Sirnam and Sirnam

[2018] FamCA 872

FAMILY COURT OF AUSTRALIA

SIRNAM & SIRNAM [2018] FamCA 872

FAMILY LAW – DECLARATION – Validity of marriage (including overseas) – Where a declaration is sought that a purported marriage is invalid – Where the parties do not consider themselves married – Where the purported marriage certificate was chosen by the parties after conducting a google search – Where the marriage was never registered in Australia or overseas – Where it is not appropriate for the court to make a declaration

Family Law Act 1975 (Cth) ss 4(i)(b), 113

APPLICANT: Ms Sirnam

RESPONDENT: Mr Sirnam

FILE NUMBER: ADC 2485 of 2017

DATE DELIVERED: 27 September 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 27 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kari

SOLICITOR FOR THE RESPONDENT: Richards & Evans Commercial Lawyers

Orders

1. The Initiating Application filed 4 May 2018 be dismissed.

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 Sirnam & Sirnam 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 ADELAIDE

FILE NUMBER: ADC 2485 of 2017

Ms Sirnam

Applicant

And

Mr Sirnam

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the court upon the Initiating Application filed 4 May 2018 by Ms Sirnam (‘the applicant”). She seeks an order that the purported marriage with Mr Sirnam (“the respondent”) in 2013 at B Town, Country C, is invalid.

2. There is some considerable history to this matter, not only in respect of the circumstances by which the parties underwent the purported marriage ceremony, but also that the parties have been involved in extensive litigation in respect of settlement of property.

3. The court file reflects that final property orders were made in the Federal Circuit Court on 19 December 2017. The orders of property settlement are relevant to the current application by reference to notation D:-

   On … 2013, the parties participated in a marriage ceremony and wedding in [Country C]. The parties did not register for marriage with the government authorities in [Country C]. Both parties are of the understanding that the fact that they did not register the marriage in [Country C] means the marriage is not valid in Australia. The parties have agreed to apply to the Family Court of Australia at their joint and equal expense for a declaration as to the validity of the marriage. In the event that the parties are found to be validly married, the parties have agreed to apply for a divorce at their joint and equal expense.

4. It can be seen then that this application is a condition that the parties had agreed as part of the final consent order for settlement of property. The application is supported by an Affidavit filed 4 May 2018 and an extensive report annexed to an Affidavit of Mr D, filed 4 September 2018.

5. Mr D, a PhD candidate attached to a Law School, has significant qualification and expertise in Country C law and has provided her report at the joint request of the parties as to the status of the ceremony that the parties underwent in Country C.

6. The short summary of events is that the parties participated in a marriage ceremony in early 2013 and the plan was that they were originally to marry in Country C, but they decided that they would undergo a ceremony in Country C and then, with formality, a solemnised ceremony upon their return to Australia.

7. Both the applicant and the respondent are Australia citizens. I am told that the applicant is currently not resident within the Commonwealth of Australia, but rather is now resident in the United Kingdom. The applicant’s affidavit sets out that she made certain inquiries as to what might have been required for a valid marriage in Country C, but this was not followed up.

8. They decided upon a ceremony at a resort utilising a local pastor who came to the hotel where the parties were staying. The pastor was paid in cash to perform the ceremony. Paragraph 17 of the applicant’s affidavit says that:

   The pastor supplied us with a marriage certificate after the ceremony.

   The applicant says that she retained the certificate. They had a wedding reception, at which 90 guests, being family and friends, attended. They also had a Religious ceremony at an archaeological park, and that was held on the same day. The concern as to the validity of the marriage was raised by the applicant upon her return to Australia when she sought to change her name from her maiden name to Sirnam.

9. She thought that she was able to do so by reference to the Country C marriage certificate. It was not surprising that when she attended at a local Service SA office, she was told that the marriage certificate could not be accepted, as it was not an official certificate.

10. The affidavit of the applicant suggests that this was a matter of some surprise to her and raised the possibility that there was a difficulty with the process that they had undergone. I am uncertain from reading the applicant’s affidavit as to whether the applicant thought that she and the respondent had undergone a solemnised ceremony, in particular a ceremony that would be recognised in Country C, and therefore in Australia.

