Sambucco v Sambucco

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0120

ODILLA SAMBUCCO (AS A PERSON UNDER A DISABILITY WHO SUES BY HER LITIGATION GUARDIAN LUISA SAMBUCCO) AND OTHERS ACCORDING TO THE SCHEDULE	Applicants
v
MARA SAMBUCCO	Respondent

---

JUDGES:	McLEISH and WALKER JJA and GORTON AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2023
DATE OF JUDGMENT:	25 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 199
JUDGMENT APPEALED FROM:	[2022] VSC 699 (Moore J)

---

STATUTORY INTERPRETATION – Marriage Act 1961 (Cth) s 23B(1)(d)(iii) – Marriage void where consent is not ‘real consent’ because party has not understood nature or effect of ceremony – Whether lack of understanding suffices to void marriage without reference to effect on consent – Lack of understanding as to nature and effect of ceremony will only void marriage if lack of understanding means that person did not really consent to marriage – Appeal dismissed.

PRACTICE AND PROCEDURE – Appeal – Application for leave to raise new ground not raised at trial – Expedience in interests of justice – Exceptional circumstances – Reasons of trial judge unchallenged – Ground relating to confined question of law – Evidence at trial uncontested and ground could not have been met by evidence – No prejudice to respondent except as to costs – No forensic advantage gained by applicants – Effect on third parties – Indemnity costs to alleviate prejudice – Leave granted to raise new ground.

Water Board v Moustakas (1988) 180 CLR 491; Coulton v Holcombe (1986) 162 CLR 1, applied.

WORDS AND PHRASES – ‘real consent’.

Marriage Act 1961 (Cth), ss 5(1), 23B(1)(d), 41, 42(1), 42(5A), 44, 45, 48(2)(a), 50; Wills Act 1997, s 13(1); Civil Law and Justice Legislation Amendment Act 2018 (Cth) s 2, sch 9, item 4.

In the Marriage of S (1980) 42 FLR 94; Moss v Moss [1897] P 263; Fern v Fern [No 2] [2021] FamCA 643; In the Marriage of Osman and Mourrali (1989) 96 FLR 365; Campani v Suyapto [2008] FamCA 1121; Bown v Jalloh [2014] FamCA 785; Official Trustee in Bankruptcy v Edwards (1997) 139 FLR 104; Simpson-Morgan & Burreket [2009] FamCA 138; Breust v Devine [2016] FamCA 892; Babich & Sukhar [2007] FamCA 236, referred to.

---

Counsel
Applicants:		Ms C Harris SC with Mr J Patela
Respondent:		Mr R Greenberger
Solicitors
Applicants:	Hope & Co Lawyers
Respondent:	Collards

MCLEISH JA
WALKER JA
GORTON AJA:

Background

On 8 June 2019, Marco Sambucco and Mara Batur, whom it is convenient to refer to by their first names, took part in a marriage ceremony according to the Rites of the Baptist Union of Australia. The ceremony was conducted by Reverend David Rock, the lead pastor at the Church by the Bay in Portarlington, which Marco and Mara attended.
Neither Marco, Mara nor Rev Rock believed that this ceremony caused Marco and Mara to become lawfully married. That was because, although Rev Rock was an authorised celebrant under the Marriage Act 1961 (Cth), various legal formalities under that Act had, to the knowledge of all parties, not been complied with. In particular, the parties had not given at least one month’s formal notice of their intention to marry, as required by s 42(1)(a) of the Act. Marco and Mara were unaware that non-compliance with the latter requirement does not invalidate a marriage, by virtue of s 48(2)(a) of the Act.
Marco and Mara had been in a relationship since 2010. They decided to marry and on 5 May 2019 asked Rev Rock to officiate at their wedding. On 20 May 2019, they completed and signed a notice of intention to marry on 13 July 2019. Soon after, however, they discovered that cancer treatment that Marco had been having had not been successful, and they decided to seek urgent medical treatment overseas. This meant that they would not be in Australia on the proposed wedding date.
In those circumstances, Marco and Mara asked Rev Rock if he would perform a religious wedding ceremony on 8 June 2019, before their departure overseas. This would be a small gathering with close relatives and friends. They proposed holding another wedding after their return to Australia, involving a much larger circle of friends and relatives, and completing in respect of that occasion the documents required by law. Rev Rock agreed to conduct the ceremony on 8 June 2019 on this basis.
The religious ceremony was duly conducted, as described further below, and Marco and Mara left for overseas not long afterwards. While they were overseas, they advised Rev Rock that they intended to hold the further wedding ceremony on 21 September 2019. They returned to Australia on 13 August 2019 but unfortunately Marco’s condition deteriorated and he died on 9 September 2019.
Letters of administration of Marco’s estate were granted to Mara on 31 January 2020.[1]
[1]On 10 December 2019 the Registrar of Births Deaths and Marriages issued a marriage certificate under the Births Deaths and Marriages Registration Act 1996 recording that Mara and Marco had married on 8 June 2019. However, the certificate was not determinative of whether the marriage was valid, and no party suggested otherwise before us: Sambucco v Registrar of Births, Deaths and Marriages Victoria [2020] VSC 889 [91] (Quigley J). That case involved an unsuccessful application by Marco’s brother, Robert Sambucco, for an extension of time within which to bring proceedings to quash the decision of the Registrar to register the marriage and to issue a marriage certificate.
A summons was subsequently filed by Marco’s parents Pier and Odilla Sambucco, and one of his siblings, Luisa Sambucco (the applicants in this Court) seeking the revocation of the grant on the basis that Marco and Mara were not lawfully married, with the result that a will made by Marco in 2015 in favour of his family members was valid. If Marco and Mara were lawfully married, the will would have been revoked by that marriage, by operation of s 13(1) of the Wills Act 1997.
The applicants’ summons was dismissed after a trial before a judge in the Trial Division.[2] The trial was conducted by affidavit and no witness was required for cross-examination.[3] The principal witnesses as to the ceremony that was undertaken on 8 June 2019 were Mara and Rev Rock. Mara gave the following evidence about the ceremony:
Our religious wedding ceremony certainly felt to Marco and me like a marriage, and we felt that we were married in the eyes of God. The wedding service was conducted by our Pastor David Rock, and the vows we made, as well as the remarks and readings made by Reverend Rock left us convinced that we were married. In relation to the vows, Reverend Rock read out each of the vows to Marco and me, and we each responded ‘I do’. We did not exchange rings, as the rings we were having made, were not ready yet. At the conclusion of the service, everyone congratulated us on our marriage, and referred to the fact that we were now married. They threw rice, and popped crackers.
Nevertheless, Marco and I were aware that we had not complied with the requirement for giving the [notice of intention to marry] and signing a wedding certificate, and we fully intended to repeat the wedding ceremony at a later date after giving the [notice], and we would then sign a wedding certificate.[4]
[2]Re Sambucco [2022] VSC 699 (Moore J) (‘Reasons’).
[3]Ibid [7].
[4]See ibid [14].
Mara described the way she and Marco lived after the ceremony, as follows:
[F]rom the time we held the religious wedding ceremony, Marco and I considered ourselves to be married from a religious perspective, and we continued to live together, and treat each other, as husband and wife until Marco passed away. Immediately following the ceremony, each of us told the other how happy we were to be married, and we each repeated that to each other on numerous subsequent occasions. Following our wedding, Marco openly referred to me as ‘Mrs Sambucco’ or as ‘my wife’, without any qualification, in numerous subsequent conversations he had with other people, in my presence.
Rev Rock gave this evidence:
I was conscious of the fact that there was no [notice of intention to marry] in place, and so I was careful to avoid making any suggestion that Marco and Mara were being married according to law. Indeed, my understanding was that without a [notice of intention to marry] and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act 1961, there could not be a marriage which was valid according to law. However, I intended that the marriage ceremony would satisfy the religious requirements shared by me, Marco and Mara. After the ceremony it was made clear to me by Marco and Mara they also considered themselves to be married before God as a result of the ceremony I performed.[5]
[5]Ibid [18].
Rev Rock exhibited to his affidavit a set of notes he read at the service. The notes contained vows in the following form, to which he said that each of Marco and Mara had responded ‘I do’:
I, [Marco Sambucco/Mara Batur] take you [Mara Batur/Marco Sambucco], to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part.
The notes concluded with a pronouncement declaring ‘before God’ that Marco and Mara were ‘husband and wife’. Rev Rock said:
At the conclusion of the ceremony I considered that Marco and Mara were married in the eyes of God. The people present all acted as though they accepted that the ceremony was viewed by Marco and Mara as a marriage before God, and everyone congratulated them on their marriage.

Submissions at trial

At trial, the applicants advanced two principal submissions. The first was that, in circumstances where Rev Rock did not intend to solemnise a legal marriage and the parties did not believe that they were entering into a legal marriage, the ceremony that took place on 8 June 2019 was a religious ceremony only, different and distinct from a legal marriage ceremony. As a result, it was said that there was no legal marriage.[6]
[6]Ibid [39]–[48].
The trial judge rejected this argument on the basis that the Marriage Act does not distinguish between legal and religious marriages, but operates to give legal effect to marriages which accord with recognised religious rites.[7] As a result, by their participation in the ceremony conducted by Rev Rock on 8 June 2019, Marco and Mara were lawfully married in accordance with the Marriage Act.[8]
[7]Ibid [79].
[8]Ibid [87].
The applicants’ second argument was that, even if the ceremony on 8 June 2019 was legally effective as a marriage ceremony, the marriage was void because Marco and Mara were mistaken as to the nature of the ceremony performed, within the meaning of s 23B(1)(d)(ii) of the Marriage Act.[9] Section 23B(1) provides as follows:
[9]Ibid [94].
23B Grounds on which marriages are void
(1)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:
(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.
The submission of the applicants in this context was that Marco and Mara were fundamentally mistaken about the nature of the ceremony in which they participated, because they thought that they were not entering into a legal marriage.[10] The trial judge rejected this argument on the basis that the failure of understanding on the part of Marco and Mara concerned the ‘effect’ of the ceremony but not its ‘nature’.[11] They had both understood that the ceremony was a religious wedding ceremony. As a result, the marriage did not fall within s 23B(1)(d)(ii).
[10]Ibid [100].
[11]Ibid [119].
The judge found it unnecessary to address an alternative argument advanced by Mara, to the effect that as a matter of construction of s 23B(1)(d), it was in any event necessary for the applicants to prove that either Marco or Mara would not have consented to taking part in the ceremony had they known it would result in them being married according to law.[12] This submission depended on the references to ‘consent’ in s 23B(1)(d) and involved construing s 23B(1)(d) as if the words ‘and would not otherwise have consented to the ceremony’ were added at the end of that paragraph.[13]
[12]Ibid [105]–[106], [120].
[13]Ibid [104].
In the result, the judge dismissed the summons with costs.

