Tristan & Ernt

[2008] FamCA 333

FAMILY COURT OF AUSTRALIA

TRISTAN & ERNT [2008] FamCA 333

FAMILY LAW  - NULLITY -  application for declaration that marriage void on grounds husband lawfully married to another at time of marriage.

Marriage Act 1961 (Cth)

APPLICANT: Mr Tristan

RESPONDENT: Ms Ernt

FILE NUMBER: DGC 358 of 2008

DATE DELIVERED: 2 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 2 May, 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.A. Pannifex

SOLICITOR FOR THE APPLICANT: Christine J. Shanahan & Assoc.

FOR THE RESPONDENT: No appearance

Orders

1. That service on the respondent be dispensed with.

1. That the marriage solemnised at … Arizona in the United States of America on … July, 1978 is declared to be absolutely null and void. 

1. That the applicant have leave to withdraw the application for divorce filed on 5 February, 2008. 

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 358 of 2008

MR TRISTAN

Applicant

And

MS ERNT

Respondent

REASONS FOR JUDGMENT

1. On 5 February, 2008 the applicant, Mr Tristan, filed an application for divorce in respect of a marriage which is registered as having taken place in July, 1978 in Arizona.  That application was listed before a registrar in the Federal Magistrates Court on 19 March.  The registrar transferred it to a federal magistrate for hearing.  It came before Hughes FM in March.  She, realising that the circumstances deposed to were supportive of an application for nullity rather than an application for a divorce, transferred it to this court, as the Federal Magistrates Court does not have jurisdiction to declare a marriage void. 

2. On 30 April 2008 the applicant filed another application in this court in which he sought that the application for divorce be dismissed and that a decree of nullity be granted in respect of the marriage.  Although that application did not specifically seek that service on the respondent be dispensed with, that is referred to in paragraph 16 of the affidavit the applicant filed in these proceedings on 5 February.  He filed a second affidavit on 30 April.

3. The United States marriage certificate numbered … in Arizona records that on … July 1978 the applicant married Ms Ernt, at … in … County.  The applicant's evidence is that he knew nothing of that marriage until 2006 when he applied to the United States Department of Homeland Security to migrate to Hawaii, to live with a woman who he refers to in his affidavit as his current wife.  In other parts of that material he refers to their intention to marry.  She is an American citizen, resident in Hawaii.  The husband met with officers of the relevant United States department.  In the course of that interview they told him of this record of marriage. 

4. The husband’s evidence is that he spent 28 days in Arizona in 1978, on leave from his then job.  He describes the time as one of partying and drinking.  He recalls meeting Ms Ernt.  He has no recollection whatsoever of going through any form of ceremony of marriage with her, or of discussing marriage, or of anything referrable to marriage. At that time, in 1978, the husband was separated from his first wife, B, whom he had married in April 1966.  They were not divorced.  The evidence satisfies me that a decree nisi of dissolution of that marriage was not pronounced until 22 July 1981, becoming absolute on 23 August 1981.  He was thus married to his first wife, B, at the time of the alleged marriage to Ms Ernt in July 1978.

5. Records obtained in the course of his solicitor's endeavours to ascertain what happened in the United States show that Ms Ernt subsequently married Mr R on or about … June 1993 in Arizona. That marriage was subsequently dissolved by the Supreme Court of Arizona on 13 January 2000, and a copy of the judgment and the orders made that day is before the court.  If Ms Ernt was, indeed, married to the applicant in 1978, she must have either successfully filed for a divorce somewhere and, presumably, obtained an order dispensing with service (as the applicant in this court now seeks to do) or her marriage to Mr R was bigamous. 

6. It is not necessary for the purposes of this decision to go through the applicant's subsequent history of marriage and divorce, save to note that he married T in June 1998 and a decree nisi of dissolution of that marriage became absolute on 6 April 2003.

7. The application was originally made on the basis of s.23 of the Marriage Act 1961 pursuant to ss.(1)(a) or (1)(d). Section 23(1)(a) provides that:

   A marriage that took place on or after 20 June 1977 and before the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   (a) either of the parties was, at the time of the marriage, lawfully     married to some other person.

8. Section 23(1)(d) provides that the marriage will also be void in those circumstances if the consent of either of the parties was not a real consent. That can relate to duress or fraud, a mistake as to the identity of the other party, a mistake as to the nature of the ceremony performed, or mental capacity.

9. Counsel appearing for the applicant relied on a decision of Lindenmayer J in In the Marriage of Tevis and Campomayor (1995) FLC 92 578. That, too, was a case of an overseas marriage although both the parties were citizens of the Philippines at the time that marriage occurred. In the course of the judgment, his Honour discussed the applicable statutory provision when an applicant sought a declaration that a marriage was void and that marriage had been conducted in a foreign country. His Honour determined that in those circumstances the application should be heard within the confines of s.88D(2) of the Marriage Act 1961. The section, which relates to validity of marriages, provides that a marriage to which that part of the Act applies (being Part VA - Recognition of Foreign Marriages) shall not be recognised as valid if 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, recognized in Australia as valid.

10. In paragraphs 22 to 24 of his judgment Lindenmayer J. set out the process of reasoning by which he came to accept a submission to that effect, and I find the analysis sound. 

11. I am satisfied that service on the respondent should be dispensed with.  The applicant has made diligent inquiries in an attempt to find her whereabouts.  They have been unsuccessful.  Having regard to the evidence of her subsequent marriage and divorce, it is difficult to see how the respondent could be prejudiced by this case proceeding in her absence.  Service on her will be dispensed with.

12. I am satisfied having regard to the certificate of marriage, that the applicant was married to Ms Ernt at …, … County, Arizona, on … July 1978.  I am satisfied that at that time the applicant was lawfully married in Australia to B, whom he had married in April 1966, and that that marriage existed at the time of the marriage to Ms Ernt.

13. In those circumstances, I find that the marriage of … July 1978 in Arizona is not recognised as valid pursuant to s.82D(2)(a) of the Marriage Act 1961. For the reasons adumbrated by Lindenmayer J, that leads to a conclusion that a declaration of nullity should be made and the marriage declared void.

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.