Simpson-Morgan and Burreket - [2009] FamCA 138

FAMILY COURT OF AUSTRALIA

SIMPSON-MORGAN & BURREKET

[2009] FamCA 138

FAMILY LAW – MARRIAGE – NULLITY – Application for declaration of nullity of marriage – wife argues she was mistaken as to the nature of the ceremony performed and relies upon s23B(1)(d)(ii) of the Marriage Act 1961 – wife mistaken as to effect of marriage not nature of ceremony – application dismissed

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT:

Ms Simpson-Morgan

RESPONDENT:

Mr Burreket

FILE NUMBER:

SYC

5041

2008

DATE DELIVERED:

25 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

2 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Dlakic

SOLICITOR FOR THE RESPONDENT:

Mr Husseini

Orders

That the application of the wife filed 28 August 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Simpson-Morgan & Burreket is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5041 of 2008

MS SIMPSON-MORGAN

Applicant

And

MR BURREKET

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court, are those commenced by Ms Simpson-Morgan (the wife) by application filed on 28 August 2008 in which she seeks an order for the annulment of a marriage expressed in the application as being “[t]hat the marriage ceremony in which the Applicant took part on […] May 2008 be annulled.”
By a Response filed by Mr Burreket (the husband) on 13 November 2008, he seeks an order “[t]hat the wife’s application for annulment of the marriage entered between the parties on […] May 2008 be confirmed and announced as valid.”
The solicitor for the wife relies upon the provisions of Section 23B(1)(d)(ii) of the Marriage Act 1961, namely, that “the consent of either of the parties is not a real consent because that party is mistaken…as to the nature of the ceremony performed.”
In addition, the solicitor for the wife sought to rely upon the fact asserted by the wife that one of the witnesses to the wedding, namely, one IJ, whose name appears upon the Certificate of Marriage, was not in fact present at the solemnisation of the marriage.