Application for leave to appeal

The applicants seek leave to appeal. Unusually, they do not take issue with the reasons or conclusions of the judge as described above. They now accept that the ceremony conducted on 8 June 2019 was a legal marriage ceremony notwithstanding that the participants believed otherwise. They also accept that the marriage was not void under s 23B(1)(d)(ii) as a result of Marco or Mara being mistaken as to the nature of the ceremony.
Instead, the applicants now seek to argue, for the first time, that the marriage was void under s 23B(1)(d)(iii) of the Marriage Act, on the basis that Marco or Mara, or both of them, did not understand the nature and effect of the ceremony. More specifically, they contend that neither Marco nor Mara understood the effect of the ceremony, because they thought it would not give rise to a legal marriage.
The applicants recognise that leave is required in order to rely on a ground by way of appeal which was not advanced in the court below, and made application accordingly. We heard full argument on that question, along with the substantive issue, and reserved our decision.
For the reasons that follow, the applicants should have leave to raise their proposed ground of appeal. Leave to appeal should be granted but the appeal must be dismissed.

Leave to raise new ground

The proposed ground of appeal is as follows:
5.The learned trial judge erred in law by failing to correctly apply s 23B(1)(d)(iii) of the Marriage Act 1961 to find that Marco Sambucco and Mara Batur (as she then was) misunderstood the nature and effect of the commitment ceremony, and therefore they were not validly married.[14]
[14]Proposed grounds of appeal 1–4 were abandoned at the hearing.
The applicants submitted that the proposed ground raised a confined question of law which could be decided on the basis of uncontested evidence. They submitted that the point could not have been the subject of any further evidence, had it been raised at trial, in particular because the parties put on their evidence in full before it was known what legal arguments would be advanced at trial.
The applicants submitted, in reliance on Water Board v Moustakas[15] that it was expedient and in the interests of justice for this Court to entertain the proposed ground. There could be no prejudice to the respondent, except as to costs. In addition, it was said, authority in the Federal Circuit and Family Court supported the argument that the kind of misunderstanding that occurred in this case renders a marriage void.
[15](1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ) (‘Water Board’).
The respondent submitted that it would be fundamentally unfair to permit the applicants to run an argument on appeal that was contrary to the case they advanced at trial. It was submitted that the applicants had contended, under s 23B(1)(d)(ii), that Marco and Mara’s mistake went to the nature of the ceremony, and not its effect. In that context, the respondent had argued that the mistake went to the effect of the ceremony. It would be unfair for that position now to be deployed belatedly by the applicants to their advantage.
The respondent submitted that the applicants had made a forensic decision not to rely on s 23B(1)(d)(iii). It was submitted that leave should not be granted in the absence of extenuating circumstances, and no explanation had been given to the Court for the applicants’ change of position.
Relying on Coulton v Holcombe,[16] the respondent submitted that a party should only be permitted to introduce an issue for the first time on appeal in exceptional circumstances. It was submitted that no such circumstances existed in this case and that the interests of justice required that leave be refused.
[16](1986) 162 CLR 1, 8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
The parties’ submissions as set out above might be thought to give the impression that there are contrasting tests to be applied when deciding whether to permit a party to raise an argument for the first time on appeal: a test of ‘exceptional circumstances’ and a test of ‘expediency in the interests of justice’. But that is not so. The following extract from the reasons of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe makes it clear that the test is whether it is expedient in the interests of justice to allow the point to be raised and that the test will be satisfied only in exceptional circumstances:
In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Bloemen v The Commonwealth (1975) 49 ALJR 219. In O’Brien v Komesaroff (1982) 150 CLR 310, 319, Mason J, in a judgment in which the other members of the Court concurred, said:
In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided ...
In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six Justices of this Court (University ofWollongong v Metwally (No 2) (1985) 59 ALJR 481, 483) the Court said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[17]
[17]Ibid 7–8.
This is confirmed by the reasons of Mason CJ, Wilson, Brennan and Dawson JJ in Water Board v Moustakas:[18]
More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.[19]
[18](1988) 180 CLR 491, 497.
[19]The Court cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; Coulton v Holcombe (1986) 162 CLR 1, 7–8 and O’Brien v Komesaroff (1982) 150 CLR 310, 319.

