Salib & Bitar
[2025] FedCFamC1F 92
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Salib & Bitar [2025] FedCFamC1F 92
File number(s): PAC 4044 of 2024 Judgment of: ANDERSON J Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – NULLITY – Where a decree of nullity is sought – Duress claim – No matters of principle Legislation: Family Law Act 1975 (Cth), s 4AB, s 51
Marriage Act 1961 (Cth), s 23B(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 6.17, r 8.15(3)(e)
Cases cited: Azmi & Shinde [2014] FamCA 824.
Berrell & Berrell (No 2) [2013] FamCA 900.
Clifton v Kerry J Investments and Ors [2020] FCAFC 5.
Cooper (falsely called Crane) v Crane [1891] P 369.
In the Marriage of S (1980) FLC 90-820.
Patel & Noora [2019] FCWA 260
Teves and Campomayor (1995) FLC 92-578.
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 10 February 2025 Counsel for the Applicant: Ms Finch Solicitor for the Applicant: Infinity Law Group Solicitor for the Respondent: Mr Rish of Calculus Legals ORDERS
PAC 4044 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SALIB
Applicant
AND: MR BITAR
Respondent
Date of hearing: 10 February 2025 ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s Initiating Application filed 9 August 2024 be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Salib & Bitar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE ANDERSON
INTRODUCTION
On 9 August 2024, the applicant wife (“the wife”) filed an Initiating Application seeking a declaration that the marriage entered into between her and the respondent husband (“the husband”) in mid-2021 is a nullity.
The wife seeks such a declaration on the grounds that her consent to the parties’ marriage was not a “real consent” within the meaning of the Marriage Act 1961 (Cth) (“the Marriage Act”) such consent having been vitiated by duress.
For the reasons discussed below, I dismiss the wife’s application.
EVIDENCE
In support of her application, the wife read the following documents:
(a)Affidavit of the wife filed 20 December 2024;
(b)Affidavit of the wife’s mother filed 20 December 2024; and
(c)Tendered documents.[1]
[1] Exhibit W1.
The husband relied on:
(a)Affidavit of the husband sworn 12 September 2024 but filed 7 January 2025; and
(b)Tendered documents.[2]
[2] Exhibits H1 to H6.
The wife’s counsel objected to the admission into evidence of the husband’s Affidavit filed 7 January 2025 on the basis that the document was not filed in accordance with an Order made by a Judicial Registrar on 17 October 2024 regulating the parties’ preparation for Trial. I overruled the objection in circumstances where the wife’s legal representatives had been seized of the document for about five weeks and were unable to identify any prejudice to the conduct of the wife’s application.
Further, and on 6 February 2025, being three days prior to the commencement of the Trial, the husband’s solicitor produced fourteen pages of SMS text messages, which were ostensibly exchanged between the parties. The wife’s counsel opposed leave being granted to the husband to rely upon those messages. The objection of the wife’s counsel was made on the basis that:
(a)Given the late disclosure of the SMS text messages, it had been an impossible task for him to obtain instructions from the wife prior to the commencement of the trial;
(b)The wife did not send the text messages referred to by the husband and accordingly, the wife had lost the opportunity to forensically examine the husband’s mobile telephone.
Whilst I was aware of the terms of r 6.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and jurisprudence relating to the operation of that rule,[3] I overruled the objection of the wife’s counsel. I did so in circumstances where:
(a)By her Affidavit filed 20 December 2024, the wife asserted that various SMS text messages referred to in the husband’s earlier Affidavit material whilst ostensibly sent by her were in fact sent by the husband, unbeknown to the wife.[4] Particularly, the wife asserted that the husband would access her mobile telephone and send messages to his own phone in an attempt to create an impression that the wife consented to the marriage. It follows that as early as mid-December 2024, the wife by her own Affidavit material had challenged the authenticity of SMS text messages disclosed by the husband but had otherwise failed to undertake any forensic analysis to prove the same. Further, the wife’s counsel was unable to explain how an examination of the husband’s mobile telephone might assist the wife’s case in circumstances where it was the wife’s assertion that the husband had in fact accessed her mobile telephone to send SMS text messages to himself and thereafter delete the messages;
(b)I provided the wife with an opportunity to consider the fourteen pages of SMS text messages and to thereafter, provide her counsel with instructions.
