THANG & LUA

[2019] FamCA 195

FAMILY COURT OF AUSTRALIA

THANG & LUA [2019] FamCA 195

FAMILY LAW – NULLITY – Where the application for a decree of nullity is not opposed by the respondent – Where the applicant was mistaken as to the nature of the ceremony –Where the marriage is not valid by reason of s 48 of the Marriage Act 1961 (Cth) – decree of nullity granted.

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

Najjarin v Houlayce (1991) FLC 92-246

APPLICANT: Mr Thang

RESPONDENT: Ms Lua

FILE NUMBER: BRC 21 of 2019

DATE DELIVERED: 1 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 1 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Clift

SOLICITOR FOR THE APPLICANT: T Lawyers Pty Ltd

FOR THE RESPONDENT: Self-represented

Order

1. It is declared that the marriage solemnised between Mr Thang and Ms Lua in 2018 is void.

2. A decree of nullity in relation to that marriage is granted.

3. It is requested that the Senior Registrar refer this Order and the Reasons for Judgment to the Attorney General’s Department (Cth) for consideration of what, if any, action should be taken against the marriage celebrant Mr B and/or the migration agent Mr C.

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 Thang & Lua 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 BRISBANE

FILE NUMBER: BRC 21 of 2019

Mr Thang

Applicant

And

Ms Lua

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant seeks a declaration that the marriage ceremony entered into between him and the respondent in 2018 is void and for a decree of nullity to be granted.

2. The respondent did not file any material in response to the application and the hearing of the application proceeded on an undefended basis although the respondent attended in person and the Court arranged for the application and accompanying material to be translated to her. She confirmed through an interpreter that she had been read the application and supporting material and did not oppose the application.

BACKGROUND

1. The applicant is 20 years old and the respondent is 22 years old. The applicant and the respondent met and started dating in 2017 and moved in together in  2018.

2. The respondent is an international student which requires her to hold a valid student visa to study in Australia. Her visa was due to expire in 2018. In about July 2018 the parties attended upon a migration agent named Mr C to seek advice about their options to extend the respondent’s stay in Australia.

3. The applicant advised Mr C that he did not want to be married as he believed that he and the respondent were too young to be married. Mr C advised the parties that they could apply for a de facto partner visa to allow the respondent to extend her stay in Australia and referred them to a Mr B. The applicant believed that Mr B would assist the parties in signing a ‘commitment certificate’ in order to confirm that the parties were in a de facto relationship and subsequently permit them to apply for the necessary visa.

4. The parties agreed to hold a small celebration on 28 October 2018 in recognition of the registration of their de facto relationship and planned the ceremony to take place at a restaurant in Suburb D in South-East Queensland whereupon they would sign the commitment certificate to register their de facto relationship. The parties invited approximately 15 of their friends and family to the ceremony. Prior to this day, the applicant had not met Mr B.

5. The applicant deposes in his affidavit filed 2 January 2019 that his English is “not good” and that he is only able to read and write simple things in English such as his name and address, having only arrived in Australia in June 2017. Since his arrival in Australia, the applicant has worked at a restaurant where the primary language used is a South East Asian one and he has socialised primarily with non-English speakers.

6. The applicant further deposed in his affidavit filed 2 January 2019 that on the day of the ceremony:

   a)Mr B attended the restaurant with some documents that needed to be signed

   b)when he and the respondent signed the documents prepared by Mr B there were, other than Mr B, no witnesses present;

   c)Mr B did not explain the nature of the documents that they were signing

   d)he and the respondent did not say any vows to each other or exchange rings; and

   e)upon the arrival of the parties’ guests about 20 minutes later, Mr B approached two people and asked them in a South East Asian Language to “sign here, as witness”.

7. Later in the evening, the applicant’s older sister asked to see the documents which had been signed after which the applicant was informed that he had actually signed a certificate of marriage as well as a notice of intention to marry which had been backdated to 7 September 2018.