The present case is unusual in several respects. The applicants do not seek to displace the reasons of the trial judge or to pursue any of the grounds upon which they relied at trial. On the other hand, the respondent did not claim that the new point could have been met by evidence had it been raised below.
If we considered that the respondent would be in any way prejudiced by the raising of a new point in these circumstances, we would readily conclude that it would not be expedient in the interests of justice to permit that to happen. As noted, the respondent submits that she is prejudiced because the new argument runs counter to the applicants’ case at trial on s 23B(1)(d)(ii), and because it was she who argued at trial, based on the arguments which the applicants then advanced, that the parties were mistaken as to the effect of the ceremony.
We do not accept either of those submissions. There is no reason why the argument under s 23B(1)(d)(iii) could not have been run at trial in the alternative to the case that was put in relation to s 23B(1)(d)(ii). In other words, the applicants could have submitted that the parties were mistaken as to the nature of the marriage ceremony (as distinct from its effect) under sub-para (ii) and, in the alternative, that they did not understand the effect of the ceremony, under sub-para (iii). Moreover, the applicants accept that the judge’s finding that they were mistaken as to the effect of the ceremony is not determinative of the question under s 23B(1)(d)(iii) which they now seek to raise. The judge cannot be treated as having decided any aspect of that question. The unfairness asserted by the respondent has not been established. Her prejudice, if the point were to be permitted to be argued, would be confined to the matter of costs.
We also reject the argument that the applicants now seek to resile from a forensic decision made at trial. The respondent suggested no forensic advantage which the respondent might have sought to achieve by not taking the point at trial, and we can think of none ourselves. We accept that the applicants cannot point to any extenuating explanation on their own part. In the circumstances, however, the absence of evidence on these matters is not of great weight. The inference we draw, instead, is that the point was either overlooked or considered to lack sufficient force.
On balance, we have decided that, in the very unusual circumstances, it is expedient in the interests of justice to permit the new point to be advanced on appeal. There is no prejudice to the respondent that could not be remedied by a costs order. The question whether Marco and Mara were legally married is important to the distribution of Marco’s estate and will therefore affect third parties. It ought not be resolved without reference to a provision of the Marriage Act which is arguably of critical importance and which can be resolved on the evidence as it stands. It would be unjust to allow the matter to rest without addressing the argument.
We therefore turn to the substance of the proposed ground.

Provisions of the Marriage Act

It is necessary to place s 23B in context by reference to other provisions of the Act.
First, s 5(1) of the Act defines ‘marriage’ as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’.
Section 41 provides:
Marriages to be solemnised by authorised celebrant
A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorised to solemnise marriages at the place where the marriage takes place.
Section 42(1) provides for a notice of intention to marry, in the following terms:
Notice to be given and declaration made
(1)Subject to this section, a marriage shall not be solemnised unless:
(a)notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorised celebrant solemnising 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;
(b)there has been produced to that authorised celebrant, in respect of each of the parties:
(i)an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or
(ii)a statutory declaration … stating, to the best of the declarant’s knowledge and belief and as accurately as the declarant has been able to ascertain, when and where the party was born; or
(iii)a passport issued by a government of an overseas country, showing the date and place of birth of the party; or
(iv)an Australian passport, showing the date and place of birth of the party; and(c) each of the parties has made and subscribed before that authorised celebrant a declaration, in writing, as to:
(i)the partys conjugal status;
(ii)the party’s belief that there is no legal impediment to the marriage; and
(iii)such other matters as are prescribed.
Section 42(5A), which was introduced by the Marriage Amendment Act 1976,[20] provides as follows:
An authorised celebrant shall, as soon as practicable after receiving the notice referred to in subsection (1), give to the parties a document outlining the obligations and consequences of marriage and indicating the availability of marriage education and counselling.
[20]Section 15(1)(c).
We interpolate that no evidence was given as to whether or not Rev Rock gave Marco or Mara a document of the kind described in this provision.
Section 44 provides for witnesses to the marriage, as follows:
Witnesses
A marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 years are present as witnesses.
Section 45 provides for the form of marriage ceremony. It contains different provisions depending on whether the marriage is solemnised by or in the presence of an authorised celebrant who is, or is not, a minister of religion. Section 45 relevantly provides:
Form of ceremony
(1)Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.
(2)Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:
‘I call upon the persons here present to witness that I, AB (or CD), take thee, CD (or AB), to be my lawful wedded wife (or husband, or spouse)’;
or words to that effect.
(3)Where a marriage has been solemnised by or in the presence of an authorised celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnised in accordance with this section.
…
Section 48 provides that, even if various provisions governing the solemnisation of marriage are not complied with, the marriage remains valid. It states:
Certain marriages not solemnised in accordance with this Division to be invalid
(1)Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.
(2)A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;
(e)failure to comply with the requirements of section 44 or 46;
(f)failure to comply with the requirements of section 13.
(3)A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.
Section 50 provides for marriage certificates. Section 50(1) is in the following terms:
Marriage certificates
(1)Where an authorised celebrant solemnises a marriage, the authorised celebrant shall:
(a)prepare a certificate of the marriage, in accordance with the prescribed form, for the purpose of issue to the parties to the marriage; and
(b)prepare 2 official certificates of the marriage.
We note in passing that, because s 50 is not a provision ‘preceding’ s 48, failure to comply with its terms does not render a marriage invalid under s 48(1).[21]
[21]That result probably also follows because s 50 is not a provision ‘in accordance with’ which a marriage is ‘solemnised’.
Section 23B of the Act is one of a long line of provisions that have appeared in Australian marriage legislation in similar terms. Section 18 of the Matrimonial Causes Act 1959 (Cth) first provided for void marriages, using much the same language but with two significant differences.
(a)First, the words ‘and effect’ which now appear in s 23B(1)(d)(iii) did not feature in the original provision, which was confined to the ‘nature’ of the marriage ceremony.[22] The words ‘and effect’ were introduced when the Family Law Act 1975 (Cth) repealed the Matrimonial Causes Act and made provision for void marriages in s 51.[23]
(b)Secondly, s 18(1)(d)(iii) referred to a party being ‘mentally incapable of understanding’ the nature of the ceremony. That formulation remained intact in successor legislation until 2018, as mentioned below.[24]
[22]Matrimonial Causes Act 1959 (Cth) s 18(1)(d)(iii).
[23]Family Law Act 1975 (Cth), as enacted, ss 3(1), 51.
[24]See below [50].
The Marriage Amendment Act 1976 repealed s 51 of the Family Law Act and introduced s 23 into the Marriage Act, in substantially the same terms.[25] The Marriage Amendment Act 1985 (Cth) enacted s 23B, taking effect with respect to marriages that took place after its commencement. For present purposes, s 23B as first enacted was relevantly in the same terms as s 23.
[25]Marriage Amendment Act 1976 (Cth), as enacted, ss 12, 29(2).
Finally, s 23B(1)(d)(iii) was amended in 2018 by replacing the words ‘is mentally incapable of understanding’ with the words ‘did not understand’.[26]
[26]CivilLaw and Justice Legislation Amendment Act 2018 (Cth), s 2, sch 9, item 4.