[3] For example, Berrell & Berrell (No 2) [2013] FamCA 900 per Kent J; Patel & Noora [2019] FCWA 260 per O’Brien J; Clifton v Kerry J Investments and Ors [2020] FCAFC 5.
[4] Wife’s Affidavit filed 20 December 2024, paragraphs 42 to 43.
I excluded all annexures to the Affidavits having regard to r 8.15(3)(e) of the Rules.
GROUNDS FOR NULLITY
The only issue to be determined by me is whether the marriage between the parties is void by operation s 23B(1) of the Marriage Act. That is, I must determine whether the consent of the wife was not a “real consent” because it was obtained by duress.
This application is governed by two relevant provisions. Firstly, s 51 of the Family Law Act1975 (Cth) (“the Act”) explains that a nullity is based on the ground that the marriage is void. Section 51 of the Act relevantly provides:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B(1) of the Marriage Act provides that a marriage is void where:
Grounds on which marriages are void
…
(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.
As discussed, it is the wife’s case that she married the husband under duress pursuant to s 23B(1)(d)(i) of the Marriage Act.
Cogent evidence must be given before a presumption of consent can be rebutted and a marriage annulled if, as here, an adult has gone through a public ceremony giving all the indications of consent: see Cooper (falsely called Crane) v Crane [1891] P 369 at 375-377 (“Cooper”), and more recently Azmi & Shinde [2014] FamCA 824. The well-known passage from Cooper reads as follows:
On these facts, is the petitioner entitled to a decree? On the one hand, it is clear law that if she did not in fact consent to the marriage the Court will declare it null. On the other hand, when a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled ... In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things - either that she was so perturbed by terror that her mind was unhinged, and she did not understand what she was doing ... or that though she understood what she was doing her powers of volition were so paralyzed [sic] that, by her words and acts, she merely gave expression to the will of the respondent and not her own.
When considering what constitutes “duress”, Watson SJ in the case of In the Marriage of S (1980) FLC 90-820 adopted the term “oppression” as the meaning of “duress”, with his Honour concluding that:
A sense of mental oppression can be generated by causes other than fear or terror. If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage that consent is vitiated by duress and is not a real consent. This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.
Thus, Watson SJ concluded that the wife in that case had established duress as she had been “caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience”.[5] Notably the wife was only 16 years of age and had been brought to Australia from Country C when she was eight years of age. As there had not been direct threats or violence directed at the wife in that case, the decision broadened considerably the test that had previously applied.[6]
[5] Ibid.
[6] Riethmuller and Smith, Family Law (Thomson Reuters, 7th edition, 2022) at [5.170].
In the decision of Teves and Campomayor (1995) FLC 92-578, Lindenmayer J concluded at 81,737 that:
[I]t can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent.
In Hamwi & Omar [2012] FamCAFC 174, the Full Court referred more accurately to whether the wife’s will had been “overborne”.[7] Similarly, in Sarvari & Atapati [2017] FamCA 928 at [15], the Court considered whether the will of a spouse had been overborne.
[7] Hamwi & Omar [2012] FamCAFC 174 at [28].
RELEVANT FACTS AND DETERMINATION
The parties met on social media in 2020[8] and married in mid-2021. They lived with each other for a number of weeks prior to separating on 26 July 2021.[9]
[8] Wife’s Affidavit filed 20 December 2024, paragraph 4.
[9] Wife’s Affidavit filed 20 December 2024, paragraph 3.
