Song and Huang

[2016] FamCA 78

FAMILY COURT OF AUSTRALIA

SONG & HUANG [2016] FamCA 78

FAMILY LAW – VALDITY OF MARRIAGE

Family Law Act 1975 (Cth)
Marriage Act 1961

APPLICANT: Ms Song

RESPONDENT: Mr Huang

FILE NUMBER: SYC 6017 of 2015

DATE DELIVERED: 3 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 3 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Phillip Silver & Associates

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. I grant a Decree of Nullity of the marriage on … 2014 between the Applicant Wife, MS SONG and the Respondent Husband MR HUANG.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6017 of 2015

Ms Song

Applicant

And

Mr Huang

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant seeks a Decree of Nullity of Marriage to the respondent based on the ground that the marriage is void. The respondent is personally present in court today and he joins in the applicant’s application for a decree of nullity of his marriage to the applicant. The purpose of the applicant’s application is to enable herself and the respondent to enter into a new valid marriage in Australia. The applicant and respondent continue to live as man and wife together in Sydney.

2. Section 51 Family Law Act 1975 provides that an application for a decree of nullity of marriage shall be based upon the ground that the marriage is void.

3. Section 23B(1)(a) of the Marrage Act 1961 provides:

   (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;

4. The relevant factual background is that the applicant and Mr B were married in Country C in 2010. They separated on 15 March 2011. The applicant in her evidence says that, as a result of matters that she sets out, she had formed the impression that her former husband had done what was necessary to legally end their marriage in Country C.

5. She says in those circumstances she entered into a marriage under Australian law to the respondent. That marriage took place in 2014. The applicant’s evidence is that in 2015 she became aware that her understanding as to her marital status in 2014 was incorrect and there had not been a dissolution of her Country C marriage. She says she executed an application for divorce in relation to her former marriage in Country C to Mr B on 16 January 2015 and that divorce was made absolute on 20 May 2015.

6. I am satisfied that at the time of the marriage of the applicant and respondent in Australia on 16 March 2014, one of the parties to that marriage, namely the wife, was lawfully married to some other person. Consequently, a ground is established on which the marriage of the applicant and respondent on 16 March 2014 is void.

7. Upon that ground, I grant a decree of nullity of the marriage in 2014 between the applicant and the respondent.

I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 3 February 2016.

Associate: 

Date:  15.2.16