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 of 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: NA

SOLICITOR FOR THE APPLICANT: Ms McHugh

COUNSEL FOR THE RESPONDENT: NA

SOLICITOR FOR THE RESPONDENT: NA

Orders

1. 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

1. 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

1. 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.

2. 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…