RELEVANT LEGAL PRINCIPLES

1. The application is made pursuant to section 51 of the Family Law Act 1975 (Cth) (“the Act”), and the only ground upon which a decree of nullity may be granted is that the marriage is void.

2. Section 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) relevantly provides:

   (1)A marriage is … void where:

   (a)…

   (b)…

   (c)By reason of section 48 the marriage is not a valid marriage;

   (d)The consent of either of the parties is not a real consent because:

   (i)…

   (ii)That party is mistaken … as to the nature of the ceremony performed; or

   (iii)…

   (e)…

   and not otherwise.

3. Section 48 of the Marriage Act relevantly provides:

   (1)Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division[1] is not a valid marriage.

   (2)A marriage is not invalid by reason of all or any of the following:

   (a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;

   (b)…

   (c)…

   (d)failure to comply with any other requirement of section 42, or any contravention of that section;

   (e)failure to comply with the requirements of sections 44 (witnesses) or 46 (explanation of nature of marriage relationship in front of parties and witnesses);

   (f)…

   [1] Division 2 comprises sections 40 to 51.

4. Section 45 of the Marriage Act[2] relevantly provides:

   [2] Section 45 is part of Division 2 but is not an exception referred to in s 48.

   (1)      …

   (2)Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion, it is sufficient if each of the parties say to the other, in the presence of the authorised celebrant and the witnesses the words:

   “I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband, or spouse)”;

   or words to that effect.

   (3)Where a marriage has been solemnized by or in the presence of an authorised celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnised in accordance with this section.

   (4)        Nothing in subsection (3) makes a certificate conclusive:

   (a)where the fact that the marriage ceremony took place is in issue—as to that fact; or

   (b)…

5. Section 50 of the Marriage Act relevantly provides:

   (1)      …

   (2)  Immediately after the solemnisation of the marriage, the authorised celebrant, each of the parties to the marriage and 2 witnesses of the marriage … shall sign each of the certificates so prepared.

   …

6. The legislation makes clear that notwithstanding the presumption created by s 45(3), in instances where the parties dispute the fact that a marriage took place, s 45(4) operates to rebut that presumption.[3] But in any event, it does not appear that s 50 was complied with in that there were no witnesses to the ceremony other than Mr B and the witnesses who signed the form were approached by Mr B upon their arrival at the venue after the ceremony.

   [3]Najjarin v Houlayce (1991) FLC 92-246 at 78, 672.

DISCUSSION

1. The applicant submits that the marriage is void either because the marriage is not valid by reason of s 48 of the Marriage Act and/or that his consent was not a real consent because he was mistaken as to the nature of the ceremony performed.

2. The applicant need only establish one ground however I am comfortably satisfied that both grounds relied upon are satisfied on the evidence.

3. The marriage is not valid by reason of s 48 of the Marriage Act because s 45 was not complied with because:

   a)The celebrant did not say words to the effect as set out in s 45(1); and

   b)The presumption of validity by reason of production of the marriage certificate does not apply because the fact of the marriage ceremony taking place is in issue (s 45(4)(a)) and the certificate does not appear to comply with s 50 (s 45(3)).

4. I am also satisfied that the marriage is void because the applicant was mistaken as to the nature of the ceremony. He has very little understanding of either written or spoken English and was of the understanding that he and the respondent were involved in a commitment ceremony i.e. that they were in a de facto relationship. He did not intend to marry and would not have done so if he had known the true nature of the ceremony.

5. I am concerned about the conduct of the marriage celebrant and the migration agent. It seems to me that something of a rort may have been engaged in although I cannot conclude that the migration agent knew anything about it even though he referred the applicant to the marriage celebrant. I propose to refer the papers to the Attorney General’s Department (Cth) for investigation of what, if any, action should be taken against the marriage celebrant and/or the migration agent.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 1 April 2019.

Associate:

Date:  2 April 2019