Valen and Chirere
[2013] FamCA 595
•8 July 2013
FAMILY COURT OF AUSTRALIA
| VALEN & CHIRERE | [2013] FamCA 595 |
| FAMILY LAW – NULLITY – Whether consent obtained by fraud or duress – fraud goes to the nature of the ceremony or the identity of the parties – no evidence to support presence of fraud or duress – application dismissed |
| Marriage Act 1961 (Cth), s 23B(1) |
| Hosking v Hosking (1995) FLC 92-579 Aird & Hamilton-Reid [2007] FamCA 4 |
| APPLICANT: | Mr Valen |
| RESPONDENT: | Ms Chirere |
| FILE NUMBER: | CAC | 2002 | of | 2012 |
| DATE DELIVERED: | 8 July 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 8 July 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Mr Bak, Farrar Gesini & Dunn |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
The Application for Nullity filed at this Court on 24 December 2012 is refused.
The matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valen & Chirere 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 CANBERRA |
FILE NUMBER: CAC 2002 of 2012
| Mr Valen |
Applicant
And
| Ms Chirere |
Respondent
REASONS FOR JUDGMENT
The initiating application filed by Mr Valen on 24 December 2012 sought, in effect, an order for nullity, or annulment of the marriage between him and Ms Chirere, which was solemnised in 2011. It was agreed very early in the proceedings that the final orders sought in that document (orders for a refund of money paid by the applicant to the respondent’s sisters) are not relevant to the proceedings currently before the Court.
The grounds on which the marriage might be found to be void are set out in the Family Law Act 1975 (Cth) (“the Act”) by reference to the Marriage Act 1961 (Cth) and only on the grounds that the decree may be made under – on that basis. Section 23B of the Marriage Act says that:
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:
And there are a series of alternatives stipulated under the Marriage Act. The one relied upon by the applicant is: (d):
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony provided; or
(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony …
In this case, subsection 23B(1)(d)(iii) was not relied upon.
It was submitted that the evidence established that the consent of the applicant was obtained by duress and also obtained by fraud. The Marriage Act does not require that there must have been both duress and fraud. Rather. The Marriage Act requires that it is one or the other.
In respect of the question of duress, Mr Bak, in his comprehensive submissions on behalf of the applicant, had set out from the evidence the circumstances which he said constituted the duress involved. This was derived from paragraph 17 of the applicant’s affidavit filed on 28 May 2013. In that paragraph the applicant said he felt “pressured to marry [the respondent].” That, in itself, is not evidence of duress but was only, obviously, an introductory comment in relation to the things that followed. I have already discussed, in the course of the proceedings before me, the nature of the allegations that followed in paragraphs 18, 19 and 20 and I have indicated – and I don’t repeat for the sake of this judgment – that the representations suggested by the applicant as to what would happen after the parties were married are not necessarily agreed to by the respondent and did not, in the circumstances, constitute duress, notwithstanding that it might be thought, as he has a disability, that Mr Valen may have been unreasonably susceptible.
Part of the problem in this regard is that there is no evidence about the nature of his disability or about the way in which a promise, which would not ordinarily constitute pressure or duress, might affect the applicant differently from the way it affects others. Accordingly, there is no basis upon which it could be established that the consent of the applicant to the marriage was obtained by duress.
So far as fraud is concerned, it seems clear that the parties were who they purported to be. No one was under any misapprehension as to who the other person was. The parties had known each other for some months before the marriage occurred.
The applicant says he made it clear to the respondent that he was a person who had a disability and who, therefore, would be perhaps different from what she might have expected from a husband. There was some discussion between them about the consequences of marriage and other things, including, on the part of the applicant, he says, a clear indication that if the parties were married then there would be some difficulties with his pension which he did not want to lose.
There is no doubt the parties entered into a marriage ceremony and the applicant produced photographs which showed that the ceremony was in a traditional form. The appropriate marriage certificate issued at the end of the marriage ceremony and there is no basis upon which it could be suggested that the parties were under any misapprehension as to the nature of the ceremony or as to their respective identities. Notwithstanding some authority which would indicate a wider definition of the term “fraud”, the appropriate line of authority is that fraud should relate and be confined to the identity of the parties or the nature of the ceremonies.[1] And I note that as recently as 2007, this was affirmed in the decision by Watt J (as his Honour then was)[2] about the circumstances which, indeed, were quite different from these.
[1] Hosking v Hosking (1995) FLC 92-579, in particular 81,749.
[2] Aird & Hamilton-Reid [2007] FamCA 4.
I am not satisfied there is any fraud or any duress and, accordingly, the application must be dismissed.
It was agreed, previously, that there would be some basis upon which, the parties might proceed to obtain a divorce if this application were refused. Unfortunately, in the course of the evidence today, it became clear that the respondent has taken the view that the marriage did not come to an end until December 2012. Accordingly, for the ground for divorce to be made out, it would be necessary, so far as the respondent is concerned, for the divorce application to be made after December of this year, or during December of this year.
Section 44(1B) and (1C) require, effectively, special leave of the Court to institute proceedings for divorce within two years after the date of marriage. It being now some 15 days short of those two years would not have constituted an impediment and, indeed, if an application for divorce were made by the applicant, in which he asserts the marriage ended at an earlier date from that indicated by the respondent, the respondent may choose not to defend the proceedings, whether or not she believes differently as to when the marriage came to an end. In those circumstances, a divorce may be obtained.
However, it seems that whether or not that course of action were undertaken, a divorce application instituted in December of this year would bring both agreement and, to that extent, a relatively early end to the marriage. In this matter, the applicant’s application for nullity, filed in this Court on 24 December 2012, is refused. The matter is removed from the pending cases list.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 8 July 2013.
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