Tamang & Tamang
[2022] FedCFamC1F 1049
Federal Circuit and Family Court of Australia
(DIVISION 1)
Tamang & Tamang [2022] FedCFamC1F 1049
File number(s): PAC 5238 of 2022 Judgment of: RIETHMULLER J Date of judgment: 23 November 2022 Catchwords: FAMILY LAW – NULLITY – Where decree of nullity is sought – Where the respondent husband was still married to another person at the time of the subject marriage – Decree of nullity made. Legislation: Marriage Act 1961 (Cth) ss 5, 23B, 88C, 88D, 88G Cases cited: Naderi & Adib [2019] FamCA 1055 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 23 November 2022 Place: Parramatta Solicitor for the Applicant: Did not participate Solicitor for the Respondent: Litigant in person (did not participate) ORDERS
PAC 5238 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TAMANG
Applicant
AND: MR TAMANG
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
23 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The marriage between Ms Tamang and Mr Tamang solemnised in 2017 in Country B is not recognised as a valid marriage in Australia.
2.That there be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
This is an application for a declaration that the marriage between the applicant and the respondent is a nullity or, alternatively, void according to Australian law.
Background
On 23 September 2022, the applicant filed a particularly brief affidavit in support of the Application for Final Orders, setting out that she and the respondent married in 2017 in Country B. The applicant has discovered that the respondent was previously married in 2016 in Country B, as is evidenced by a marriage certificate, a copy of which she annexes to her affidavit. She also annexes her marriage certificate from her marriage to the respondent in Country B. Both marriage certificates are in Country B language and contain a certification for registration in English. The applicant also produced a certified translation by a Country B language translator, recognised by the National Accreditation Authority for Translators and Interpreters (“NAATI”).
On the evidence produced by the applicant, and noting the evidentiary aid set out in s 88G of the Marriage Act 1961 (Cth) (“the Act”), I am persuaded that the applicant did marry the respondent in 2017, and that the respondent was previously married to another woman in 2016.
I turn then to consider whether or not the marriage should be recognised as a valid marriage in Australia. There is no evidence before me to show that the marriage is not a valid marriage in Country B. Whether Country B has different marriage laws for different religious groups (in the way in which Country C has different matrimonial schemes) is not a matter that is in evidence before me, nor a matter about which I am familiar. On the limited material before me in this case, I proceed upon the assumption that the second marriage is valid in Country B but stress that I do not make any declaration or formal finding to that effect. If the second marriage is not a lawful marriage according to the laws of Country B, then it cannot be recognised as a lawful marriage in Australia, pursuant to the Act, however there is no evidentiary basis to make such a finding on the material before this court.
The nature of marriage in Australia is that it is a “union between two people to the exclusion of all others, voluntarily entered into for life”: as defined in s 5 of the Act. The definition has broadened somewhat since same sex relationships have been recognised, but the fundamental nature of the union being between two people and not more remains the same. In this circumstance, a marriage to a second person whilst currently married is not a valid marriage in Australia (see s 23B of the Act) and, indeed, in most States it remains a criminal offence of bigamy. This second marriage, however, was solemnised in Country B and not in Australia.
The question then arises as to whether or not the applicant’s foreign marriage should be recognised under the Act. Section 88C of the Act provides for recognition of foreign marriages conducted in accordance with the local law where the marriage was entered into. There are a number of significant restrictions upon the operation of this provision, set out in s 88D of the Act. Section 88D(2) of the Act provides for a number of circumstances where marriages will not be recognised as valid in Australia, and specifically, s 88D(2)(a) provides as follows:
88D Validity of marriages
…
(2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
(a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last‑mentioned marriage was, at that time, recognised in Australia as valid
In this case, the first marriage of the respondent, as evidenced by the marriage certificate annexed to the applicant’s affidavit filed 22 September 2022, appears to me to be a marriage that would be recognised as valid in Australia under the provisions of the Act, namely a marriage solemnised in accordance with the law of a foreign country: see s 88C of the Act. In these circumstances, the second marriage (between the applicant and respondent) falls squarely within the category of s 88D(2)(a) of the Act. I note that the same conclusion was reached by Forrest J in Naderi & Adib [2019] FamCA 1055.
In the circumstances, the only question that remains is whether or not the first marriage of the respondent had been annulled, or there had been a divorce or death of the first spouse prior to the second marriage. Given the young ages of the people involved and the close proximity in time, it seems that such events are unlikely. More importantly, the respondent filed a submitting notice, submitting to any order that the Court may make and provided no evidence to suggest that the first marriage that he had entered into had, in some way, come to an end or was in some way invalid.
Conclusion
In all of the circumstances I am persuaded there was a valid first marriage by the respondent and that therefore the second marriage between the applicant and respondent should not be recognised in accordance with the law of Australia, even if it was recognised as a valid marriage in Country B. I therefore make orders that the marriage of the applicant and the respondent solemnised in 2017 in Country B is not recognised in Australia as a valid marriage.
As the applicant has not sought any orders with respect to costs, the respondent is therefore not on notice of any costs application and I therefore make no order as to costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 21 December 2022
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