Submissions

The applicants submitted that it sufficed to attract the operation of s 23B(1)(d)(iii) if either party to a marriage ceremony had either not understood the nature or not understood the effect of the ceremony. They submitted that ‘effect’ for these purposes extended to the legal effect of the ceremony. It was said that, if this condition was met, the marriage was void because the consent of the party in question to the marriage was not a real consent. No independent inquiry into the latter question was required.
The applicants submitted that it was insufficient to understand the nature of the ceremony, but that the parties must also understand its effect. Proof that understanding of either was lacking would vitiate the party’s consent and render the marriage void. The applicants sought to draw support for these submissions from a decision of the Federal Circuit and Family Court in Babich & Sokur.[27]
[27][2007] FamCA 236 (‘Babich’).
The respondent submitted that the use of the word ‘and’ in s 23B(1)(d)(iii) showed that a marriage was only void under that provision if the party in question did not understand both the nature of the ceremony and its effect. A party’s consent would be ‘real’ if he or she understood either the nature or the effect of the ceremony.
The respondent submitted that the proposed ground wrongly assumed that a misunderstanding would satisfy s 23B(1)(d)(iii). That provision should not, she argued, be construed so as to cover the same ground as s 23B(1)(d)(ii). Instead, the word ‘mistaken’ in sub-para (ii) was to be contrasted with the phrase ‘did not understand’ in sub-para (iii). The former involved a state of belief that was in error, while the latter involved an absence of understanding. It was said that, whereas a mistake encompassed an error by a fully capable person, the expression ‘did not understand’ is directed to the person’s understanding and indicates that there must be some limitation on the person’s mental capacity which results in their failure to understand the nature and effect of the marriage ceremony. This was said to be consistent with the earlier form of the provision which, until 2018, had referred to a party being ‘mentally incapable of understanding’ the nature and effect of the ceremony. On this basis, the respondent contended that s 23B(1)(d)(iii) had no application to the present case.
In any event, however, the respondent contended that Marco and Mara considered themselves married and had therefore given their ‘real consent’ to the marriage. It could not be said, in circumstances where they planned to enter into a legal marriage, that they would not have participated in the ceremony if they had realised it would result in a legal marriage. In that respect, the respondent revived the submission as to the construction of para (d) which she had advanced at trial (in the context of sub-para (ii)), which the trial judge had found it unnecessary to decide.[28]
[28]See above [17].

Analysis

There are seven elements or steps that can be identified in the submissions of the applicants in respect of s 23B(1)(d)(iii). The first submission was that sub-para (iii) has its natural meaning. In particular, it was not to be read down by reference to any notion of mental incapacity. Nor was it to be read as excluding a case involving a lack of understanding constituted by a mistake as to the nature and effect of the ceremony.
Secondly, the applicants submitted that the word ‘and’ in the phrase ‘nature and effect’ is to be read as requiring that a party understand both the nature and the effect of the marriage ceremony, such that a want of understanding of either (or both) will attract the provision.
Thirdly, the applicants submitted that the word ‘the’ before the phrase ‘marriage ceremony’ in sub-para (iii) indicates that it is the actual ceremony that was performed, not ‘the marriage ceremony’ as a general conception that the parties must understand.
Fourthly, the ‘effect’ which the parties must understand extends, in the applicants’ submission, to the fact that the ceremony will be legally effective.
Fifthly, the applicants submitted that, if sub-para (iii) is satisfied, the result is, necessarily and in all cases, that the consent of the party to the marriage is not a real consent.
Sixthly, in the present case, it follows from the fact that both parties failed to understand that the marriage ceremony in which they took part was legally effective, that sub-para (iii) was satisfied.
Finally, the applicants submitted that, it followed as a matter of law that the marriage was void.
For the reasons that follow, the present case should be decided by reference to the fifth element of the applicants’ argument identified above. We will therefore assume, without deciding, that the first four elements are made good. As will appear, it is not necessary to deal with the respondent’s alternative but related argument, that s 23B(1)(d) should be construed as if the words ‘and would not otherwise have consented to the ceremony’ were added at the end of that paragraph.
We should note, however, that the literal reading of s 23B(1)(d)(iii) for which the applicants contended would have some curious results.
(a)In the first place, it would appear likely to render the latter part of sub-para (ii) otiose, because every mistake as to the nature of the marriage ceremony within the meaning of that provision would also entail a lack of understanding about the nature of the ceremony sufficient to satisfy sub-para (iii).
(b)Secondly, the applicants’ construction would mean that the amendment made in 2018 by the removal of the reference to mental incapacity would have made a fundamental change to the scope of the sub-paragraph. As discussed further below, there is no apparent support for that conclusion in the extrinsic materials relevant to the amendment. To the contrary, there is a suggestion to the contrary effect in the Australian Law Reform Commission report which preceded the amendment and in the explanatory memorandum for the amending Bill.[29]
[29]See below [74]–[77].
The applicants’ submissions in relation to the second, third and fourth steps of their argument rested on stronger grounds. However, in light of the conclusions to which we have come, it is not necessary to pursue those issues further.
We turn then to the fifth step in the applicants’ argument. That is the submission that para (d) in effect deems the consent of the party to a marriage not to be a ‘real consent’ whenever the provisions of any of sub-paras (i), (ii) or (iii) are satisfied.

