Islamic law made relevant pursuant to section 45(1) did not take place or because the applicant was mistaken as to the nature of the ceremony, that is to say she did not expect it to be a ceremony of marriage because under Islamic law what took place was not a ceremony of marriage.

Another decision of relevance is that of AS and AS [1999] FamCA 1131. The applicant wife was a Muslim Australian woman of Lebanese descent and the respondent husband was a Lebanese citizen who travelled to Australia on a “fiancé visa” and later obtained Australian citizenship. The parties’ families arranged for a marriage to take place nine months after the Islamic ceremony of the “kateb el kitab” which Halligan JR referred to as “signing the deed.” The husband supported the wife’s application and filed an affidavit on her behalf. Both parties gave evidence that they understood this ceremony to be a formal engagement.
His Honour granted the decree of nullity on the basis of s 23B(1)(d)(ii) of the Act as there was a lack of consent due to a mistake as to the nature of the ceremony. His Honour concluded at page 6:
As there is no contradiction of the parties’ evidence, I must accept their evidence unless it is so internally inconsistent, or so inherently unbelievable or improbable, that the court could not accept it. There is no inconsistency in the parties’ evidence. The parties both provide plausible and consistent explanations as to what they were told about the ceremony, and why they signed a marriage certificate at the ceremony. Their evidence thus is not inherently unbelievable or improbable. I therefore accept their evidence.
On that evidence, I must be satisfied that this couple went through a ceremony which, to their knowledge, was not, and was not intended to be, a marriage ceremony, and that at the end of the ceremony the parties and a marriage celebrant signed a certificate of marriage. Neither party intended to enter into a marriage with the other in the ceremony performed on 10 February 1999. It follows that neither of the parties gave their consent to this purported marriage, and it is void. Although not a ground relied on by the applicant, it would also seem that the absence of a ceremony of marriage satisfying section 45 of the Marriage Act rendered the marriage void (see Najjarin & Houlayce, (1991) 14 Fam LR 889; (1991) FLC 92-246).

Conclusion

In this matter the wife’s version of events is undisputed. The husband supports her application and the evidence has been corroborated by her brother. I accept that the wife was mistaken as to the nature of the ceremony performed on … June 2007. Accordingly, it is appropriate to pronounce a decree of nullity.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.

Associate:

Date: 9 February 2009