Valen and Chirere

[2013] FamCA 595

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

1. The Application for Nullity filed at this Court on 24 December 2012 is refused.

2. 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

1. 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. 

2. 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:

3. 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 …

4. In this case, subsection 23B(1)(d)(iii) was not relied upon.

5. 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…