11. That proposition would seem inconsistent with the stated plan that upon their return to Australia they would undergo a formal ceremony of marriage. All of that, however, may not be of any great contention until a consideration is given to the respondent’s affidavit of 22 June 2018. He says that they researched what was required in order to be married in Country C and the following passage is relevant:

    4. … [W]e decided that it would be easier for us to fulfil the formal requirements for marriage if we were married in Australia rather than in [Country C].

    5.However, upon our return to Australia we didn’t get married in Australia either.

12. The clear implication from the respondent is that he had an understanding that they did not fulfil any requirements in respect of a valid marriage in Country C, hence the decision that they would marry in Australia rather than in Country C. That they did not do so is a matter of either oversight or subsequent decision.

13. At [6] of the affidavit, he refers to the purported marriage certificate:

    … Although we had decided not to get formally married in [Country C], we still wanted something on paper to record our ceremony in [Country C]. Prior to traveling to [Country C], [Ms Sirnam] and I searched on Google for examples of Marriage Certificates that were available online. We found one that we both liked, and we printed it on some nice-looking paper, and took it with us to [Country C]. We brought the marriage certificate to the ceremony, where it was signed by us and the pastor.

14. The clear implication, notwithstanding that there is a significant disparity between the matters raised by the applicant in [17] and the respondent in [6] is that the marriage certificate, as far as the respondent was concerned, was prepared in Australia and taken with them to Country C. The applicant says that the marriage certificate was provided by the pastor.

15. On the respondent’s case that simply could not be the case. He understood the providence of the certificate, and that was that it was as a result of a Google search and it was taken with them. It may have had some relevance to the parties as some sort of sign of commitment, given that they were holding a party in Country C, but at least as far as the respondent was concerned there was no circumstance where he understood that what they were taking with them was a document that would be recognised by the Country C authorities. In any event, no documents were lodged with the Country C authorities.

16. I am uncertain as to the applicant’s position in relation to the respondent’s allegations, but counsel for the applicant agrees now that the respondent’s version of events in terms of the provenance of the marriage certificate is correct, namely that it was a Google search. If that is so, then by necessary implication the further assertion of the respondent, namely that it was printed in Australia and taken with them to Country C, must also be accepted.

17. The summary of Mr D’s opinion is that detailed requirements were not adhered to under any of the categories of marriage to be considered by the Country C. She considered that the couple were not validly married in Country C, and says:

    Most importantly, they do not hold a marriage certificate issued by a relevant authority, nor was the marriage registered with the local civil registrar. I believe it to be highly unlikely that a Country C judge would rule a marriage to have taken place in the absence of any legal documentation proving the stipulated rules had been followed.

18. The Court is being asked to make a declaration of invalidity, and whilst there is clear power to do so pursuant to s 113 of the Family Law Act 1975 (Cth), and by reference to paragraph (b) of the definition of matrimonial cause in subsection (4)(i) it is important to consider the justification for the Court to undertake the inquiry.

19. The concern is as to the purpose for the application. If there were some issue as to the validity of this marriage, then it seems to me an application for invalidity should have been made in Country C. One party is not currently resident in Australia.

20. There is nothing in the affidavit’s which suggests why the declaration is necessary and it could not even be said that it’s out of an abundance of caution in circumstances where:-

    a)The parties understood they were not getting married, there was no process which had any formality to it;

    b)The marriage certificate was not a Country C document but a document that the parties creatively manufactured via a Google search on nice looking paper; and

    c)At all times the parties understood that whatever it was that they were doing, they were not going through a marriage.

21. Whilst it is proper for parties to approach this court for an order of invalidity if there is a basis for the court to assist the parties, but in the circumstances of this case the Court does not need to assist the parties, because there is nothing to correct.

22. The declaration that is sought is not justified in the sense that there is no mischief to which it is directed. There is no suggestion the parties were married. They do consider that they were married. There is nothing from Country C which suggests that they might be married, and the parties have concluded their proceedings in this Court, in respect of property matters, entirely satisfactorily.

    In those circumstances, I do not propose to exercise my discretion to grant a declaration that whatever the parties underwent in Country C should be declared as invalid. If there is not even the spectre of a marriage, it seems inappropriate for this Court to engage in the process at all. In those circumstances, I propose to do no more than to dismiss the Initiating Application. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 September 2018.

Associate: 

Date:  29 October 2018