Construction of s 23B(1)(d)(iii)

The notion of ‘consent’ in this context is to be understood as consent to marriage to the other person in the ceremony. The Marriage Act does not use the notion of ‘consent’ elsewhere in the provisions governing the form, validity and legal effect of a marriage. But the question of consent is fundamental to the definition of ‘marriage’ itself, which is a union that must be ‘voluntarily entered into’. The notion of voluntariness upon which the whole idea of marriage under the Marriage Act depends demands the consent of the parties. In other words, the fact that marriage must be voluntarily entered into makes it clear that it is the union of two people for life, to the exclusion of all others, to which the parties must give their ‘real consent’.
The question then is whether s 23B(1) treats every case falling within the terms of sub-para (d)(iii) as, without more, one in which the party lacking the requisite understanding has not given their ‘real consent’ to the marriage; or whether, having established that sub-para (iii) applies, s 23B(1) proceeds to ask whether, because of the relevant lack of understanding, the party in question did not give their real consent to the marriage. It is convenient to focus on the result of a lack of understanding of the ‘effect’ of the marriage ceremony, on the assumption that, in accordance with the second step in the applicants’ argument, this suffices to attract sub-para (iii), without reference to the ‘nature’ of the ceremony.
Starting, as we must, with the text of the provision, in our view it offers no support to the applicants’ construction. If every marriage in which a party did not understand the effect of the marriage ceremony is void, regardless of whether or not the party’s consent to the marriage is vitiated as a result of that want of understanding, the opening words of para (d) would have no function. They would merely be descriptive of the result of the lack of understanding. If so, the words might as well have been omitted and each of its sub-paragraphs treated, like paras (a), (b), (c) and (e), as freestanding conditions.
The statutory context is also against the applicants’ construction. The words in sub-para (iii) describe one of several ways in which the consent of a party might not be a real consent. Each of those ways is linked to the notion of consent by the word ‘because’ which precedes them. The fact that consent is central to the definition of marriage itself suggests that s 23B(1)(d) of the Marriage Act should be construed so as to focus on the reality of consent. The applicants’ construction, which would deem void any marriage that satisfies the terms of one of the sub-paragraphs, without inquiring whether that circumstance caused the party’s consent not to be a real consent, instead unmoors s 23B(1)(d) from the definition of ‘marriage’.

The applicants’ construction is also at odds with the purpose of s 23B(1)(d), as shown by its opening words — namely, to void marriages where one of the parties has not given their real consent to the marriage. It would not advance that purpose at all if the provision operated to render void a marriage to which both parties had given their real consent (unless, of course, one of the other paragraphs of s 23B(1) were to be satisfied).
The text, context and purpose of s 23B(1)(d) therefore indicate that it operates to void only those marriages where the consent of either or both of the parties is not a ‘real consent’, as a result of any of the circumstances identified in sub-paras (i), (ii) or (iii). We are fortified in that conclusion by two further considerations.

