SAVIDGE & DENZIL

[2019] FamCA 356

FAMILY COURT OF AUSTRALIA

SAVIDGE & DENZIL [2019] FamCA 356

FAMILY LAW – NULLITY – Application for declaration – Where at the time of the marriage the respondent was married to another person – Declaration of nullity made.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B(1)

APPLICANT: Mr Savidge

RESPONDENT: Ms Denzil

FILE NUMBER: PAC 5843 of 2018

DATE DELIVERED: 31 May 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 April 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Savidge

RESPONDENT – SELF-RERESENTED LITIGANT: No appearance

Orders

1. That it be declared that the marriage between the applicant Mr Savidge and respondent Ms Denzil conducted at Suburb D, New South Wales in May 2016 is a nullity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5843  of 2018

Mr Savidge

Applicant

And

Ms Denzil

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a declaration that the marriage ceremony entered into between him and the respondent at Suburb D, New South Wales in May 2016 is void and for a decree of nullity to be granted.

2. On 22 January 2019 the matter first came before a Registrar who ordered that by way of service the applicant email to the respondent the Initiating Application filed 6 December 2018, the affidavit filed 6 December 2018, a sealed copy of the Orders of this date and a blank Acknowledgment of Service.

3. On 8 February 2019, an Acknowledgment of Service signed by the respondent was filed with the Court with an Affidavit of Service signed by the applicant.

4. On 19 March 2019, the matter came back before a Registrar who was satisfied that service had been effected on the respondent in accordance with the previous orders and listed the matter for judicial case management and noted that the matter would proceed on an undefended basis if there was no appearance by the respondent on that date.

5. On 26 April 2019 the matter came before this Court. There was no appearance by the respondent and judgment was reserved in respect of the application for a declaration of nullity.

Background

1. The respondent married Mr B (“the first husband”) in the Philippines in 1996.

2. In August 2014 the applicant met the respondent on a holiday in the Philippines. The respondent told the applicant that she had never been married and claimed that her then child was born out of wedlock.

3. On 31 March 2016 the respondent travelled to Australia on a tourist visa, the application for which had been sponsored by the applicant. The parties were engaged on 15 April 2016 and later married in May 2016 at the Suburb D Registry Office. The respondent produced a document to the Department of Births Deaths and Marriages described by the applicant as a “Certificate of No Marriage” allegedly issued in the Philippines which indicated that the respondent did not appear in the National Indices of Marriages from 1945 to 2015. Consequently, on the parties’ marriage certificate the respondent’s conjugal status is “never validly married.”

4. In June 2016 the respondent made an application to the Department of Home Affairs for a partner visa. In January 2017 the respondent withdrew her application and left Australia.

5. The applicant subsequently discovered the respondent’s marriage to the first husband and somehow came upon a marriage certificate to that effect.

6. The applicant filed the present application seeking that his marriage to the respondent be declared null and void accordingly.

Applicable Law

1. Pursuant to s 51 of the Family Law Act 1975 (Cth) a decree of nullity may be granted on the ground that the marriage is void.

2. Section 23B(1) of the Marriage Act 1961 (Cth) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

3. In support of the Application for Nullity, the applicant annexes to his Affidavit filed 8 December 2018 a copy of the marriage certificate of the respondent’s first marriage in the Philippines. This document evidences that the respondent was married to her first husband in 1996.

4. By reason of the existence of this first marriage certificate, the “Certificate of No Marriage” annexed to the husband’s affidavit representing that the respondent does not appear in the National Indices of Marriages, which is said to record marriages enrolled from 1945 to 2015, is incorrect.

5. Accordingly, the Court is satisfied that at the time the applicant participated in the marriage ceremony with the respondent in 2016 the respondent was lawfully married to another person.

6. A declaration will be made that the marriage between the applicant and the respondent conducted at Suburb D in May 2016 is a nullity.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 31 May 2019.

Associate: 

Date:  31 May 2019