The wife asserts that she did not provide her “real consent” to the marriage. There are two limbs to the argument advanced by the wife:
(a)Firstly, that her relationship with the husband was characterised by family violence and that such violence placed her under duress such that she was incapable of consenting to the parties’ marriage in mid-2021;
(b)Secondly, that on the day of the marriage ceremony, the husband placed her under duress such that she was incapable of consenting to the parties’ marriage.
Was the wife’s consent to the parties’ marriage vitiated by family violence perpetrated by the husband?
The wife asserts that the husband would “physically and verbally abuse [her] daily”.[10] The wife relies on her allegations of family violence to ground her application to the effect that she did not provide “real consent” to the marriage. The particulars of the wife’s allegations as to family violence are as follows:
[10] Wife’s Affidavit filed 20 December 2024, paragraph 7.
(a)The wife says that when the parties met in 2020, she was working on a part-time basis in retail in circumstances where she was uncertain as to her career and study plans.[11] She says that the husband forced her to leave that employment and make an application to work in a corporate role as this would be beneficial to her from a financial perspective. The wife did so and says that she commenced employment in a corporate role in 2021.[12] The husband was not cross-examined with respect to this allegation. It is his written evidence that he encouraged the wife to “get a better job for [a] better future”.[13] This evidence did not persuade me to make any finding that the husband sought to control the wife by forcing her to work at any institution where she did not wish to work. Further, I note that at the time of trial, the wife described herself as a professional and this being so, I infer that at least in the period subsequent to separation, the wife has been satisfied to remain in a corporate role;
[11] Wife’s Affidavit filed 20 December 2024, paragraph 18.
[12] Wife’s Affidavit filed 20 December 2024, paragraph 19.
[13] Husband’s Affidavit filed 7 January 2025, paragraph 8.
(b)Between early and mid-2021, the husband forced her to transfer a sum of approximately $2,000.00 to his bank account.[14] The husband was not cross-examined about this allegation nor was he cross-examined on any other form of financial control. Accordingly, I was unable to make a finding that the husband denied the wife financial autonomy or otherwise forced her to transfer monies to him;
[14] Wife’s Affidavit filed 20 December 2024, paragraph 21.
(c)In late 2020, the husband messaged the wife’s parents after finding the number of the wife’s mother on her telephone. The wife says that:
(i)she took umbrage at the husband poaching her mother’s mobile telephone number from her telephone and thereafter, messaging her mother without her consent[15]; and
[15] Wife’s Affidavit filed 20 December 2024, paragraph 15.
(ii)on confronting the husband about his conduct, the husband slapped the wife and their argument escalated.[16]
[16] Wife’s Affidavit filed 20 December 2024, paragraph 17.
The husband was not cross-examined by the wife’s counsel with respect to this allegation and the husband does not refer to it in his Affidavit filed 7 January 2025. Absent any cross-examination with respect to this event, the evidence is not strong enough for me to make any factual finding with respect to the alleged assault of the wife in late 2020. Further, the alleged event occurred some months prior to the marriage ceremony in mid-2021. This being so, I do not consider that an examination of the events, which occurred in late 2020 are relevant to my determination about whether the wife’s consent to the marriage was vitiated by duress in mid-2021. Certainly, this evidence does not permit me to find that the wife was oppressed at the time of her marriage to the husband;
(d)In early 2021, the wife says that she and the husband had an argument about her choice of clothing and that this led to the husband grabbing her and slapping her.[17] The husband was not cross-examined by the wife’s counsel with respect to this allegation. Again, the evidence is not strong enough for me to make any factual finding that the alleged assault of the wife in early 2021 in fact occurred;
[17] Wife’s Affidavit filed 20 December 2024, paragraph 10.
(e)On several occasions in 2021, the husband would denigrate the wife by calling her a “fat pig”.[18] The husband conceded during his oral evidence that prior to the parties’ marriage he would denigrate the wife by making comments about her weight and physical appearance. Given the husband’s concession, I find that the husband perpetrated family violence by making derogatory taunts of the wife;[19]
[18] Wife’s Affidavit filed 20 December 2024, paragraph 12.
