Sullivan and Gin

[2010] FamCA 800

FAMILY COURT OF AUSTRALIA

SULLIVAN & GIN [2010] FamCA 800

FAMILY LAW – NULLITY – Application for decree of nullity – Whether consent obtained by fraud – Grounds on which marriages are void – Application dismissed

APPLICANT: Mr Sullivan

RESPONDENT: Ms Gin

FILE NUMBER: BRC 6188 of 2010

DATE DELIVERED: 23 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 23 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Husband appearing in person

COUNSEL FOR THE RESPONDENT: No appearance by the Respondent Wife

Orders

IT IS ORDERED THAT:

1. The Husband’s application for decree of nullity filed on 5 July 2010 is dismissed.

2. All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6188 of 2010

MR SULLIVAN

Applicant

And

MS GIN

Respondent

REASONS FOR JUDGMENT

1. The parties were married in November 2009.  A certificate of marriage has been filed with the application.  In considering a decree of validity of marriage, the relevant section is section 23B - grounds on which marriages are void.

2. Marriages are void only on the following bases:  where either of the parties is lawfully married to some other person at the time of the purported ceremony;   the parties are within a prohibited relationship; by reason of section 48 the marriage is not a valid marriage because it was obtained by duress or fraud; or that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or the party is mentally incapable of understanding the nature and effect of the marriage ceremony; or either of the parties is not of marriageable age.  They are the sole grounds that can be made out for a decree of nullity.

3. In the affidavit material that has been produced to the Court, the applicant suggests that various representations were made to him by the respondent that she had a job and that she owned a residential property worth $200,000.  He subsequently found out it was only worth some $140,000 and had an equity value of only about $20,000.  The nature of the representations went to her financial capacity.  The parties separated in April this year.

4. I would note in passing the husband was very wise when he rebuffed the inducements of the respondent to sign the house over to him so that she could manage his financial affairs.  I do not think he would have seen too much of the money had he done that, premised on the contents of his affidavit being correct.

5. The ground of fraud referred to in section 23B relates, as I understand the authorities to which I am about to refer, to the nature of the ceremony.  It does not relate to the obtaining of the consent to marriage by various representations or inducements.  In a decision by Lindenmayer J in 1994 he refers to a case of Moss & Moss, an English authority.  Where there is consent, no fraud inducing that consent is material.  It goes on to say:

   Error about the family or fortune of the individual, though procured by disingenuous representations, does not at all affect the validity of the marriage.  It is perfectly established that no disparity of fortune or mistake as to the qualities of the person would impeach the vinculum of marriage.

6. The court also noted:

   The strongest case you could establish of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this Court to release him from chains which, though forged by others, he had riveted on himself.  If he is capable of consent and has consented, the law does not ask how the consent was induced.

7. More recently, the issue was considered by the Full Court of this Court in K & S [2003] FamCA 136. The previous citation of Lindenmayer J’s decision was Hosking & Hosking (1995) FLC 92-579. In the matter of K & S, the Full Court, Ellis, Finn and Mushin JJ, held, when quoting from a New Zealand authority:

   This passage has generally been interpreted as meaning that the marriage is void because the purported consent was given to something other than a marriage, or to a marriage with someone other than the person physically standing at the alter.  But if a person wishes to go through a ceremony of marriage with a person whose identity he or she is aware of, then it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together forever after.

   For if it were a ground that a marriage could be annulled on the ground that a party was defrauded as to the intention to cohabit, where should the Court draw the line?  Love and affection are also regarded as essential to a marriage, at least in the 20^th century.  Would lack of love base an application for annulment?  Again, the production of offspring is a traditional concern of marriage.  Would a deception as to the intention to bear them or procreate them found an application?  Where does one draw the line between attributes such as wealth, virtue, beauty or potency on one hand, and the fundamentals of marriage, such as cohabitation, mutual love and support, and the procreation of children of the parties?

8. Having regard to the test applied in the cases cited above I am not satisfied on the evidence before me that the ground of nullity has been made out.

9. The application for decree of nullity filed on 5 July 2010 is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 23 August 2010.

Associate: 

Date:  23 August 2010