Extrinsic materials

First, the construction advanced by the applicants would have the result that the amendment in 2018, by which the reference to mental incapacity was removed and replaced by words describing only an absence of understanding, would have had the effect of dramatically widening the scope of the sub-paragraph. The present issue did not arise in such stark terms, if at all, when sub-para (iii) had its earlier form. A person under a mental incapacity which prevented them from understanding the nature and effect of the marriage ceremony could readily be seen not to have been in a position to give their real consent to the marriage. The applicants’ construction of the amended provision would extend the operation of sub-para (iii) to apply it to cases where that might not be so.
Nothing in the extrinsic materials suggests that the amendment was intended to bring within the scope of s 23B(1)(d)(iii) a marriage to which both parties had given real consent, even though either or both of them did not understand the effect of the marriage ceremony. The amendment had its origins in the 2014 Australian Law Reform Commission Report into Equality, Capacity and Disability in Commonwealth Law.[30] It was recommended in the final chapter of the report, entitled ‘Other Issues’. The report records that stakeholders supported the Commission’s proposal to amend s 23B(1)(d)(iii) ‘to provide that, instead of a reference to mental incapacity, the consent of either of the parties may be void where that party did not have decision-making ability with respect to the marriage’.[31] The ensuing recommendation 11-1, however, uses the neutral language now found in the provision, without reference to ‘decision-making ability’. The report explains that the Commission did not recommend a ‘statutory test of decision-making ability’, lest this unintentionally resulted in a ‘higher threshold for real consent to marry for persons with disability’.[32]
[30]Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Report, August 2014) (‘ALRC Report’).
[31]Ibid 293–4 [11.27].
[32]Ibid [11.38].
It is clear, therefore, that the Commission did not recommend broadening the operation of sub-para (iii) — quite the contrary. More importantly for present purposes, the report did not address the position of persons without disability at all. Certainly it reveals no purpose of amending the provision so that it would void marriages of such persons which would not previously have been affected.
The silence of the report on any such policy is mirrored by the parliamentary materials. The explanatory memorandum for the Civil Law and Justice Legislation Amendment Bill 2017 (which amended s 23B(1)(d)(iii) by removing the reference to mental incapacity) describes the purpose of the Bill as ‘to make minor and technical amendments to civil justice legislation’.[33] In respect of the Marriage Act, the amendments are said to ‘remove outdated concepts and ensure consistency with the Family Law Act’ regarding the marriage of minors, to ‘make technical amendments of minor policy significance to improve the operation’ of the Marriage Act, and to ‘remedy errors and defects in existing legislation and streamline relevant provisions to ensure their consistency’.[34]
[33]Explanatory Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, 2 [1].
[34]Ibid 3 [11], 6 [25].
More particularly, the statement of compatibility with human rights states that the amendments ‘will move the focus from whether a person has a disability to, simply, whether the person understands the nature and effect of the marriage ceremony’, adding:
These amendments will ensure that persons with a disability are not unnecessarily prevented from entering a marriage, and therefore will promote the rights of persons with a disability as set out in article 23 of the [Convention on the Rights of Persons with a Disability].[35]
[35]Ibid 14 [75].
The explanatory memorandum later refers to the ALRC report and records that the amendment would ‘focus on the requirement for a person to understand the nature and effect of the marriage ceremony in order for the marriage to be valid, rather than focus on the person’s disability’.[36]
[36]Ibid 66 [335].
In light of these observations about the limited purpose of the amendment, it would be surprising, to say the least, if parliament had enacted a provision which operated to broaden the class of marriages rendered void by sub-para (iii) in the way the applicants suggest. The extrinsic materials rather suggest that parliament was concerned only to narrow the scope of the sub-paragraph as it applied to people with a disability.

Case law

The second consideration that reinforces the construction we have identified is that a brief survey of case law in relation to para (d) shows that the courts have been concerned to confine the operation of its sub-paragraphs so as not to bring within the ambit of the provision cases where the parties’ consent to the marriage has not been vitiated. In other words, the courts have treated the guiding principle of para (d) as being that marriages to which a party has not given real consent, for one of the identified reasons, are void. That has led to the sub-paragraphs being read down so as to advance that purpose. In a slightly different way, therefore, the opening words of para (d) have been given real work to do.
Accordingly, before the amendment, the sub-paragraphs of s 23B(1)(d) were construed as going to the question of consent, so that the chapeau to s 23(B)(1)(d) governed the construction of each sub-paragraph. So, the concept of ‘duress’ in sub-para (i) has been construed as involving a vitiating of consent. In In the Marriage of S,[37] the applicant went through an arranged marriage ceremony against her wishes, because she felt obliged to do so as a result of loyalty to her family, pressure from her family and religious conviction. The Court held that:
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.[38]
[37](1980) 42 FLR 94.
[38]Ibid 104 (Watson J) (emphasis added).
The Court referred to earlier authority adopting the following statement of Simon P in Szechter v Szechter:[39]
In order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock.[40]
[39][1971] P 286.
[40]Ibid 297–8 (emphasis added), quoted in In the Marriage of S (1980) 42 FLR 94, 103 (Watson J).
To similar effect, the Court held in In Marriage of Teves and Campomayor:[41]
[D]uress 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.[42]
[41](1994) 122 FLR 172.
[42]Ibid 181 (Lindenmayer J) (emphasis added).
The same approach has been taken to ‘fraud’ in sub-para (i). The courts have applied the following statement of the law, which depends on establishing that the fraud goes to the reality of consent, and not merely that the consent was procured by fraud:
[W]hen in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces consent, but is limited to such fraud as procures the appearance without the reality of consent. The simplest instance of such fraud is personation … in every case where a fraud has been held to be a ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent.[43]
[43]Moss v Moss [1897] P 263, 268–9 (Sir Francis Jeune P) (emphasis added), cited in Fern v Fern [No 2] [2021] FamCA 643 [27] (Howard J).
To similar effect, Nygh J observed in In the Marriage of Osman and Mourrali[44] that, if a person wishes to go through a ceremony of marriage with a person of whose identity they are aware, ‘it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together for ever after’.
[44](1989) 96 FLR 365, 366.
Equally, a mistake as to the identity of a party satisfies sub-para (ii) if it means that the other party’s consent to marriage to that party was not a real consent.[45] If a person intended to marry the other party to the ceremony, but was mistaken as to their true name and marital history, this would not suffice to vitiate consent to the marriage.[46] It is the fact that the consent is not a real consent, because of the mistake as to identity, which renders a marriage void under sub-para (ii).[47]
[45]Campani v Suyapto [2008] FamCA 1121 [12] (Dawe J).
[46]Bown v Jalloh [2014] FamCA 785 [41]–[44] (Rees J).
[47]Ibid [35], citing Paul Toose, Ray Watson and David Benjafield, Australian Divorce Law and Practice (Lawbook, 1968) [107].
Similarly, a mistake as to the nature (as distinct from the effect) of the ceremony performed means that the person has not consented to marriage. Some of the cases addressing this aspect of sub-para (ii) bore on the trial judge’s consideration of this aspect of the case below. In Official Trustee in Bankruptcy v Edwards,[48] for example, the parties were married in Hawaii, both believing that the marriage would not be valid under Australian law. The Court cited authorities that made it clear that the question is whether the relevant mistake vitiates the party’s consent:
If a person goes through a ceremony of marriage in the mistaken belief that a ceremony other than that of marriage is being performed, such marriage is void … for there has been no real consent to marry[.][49]
If one party did not realise that it was a marriage ceremony that was being performed so that the party did not really consent to marriage, then the marriage is not valid.[50]
[48](1997) 139 FLR 104 (‘Edwards’).
[49]Ibid 108 (Simos J), citing Toose, Watson and Benjafield, Australian Divorce Law and Practice, (Lawbook, 1968) 52–3.
[50]Edwards (1997) 139 FLR 104, 833 (Simos J), citing Malcolm Broun and Stuart Fowler, Australian Family Law & Practice (CCH Australia, 1975) [11-700] (emphasis added).
In that case, neither party was mistaken as to the nature of the ceremony performed, which was one of marriage, with the result that the condition in sub-para (ii) was not met.
The same conclusion was reached on different facts in Simpson-Morgan & Burreket.[51] It is clear that a mistake of the kind described in this limb of sub-para (ii) vitiates a party’s apparent consent to the marriage. As the Court spelt out in another case, in which the opposite result was reached:
I am satisfied that the applicant was not informed by the respondent of the true nature of the ceremony and of the documents she signed, and that the applicant was mistaken as to the nature of the ceremony and the content of the documents she signed due to her lack of English proficiency. I am thus satisfied on the balance of probabilities that the applicant did not give real consent to the marriage that took place.[52]
[51][2009] FamCA 138.
[52]Breust v Devine [2016] FamCA 892 [29] (Thornton J).
The previous form of sub-para (iii) was considered in Babich. The focus of the analysis was on the nature of the ‘understanding’ which the provision requires. The Court explained that the test is whether the person has more than a general understanding of what marriage involves, namely an understanding of what the particular marriage in question involves.[53] In effect, the question resolves to one of consent. That case involved a person found to be ‘incapable of considering the effect of the marriage on her’. The Court held that she was ‘mentally incapable in that regard of understanding the effect of the marriage ceremony, and her consent was not real’.[54] In this way, again, the sub-paragraph was interpreted as being addressed to the issue of consent.
[53]Babich [2007] FamCA 236 [255] (Mullane J); see the third element of the applicants’ argument identified at [58] above.
[54]Ibid [256].
Babich was decided under the previous form of s 23B. We have not been able to find any case in which sub-para (d)(iii) has been in issue where neither party is under a mental incapacity or disability.