[19] Family Law Act 1975 (Cth), s4AB(2)(d).
(f)In early 2021, and in response to his dissatisfaction with the manner in which the wife was driving, the wife says that the husband “hit [her] across the head [and] punched [her] in the arm”. The wife also says that the husband screamed at her and said:
I don’t like the way you’re driving. You accelerated too hard. How many times do I have to explain the same thing to you…do you want me to send your family those photos and videos and you will be the reason why your old, aged mother would die?[20]
[20] Wife’s Affidavit filed 20 December 2024, paragraph 28.
The husband was not cross-examined with respect to this precise event although he was cross-examined about his threat to send lewd photographs and video recordings of the parties performing sexual acts to the wife’s family members if she refused to marry him. I refer to this topic below. The evidence is not strong enough for me to make any factual finding that the alleged assault of the wife in early 2021 occurred;
(g)In mid-2021, the husband brought up the topic of marriage. The wife says that she considered herself too young to get married and advised the husband accordingly. As a consequence of this discussion, the wife says that:
(i)the husband slapped her across the face multiple times.[21] Although the husband was not asked about this precise event, he did concede under cross-examination that prior to the parties’ marriage in mid-2021, he did slap the wife on one occasion;
[21] Wife’s Affidavit filed 20 December 2024, paragraph 24.
(ii)the husband threatened to send to the wife’s “whole family” and her mother photographs of the wife depicted in a naked state and a video of the parties having sex. The wife says that the photographs and video were taken without her consent.[22]
[22] Wife’s Affidavit filed 20 December 2024, paragraph 24.
The husband said during his oral evidence that any lewd images and videos were only recorded subsequent to the parties’ marriage. He also said that the images were taken by the parties consensually during sexual activity. I discuss this topic in further detail below;
(h)As a consequence of the threats made in mid-2021, the wife says that:
(i)In June 2021, she attempted self-harm “but the knife was blunt and did not harm me”.[23] The husband in his oral evidence said that he had no knowledge of the attempted self-harm;
[23] Wife’s Affidavit filed 20 December 2024, paragraph 25.
(ii)In mid-June 2021, she “tried to jump out of my balcony” but could not bring herself to do it. The husband denied that this occurred. He said that that the parties were at work on that date in June 2021 and accordingly, the wife could not have attempted to end her life in the manner so described;
(iii)In about late June 2021, she “tried to ingest rat poison” but could not put it in her drink as she “was scared”.[24] In his oral evidence, the husband denied that rat poison was ever kept at the former matrimonial home.
The wife’s evidence was not strong enough to permit a factual finding that she attempted self-harm on three occasions in June 2021. Further, and for the reasons discussed below, I have formed a view that the wife was excited by the prospect of her marriage to the husband. This is despite the fact that for reasons known only to the wife, she kept the prospect of her marriage to the husband a secret from her mother;
(i)On several occasions prior to the parties’ marriage in mid-2021, the wife tried to end the parties’ relationship. The wife says that on a date and time unspecified, she had a conversation with the husband in the following terms:
Wife: This is not working. I don’t want to be with you anymore.
Husband:You know I have nude photographs and videos of you. I will show them to your family and friends and put them online. Your reputation will be ruined in the community and your mum will have a heart attack or stroke.
The husband denied this allegation by dint of his assertion that any photographs and/or video recordings of the parties performing sexual acts were only take subsequent to the parties’ marriage and taken on a consensual basis.
[24] Wife’s Affidavit filed 20 December 2024, paragraph 25.
