RUTHERFORD & SAFI

[2014] FamCA 154

FAMILY COURT OF AUSTRALIA

RUTHERFORD & SAFI [2014] FamCA 154

FAMILY LAW – DECLARATION – Validity of marriage – parties married in an African country – polygamous marriage – notwithstanding the marriage was valid in that African country it is not recognised by Australian law – marriage declared not valid.

Marriage Act 1961 (Cth) s 88D
Family Law Act 1975 (Cth) s 113

APPLICANT: Mr Rutherford

RESPONDENT: Ms Safi

FILE NUMBER: ADC 128 of 2014

DATE DELIVERED: 5 March 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tydeman

SOLICITOR FOR THE APPLICANT: Legal Services Commission of SA

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. IT IS DECLARED THAT the marriage of Mr RUTHERFORD and Ms SAFI celebrated at Town B in African Country R on the … day of August 1980 is not valid in Australia.

2. The Initiating Application filed on 16 January 2014 is dismissed and removed from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 128 of 2014

Mr Rutherford

Applicant

And

Ms Safi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by way of Initiating Application filed on 16 January 2014 in which the applicant seeks orders by way of declaration in relation to the validity of the marriage solemnised between himself and the respondent.  For the purposes of this judgment, I will refer to the parties as the “husband” and the “wife”, but that does not indicate that I place any significance on that terminology.  It is just a matter of ease of description. 

2. I have before me the affidavit of the husband, sworn on 15 January 2014, which sets out the history of his relationships, including the marriage which existed with his first wife prior to him entering into a marriage with the wife in these proceedings, his second wife.

3. The counsel for the husband correctly points out that there is virtually no proof by way of documentary evidence of either of the first marriage or the second marriage. The Court is relying solely upon the sworn evidence of the husband. 

4. Taking into account, however, the circumstances in which the marriages took place and that the parties moved to Australia from refugee camps following the war in African Country S, I am satisfied that the failure to provide any written proof is understandable.

5. The matter is listed before me today and has been served upon the wife.

6. I have taken into account the evidence of Ms J, sworn by affidavit of 27 February 2014 in relation to service upon the wife. I will proceed to hear the matter, notwithstanding there is no appearance by or on behalf of the wife, the wife having been served and having been specifically called in the Court this morning. 

7. The affidavit of the husband sets out the particulars of the marriage to the wife in these proceedings.  He says in paragraph 9:

   In or around 1980 I visited [African Country R], when I met my second wife.

8. They were married in African Country R in August 1980 in a Muslim Religious Ceremony. He asserts that African Country R recognises polygamous marriage, and therefore his marriage to the second wife was legal in African Country R. 

9. The issue that needs to be dealt with by the Court today is whether the marriage is a valid marriage according to the laws of Australia, specifically the provisions of the Marriage Act 1961 (Cth) set out under Part VA, “the recognition of foreign marriages”. In particular, as is asserted in the application, it makes clear that marriages which are polygamous marriages are not recognised as valid marriages in Australia, even if they are recognised as valid marriages in the country in which that marriage was entered into.

10. The affidavit material before me, which is not contested, sets out that the second marriage, being the marriage between the husband and the wife in these proceedings, was polygamous, as at the time of that marriage the husband was still married to his first wife. 

11. The material before the Court is sufficient, in my view, in these unusual circumstances, to provide the necessary proof of the first marriage and the basis upon which the second marriage was entered into in African Country R.  I am therefore satisfied that the marriage was polygamous and under the provisions of the Marriage Act1961 (Cth) would not be recognised as valid in Australia.

12. The validity of marriages in section 88D clearly refers to the exception in 88D(2)(a) which:

    Either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid.

13. The first marriage of the husband would have been recognised as valid at the time of the second marriage being entered into, and therefore the second marriage is, under section 88D(2), not recognised as valid.

14. Pursuant to the provisions of the Family Law Act 1975 (Cth), section 113, I have the power to make a declaration in relation to the marriage.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 March 2014.

Associate:

Date:  17 March 2014