Background Facts

The wife was born in September 1982 in Sydney and is presently 26 years of age.
The husband was born in November 1982 in Lebanon and is presently 26 years of age.
On 12 February 2006 the husband arrived in Australia on a study visa. In November 2007 the wife converted to Islam. In her oral evidence she asserts that she is a member of the Sunni Group of adherents to Islam.
She inferentially says that the husband is not a member of that group.
The wife asserts that the parties met in May 2008. The husband asserts that the parties met in January 2008.
The wife asserts that in May 2008 the parties married in a ceremony conducted by a Sheik, Sheik K, in the presence of Mr M, an authorised celebrant.
The wife asserts that no other person other than herself and the husband, the Sheik and Mr M were present at the ceremony but gives evidence that the ceremony was conducted in a room which had sliding glass doors which opened onto an anteroom.
In that anteroom sat the Sheik’s secretary, IJ, who was one of the witnesses shown on the Marriage Certificate. The wife asserts that it was possible to hear and see what was going on in the room from the waiting room.
Given the wife’s concession on these matters and the husband’s evidence which I accept on this point that IJ was the secretary to the Sheik who was present at that time I find that there is no irregularity so far as the appropriate witnesses are concerned.
In any event the wife seeks primarily to say that her marriage was not celebrated in her understanding in fact in accordance with the provisions of the Marriage Act 1961 but rather that the ceremony which took place was understood by her, it being that she was going through a marriage ceremony which was binding in accordance with Islamic Law but not binding under State Law.
Accordingly much depends on my assessment of the wife’s evidence, which is contradictory at times.
The wife’s evidence was given in affidavit form and orally and she was subject to cross-examination.
She called as her only witness a Miss P. Ms P was present at the time of the ceremony and sat in the antechamber where she could hear and see a man sitting in a corner subsequently said to be Mr M, the authorised marriage celebrant, who did not appear to her to take any active part in the ceremony’s process.
It has been held that it is not necessary for a celebrant to do other than be present whilst vows are taken. Accordingly whilst he appeared to play little or no active part in the proceedings, his presence was sufficient during those proceedings to constitute “solemnisation” of the marriage (subject to the wife’s claim) and was sufficient to give lawful form and substance to the marriage under the provisions of the Marriage Act 1961.
The wife asserts that she met the respondent in May 2008. The respondent visited her in her home where she resided with her children and returned thereafter on a daily basis. He participated in all family gatherings she had with her mother and sister and the wife says he was kind to her children.
The wife asserts in her affidavit field 28 August 2008 that “[o]ver the next few weeks it appeared to me that the respondent had a lot of time on his hands…”. Given that she says in other parts of her evidence that she met the respondent in mid May and was married to him in a ceremony which took place a week later, the assertion made by her that the parties cohabited for some weeks prior to the marriage seems unlikely.
The wife asserts that the husband said to her on about 20 May, “if we are going to be serious and have a sexual relationship, we must see the Sheik and make sure it is right by God.” The wife asserts that she said, “Ok, but I would rather wait a year for marriage.” She says he said, “Yes, but this is the Islamic way, the right way by God.”
In her affidavit the wife deposes that she understood from the conversation she had with the husband that they could not engage in sexual intercourse unless they were married in the Islamic religion.
She asserts that the marriage was not to be a civil or state ceremony but an Islamic marriage only, not binding under civil law and only binding under Islamic law.
She says in her affidavit material that she saw it as being similar to being engaged and that she would then have the sanction of the Islamic faith to commence a sexual relationship with the husband and that she would be married in the eyes of God but not in the eyes of the law.
There was, the wife says, some pressure from the respondent to go through the ceremony quickly. She says that on the day of the marriage in May 2008 Ms P and she went to see the Sheik at his office. In her affidavit the wife says that the Sheik did not speak in English and refused to speak in English inside the office to her.
The wife says that her friend, Ms P, was not allowed in but remained in the anteroom because the Sheik had informed her that “no women are allowed to witness”. She says that the ceremony was conducted in Arabic and that she did not understand that she was being married in the eyes of the State and she had not given any consent for a marriage binding in civil law.
She says she signed a document that she thought was an Islamic marriage certificate, the certificate was not dated or filled in other than the word “Islam”, and she signed it in blank form in front of the Sheik on the date of the marriage. She admits that it clearly bore the words “Commonwealth of Australia Marriage Certificate”.
She deposes that in the next week she went to the Department of Immigration and Citizenship in May (one day after the husband asserts that the marriage took place) with the respondent and there signed documents relating to the sponsorship of the respondent as an immigrant, including a representation that she was the spouse of the respondent.
There are inconsistencies of the wife’s oral and written evidence as discussed below.
In her oral evidence the wife gave an account of an exchange between herself and the Sheik in English, following protest that her friend enter the room in which the marriage was taking place. The wife says she was told by the Sheik that Ms P could not come in and “…if I do not like – if I don’t like it – and he knocked the wall and said I could bang my head up against the wall.” This is contrary to her evidence that the Sheik only spoke in Arabic at the ceremony and did not speak English. The wife deposes that she speaks no Arabic.
The husband says in oral evidence that there was a jocular exchange of the nature referred to in paragraph 30 above, in English. He further says that throughout the ceremony the Sheik spoke in Arabic but interpreted for her into English so that she would know what was being said.
The glaring absence in this case evidentially speaking is the absence of the Sheik or of any witnesses who were present at the time of the ceremony of marriage save for Ms P, who remained in the anteroom.
In her oral evidence the wife says, when speaking of the “discovery” by her of the marriage documents:
“I didn’t realise that he had done an Australian marriage…”
Speaking of the ceremony through which she had gone she says:
“I assumed it was an Islamic marriage which I’d looked up on so I went with it.”
The wife, speaking of a document she signed at the ceremony (the marriage certificate under the Marriage Act 1961), says:
“…the documents were in blank form. They asked me to sign and [the husband] to sign and all it had in the document was “Islam”. That’s the only word written in there. I remember clearly…”.
The wife subsequently concedes that the document she signed bore the title in English of “Certificate of Marriage”.
Later when questioned about her knowledge of the husband’s immigration status and handwritten notes she had made, annexure “E” to the wife’s affidavit filed 28 August 2008, she concedes she made the following note:
“Applied for Islamic marriage at the Sheik’s office as he told me it was better for our religion…”
Further discussing her sponsorship of the husband for a visa the wife says that the Department of Immigration were waiting for a document and she says:
‘I found those documents later and they were waiting for some documentation or something but that was for the Islamic marriage “ That was? “ That was for the Islamic marriage…”’
Later the wife says:
“…I had arranged for my Sheik to deal with the Islamic marriage which was in [L]… …I trust him. And it was a last minute decision for us to see [Sheik K].”
The wife goes on to say:
“I would be more than willing if someone loves me to go with an Islamic marriage but not – not an Australian marriage straight away where there’s a chance that they can use and use me and put me and my family in a bad situation…”
Later discussing the ceremony she went through in re examination the wife says:
“…I thought we’d be married as husband and wife in the Islamic law as in through the Sheik with the sanction of the Sheik… There’s a wedding and there’s a marriage.”
However, she also says in contradiction “So, I considered it to be like an engagement until further notice…”
The wife’s witness gave evidence of conversations that she had with the wife and she summarises the wife’s position as “She did not want to get married in Australian way. She only wanted to get married in the Moslem way only.”
The wife’s witness again says in response the questions which I summarise as “You understood from that she only wanted to marry in accordance with Islamic law but not in accordance to Australian law”, “Yes”.
At the end of the applicant’s case, given her contradictory evidence and the failure to adduce evidence from either the Sheikh or the celebrant, if I was to accept her case at the highest on my assessment of the evidence and the weight of the evidence (and it did not get any better following the cross examination of the husband), I was of the view that the wife had undertaken what she thought was a marriage ceremony in accordance with Islamic Law binding on her under that law but not binding on her under Australian Law. There was on the evidence clearly on the balance of probabilities an understanding on her part that the ceremony which the Sheik performed was a marriage ceremony. Her failure in understanding was not as to its nature but as to its effect. She thought that the ceremony she went through was not binding upon her under Australian Law.
The law is clear that a mistake as to the nature of the ceremony vitiates a party’s consent to a marriage but a mistake as to its effect does not. Although her solicitor opened on the basis that she did not believe it was a marriage ceremony on the whole of the evidence I find that she did so believe. Her case therefore at its highest is that she did not believe that the marriage was effective to bind her under Australian Law but was an effective Islamic marriage.
I accordingly find that the ground on which she seeks the declaration of nullity namely that she did not understand the nature of the ceremony is not made out and her application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 25 February 2009