Although I have found that the evidence permits a finding that the husband perpetrated family violence by making derogatory taunts of the wife and physically assaulted the wife on at least one occasion prior to the parties’ marriage, I am not satisfied that these “circumstances…taken together” enable me to find that the wife did not exercise a voluntary consent to the marriage.[25] Certainly, and as discussed below, I have formed a view that the evidence supports a conclusion that the wife was excited by the prospect of her marriage to the husband as opposed to being oppressed at the relevant time.
[25] In the Marriage of S (1980) FLC 90-820.
When making this finding, I also bring to account a statement, which the wife provided to New South Wales Police in mid-2021, some weeks after separation. By that statement, the wife advised New South Wales Police that:
(a)The parties married in mid-2021. She says nothing in her statement about her wish not to do so;[26] and
(b)She would have described her relationship with the husband “as being normal up until after the first week of being married” at which time, the wife said that she observed the husband to “get angry easily” and start arguments with her.[27] Under cross-examination, the wife asserted that the word “normal” was a reference to her life continuing as per normal in these sense that she continued to be subjected to family violence. I reject that assertion by reference to the findings made by me above as well as the context of the wife’s assertion within her statement to police. The gravamen of the wife’s statement to police was that the parties started to “argue about the smallest things” after they had been married for a week.[28]
[26] Exhibit 4, page 1.
[27] Exhibit 4, page 1.
[28] Exhibit 4, page 1.
The wife did not advise New South Wales police about any violence perpetrated by the husband prior to the parties’ marriage in mid-2021. Further, and with respect to photographs of the wife of an explicit nature, the wife expressed concern that the husband might circulate them to members of her family to persuade her to return to the marriage.[29] She said nothing about the use of these images to compel her to marry the husband in mid-2021.
[29] Exhibit 4, page 5.
The wife’s statement to police does refer to being choked by the husband on a number of occasions in the week after the parties’ marriage.[30] Whilst there is no doubt that these acts constitute family violence, they are not relevant to my determination about whether the wife’s consent to marriage in mid-2021 was vitiated by duress.
[30] Exhibit 4, page 2.
In the course of his evidence, the husband tendered several SMS text messages to support his contention that the wife willingly entered the marriage. One of those messages dated mid-2021 reads as follows:[31]
[31] Exhibit H2.
Husband: Babe.
Don’t forget to [make] contact with tailors today.
And if they say like oh we’re closing at 5 then tell them somehow we’ll ho [sic] to his or her place so he can take the measurements and make it ready by max Saturday afternoon.
Because without that our wedding can not be [sic] happen.
Wife: I know don’t worry baby I’ll be from
Firm*
Also this girl got me coffeeee [sic]
Babeee [sic]
I didn’t even ask.
The wife’s evidence was to the effect that the husband was in fact referring to the wedding of his relative and that he ought to have said “the wedding” not “our wedding”. I reject this assertion for two reasons:
(a)Firstly, the wife took the time to correct the word “from” when she in fact meant to convey to the husband that she would be “firm” with the tailor. However, in her oral evidence, the wife said she was “busy” and accordingly, did not correct the husband’s reference to “our wedding” to “the wedding”. I find the wife’s assertion to the effect that she was too busy to correct her message as implausible particularly given the earlier correction to the SMS text message exchange and her desire on three occasions to tell the husband about an act of generosity on the part of a third party with respect to the purchase of a coffee;
(b)Secondly, the SMS text messages were exchanged by the parties in circumstances where the parties married five days later. The husband’s anxiety about contacting the tailor and collecting garments by 12.00 pm must be seen in this context;
(c)The wife’s response to the husband’s use of the phrase “our wedding” was “I know don’t worry baby”. This indicates to me that she did not take issue with the word “our” as she did not perceive that the husband had made any error.
In rebuttal, the wife said in her oral evidence that she was anxious about collecting the garments from the tailor so that she might post them to the husband’s relative on a date in mid-2021 in circumstances where the husband’s relative was getting married in Country C. I find that assertion to be implausible. Further, there was no evidence before me about when the husband’s relative would marry nor why the wife had to post anything to her on an urgent basis.