Conclusion on construction

For these reasons, we conclude that s 23B(1)(d)(iii) operates to render a marriage void on the ground that a party did not understand the nature and effect of the marriage ceremony, only if that lack of understanding was such as to mean that the person did not really consent to the marriage.

Application to this case

When we apply that test to the present case, the applicants’ argument cannot be sustained. Assuming, without deciding, that the misunderstanding on the part of Marco and Mara as to the legal effect of the ceremony they undertook meant that they ‘did not understand the nature and effect’ of that ceremony, the evidence is clear that they did nonetheless understand that they were voluntarily committing to a union to each other for life. Although they thought that this commitment was legally ineffective, it has not been established that this misunderstanding undermined the commitment of either of them, or made their consent to the union any less real.
It is possible to envisage a state of affairs in which two people in such a situation would have decided not to go through with the ceremony, had they known it would be legally binding, perhaps preferring to take that step on a later occasion. If so, it might be established that those parties had not given their real consent to the marriage. Other possibilities might be imagined. But there is no evidence of that kind in this case. In the circumstances, the inference that should be drawn from the evidence set out earlier in these reasons is that Marco and Mara wanted to commit themselves to each other for life before they travelled overseas, and that their consent to do so through the ceremony of marriage performed by Rev Rock was not vitiated by their misunderstanding as to the legal position.[55] In other words, despite their misunderstanding about the legal effect of the ceremony in which they participated, their consent to the marriage was real.
[55]See [8]–[12] above.

Conclusion

We therefore grant leave to appeal, but dismiss the appeal. Subject to hearing any submission to the contrary, our present view is that the applicants should pay the respondent’s costs of the application for leave to appeal, and the appeal.
Again subject to any submission that the applicants may wish to make, we consider that those costs should be assessed on the indemnity basis, in light of the failure of the applicants to raise at trial the sole argument pursued in this Court.
---

SCHEDULE OF PARTIES

ODILLA SAMBUCCO (AS A PERSON UNDER A DISABILITY WHO SUES BY HER LITIGATION GUARDIAN LUISA SAMBUCCO)	First Applicant
THE ESTATE OF PIER GIORGIO SAMBUCCO, DECEASED	Second Applicant
LUISA SAMBUCCO	Third Applicant
v
MARA SAMBUCCO	Respondent

[2023] VSCA 199

25 August 2023