Further, and in the days leading to their marriage, the parties had the following exchange of SMS text messages:
Husband: So from Sunday we’ll be have our happiest marriage life.
Wife: Babe from today I reckon.[32]
[32] Exhibit H5, page 2.
Immediately prior to the exchange of those messages, the wife sent the husband a video by SMS text message of her performing a sexual act on the husband. The video is inscribed with the words “He loves me” and having sent the video, the wife sent the husband a further message, which said “Hehehehe”.[33] Although the video contradicts the husband’s evidence that the parties did not take video recordings of a sexual nature prior to the parties’ marriage, the evidence did not permit me to make any finding that the video depicted was recorded absent the wife’s consent. The fact that the wife sent the husband the video is a further factor, which I bring to account.
[33] Exhibit H5, page 2.
On a date in mid-2021, being the day prior to the parties’ marriage ceremony, the parties also had a SMS text message exchange in the following terms:[34]
[34] Exhibit H3, page 3.
Husband: Oh my baby.
I want cuddles.
Wife: Come here.
…
Wife:Babe from tomorrow we won’t have to cuddle each other thru the phone.
We can do it in person.
Husband: I knowwww [sic].
And it’s from TOMORROW.
Wife:Babbeeee,
Husband: BABE BABE.
Wife:Ahhhh.
I’ve got butterflys [sic].
Husband: 26 more hours.
…
Wife:Babbeeee.
AHHH.
26 hours until forever babe.
It was the wife’s oral evidence that the husband would access her mobile telephone and send messages to himself in an effort to convey an impression that the wife was excited by the prospect of marriage and/or consented to the parties’ marriage. In response, the husband said in his oral evidence that the wife’s mobile telephone was protected by a password and that he did not know the same. In any event, and whether or not the husband did know the password to the wife’s mobile telephone, I consider the wife’s evidence to be implausible in circumstances where:
(a)The wife gives no evidence about being in the presence of the husband on the day prior to the marriage ceremony in mid-2021;
(b)The wife gives evidence about being picked up by the husband from her parents’ residence at 7.00 am the following day;[35]
(c)It was not put to the husband by the wife’s counsel that he accessed the wife’s phone the day before the marriage to send messages to his phone.
[35] Wife’s affidavit filed 20 December 2024, paragraphs 29 and 30.
The SMS text messages exchanged between the parties on the day before the marriage, also identify that the wife sent the husband text messages wherein she said that:
Wife: Also babe we can’t send each other snaps today.
…
Wife: Because we can’t see each a day before the wedding babe.[36]
[36] Exhibit H3, page 5.
These messages are consistent with the parties being apart on the day before the marriage and convey a sense of excitement on the part of the wife about the prospect of being married the following day. It is implausible and it was not put to the husband by the wife’s counsel that he accessed the wife’s phone on that date to send messages to his phone. I also find that the messages between the parties convey affection and a sense of spontaneity, which causes me to conclude that it is improbable that the husband fabricated the messages as so asserted by the wife.
I also consider that the application at bar is motivated by the wife’s desire within a religious context, to have the marriage between the parties annulled so as to not cause offence to her mother. Particularly, I find that for reasons known only to the wife, she kept details about her intention to marry the husband a secret from her mother. I arrive at this conclusion by reference to the following:
(a)On the evening prior to the marriage in mid-2021, the parties had a conversation by SMS text message about how the wife might pack for the wedding the following day in the presence of the wife’s mother. The conversation was in the following terms:
Husband: How you gonna pack
In front of your mum
Wife: I’m going to pack at night.
Husband: After she sleeps
And and
Make sure babe.
You have a good sleep
…
Wife: Yeah after she sleeps then I’ll pack.
(b)The wife advised the husband that her parents did not “deserve” to be at the marriage ceremony, and she was disinclined to put their names on the parties’ marriage certificate;[37]
(c)The wife’s mother deposed to being “very angry and shocked” that she only learned of the parties’ marriage on the evening after the marriage ceremony.[38]
[37] Exhibit H10, page 10.
[38] Affidavit of the wife’s mother filed 20 December 2024, paragraph 5.
In the context of sending messages about how the wife might pack her belongings absent detection by her mother, the wife also advised the husband that she was “excited and nervous” and referred to the need for each party to get a good sleep because they would not be doing so on the evening of their marriage.[39] Again, the spontaneity of the text messages and the fact that there is no evidence that the parties spent any time together on the day prior to the marriage in mid-2021 causes me to reject the wife’s assertion that the husband caused the messages to be sent from the wife’s mobile telephone to fabricate a text chain, which might cause a reader to form a view that the wife was consenting to the parties’ marriage.
[39] Exhibit H3, page 8.
For all these reasons, I reject the wife’s assertion that on the morning of the day of the marriage in mid-2021, she believed that she was getting picked up by the husband to go on a trip to Region B.[40] Instead, the messages exchanged between the parties the day before in mid-2021 reflect nothing but the parties’ affection for each other and their mutual excitement at the prospect of marriage the following day.
[40] Wife’s affidavit filed 20 December 2024, paragraph 29.
The parties also exchanged an SMS text message the day before their marriage in mid-2021[41] at which time the husband asked the wife to book a restaurant so that they might celebrate following the marriage ceremony.[42] Again, the sending of the message, the context in which the message appears and the spontaneity of the parties’ communications leads me to believe that the communications between the parties was genuine.
[41] Exhibit 3, page 13.
[42] Exhibit 3, page 13.
With respect to the marriage itself, and as discussed, the wife says that on the morning of the marriage in mid-2021, the husband contacted her by telephone at which time the parties had a conversation about travelling to Region B. She says that she agreed to accompany the husband but whilst driving, the husband diverted to his sister’s home under the guise of forgetting to pack something for the trip.[43] For the reasons discussed above, I reject the wife’s version of events. The wife also says that on arrival at the home of the husband’s sister, the husband took her to a room and handed her a dress, which looked like a wedding dress. Thereafter, she says that she had a conversation with the husband in the following terms:
Wife: Why are you giving me a wedding dress, what’s happening here?
Husband: We’re going to get married.
Wife: No we’re not.
Husband:I have [a religious leader] here and [names of third parties] and my parents are on video call. Don’t embarrass me.
Wife:I’m not marrying you today. I’m not marrying you.[44]
[43] Wife’s Affidavit filed 20 December 2024, paragraphs 29 to 30.
[44] Wife’s Affidavit filed 20 December 2024, paragraph 31.
The wife says that as a consequence of her discussion with the husband she “became upset and began crying and shaking”. At that juncture, the wife says that the husband showed her photographs and videos of her naked and “in erotic positions”. The wife asserts that the husband threatened her by saying:
Here are your photographs in the nude. If you don’t agree to marry me now I’m going to send these photos to your parents and to your uncle.[45]
[45] Wife’s Affidavit filed 20 December 2024, paragraph 33.
Again, and for the reasons discussed above, I find the wife’s version of events to be implausible. The SMS text messages exchanged between the parties in the days leading up to the marriage ceremony convey excitement on the part of the wife and a genuine desire to marry the husband.
CONCLUSION
In the present case, there is insufficient evidence for me to find that the wife was acting under duress when she married the husband in mid-2021. Instead, and for the reasons discussed, I find that the wife was excited by the prospect of marriage and for reasons known only to her, sought to keep the marriage a secret from her mother.
The evidence led by the wife is not such that I can conclude that the wife’s will was overborne by the husband.
Ultimately, I am not persuaded on the evidence as presented, that on the balance of probabilities the wife entered into the marriage as a result of duress within the meaning of s 23B(1)(d)(i) of the Marriage Act.
I must therefore dismiss the application.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 21 February 2025
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