Victor & Melway

[2009] FamCA 125

FAMILY COURT OF AUSTRALIA

VICTOR & MELWAY [2009] FamCA 125

FAMILY LAW – MARRIAGE – DECLARATION – urgent application seeking declaration as to the nature of the relationship between the parties – declaration not contested by the respondent – where the applicant was mistaken that the parties were married and subsequently divorced – where the parties never took part in a marriage ceremony – declaration pursuant to s 113 that the relationship between the parties was not a marriage within the meaning of the Marriage Act 1961 (Cth)

Family Law Act 1975 (Cth) s 113
Marriage Act 1961 (Cth) ss 41, 42 & 44

In the Marriage of Tansell and Tansell (1977) FLC 90-307
In the Marriage of Espie and Espie (1983) FLC 91-347
T & T [2005] FamCA 302

APPLICANT: Mr Victor

RESPONDENT: Ms Melway

FILE NUMBER: ADC 432 of 2009

DATE DELIVERED: 24 February 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 18 & 24 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WOOD

SOLICITOR FOR THE APPLICANT: ALDERMAN REDMAN

COUNSEL FOR THE RESPONDENT: NOT APPLICABLE

SOLICITOR FOR THE RESPONDENT: RESPONDENT IN PERSON

IT IS DECLARED:-

1. Pursuant to s 113 of the Family Law Act 1975 (Cth) that the relationship between MR VICTOR born … March 1971 and MS MELWAY born … April 1974 was not a marriage within  the meaning of the Marriage Act 1961 (Cth).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 432  of 2009

MR VICTOR

Applicant

And

MS MELWAY

Respondent

REASONS FOR JUDGMENT

1. I have before me for determination an Initiating Application filed on 9 February 2009.  The applicant MR VICTOR who was born in March 1971 seeks a declaration that his relationship with MS MELWAY who was born in April 1974 was not a marriage within the meaning of the Marriage Act 1961 (Cth).

2. The applicant seeks this declaration by the Court urgently to enable him to marry his current partner, Ms T, in March 2009.  Mr Victor has outlined in his affidavit the arrangements which have been made in preparation for this wedding.  It is unnecessary for present purposes to refer to those details, other than that the applicant and his partner have incurred considerable costs in preparation for the anticipated wedding.

3. Although not specified in the Application itself, such a declaration is sought pursuant to s 113 of the Family Law Act 1975 (Cth), which gives the Court the power, in proceedings for a declaration as to the validity of a marriage or divorce, to make such declaration as is justified. A declaration under s 113 is a discretionary remedy. (See In the Marriage of Tansell and Tansell (1977) FLC 90-307) A declaration is “justified” where there are satisfactory or adequate grounds for making such a declaration. (See In the Marriage of Espie and Espie (1983) FLC 91-347 and T [2005] FamCA 302 (unreported)).

4. Pursuant to s 42(1)(a) of the Marriage Act 1961, notice must be given of an intended marriage at least 1 month prior to the date of the marriage. The need for this application and a declaration by the Court regarding the relationship between the parties arose when the applicant completed a Notice of Intended Marriage in preparation for his upcoming marriage to Ms T. Mr Victor indicated on that Notice that his conjugal status was ‘divorced’, which at that time he believed to be correct. Mr Victor informs the Court that this Notice was never lodged with the Office of Births, Deaths and Marriages. The marriage celebrant, as required by s 42(10) of the Marriage Act, asked that Mr Victor provide her with a copy of the Decree of Divorce, which he did not have in his possession.  When Mr Victor contacted the respondent Ms Melway regarding this, he was informed that she had not sought a divorce as the parties were never married.

5. According to Mr Victor, he is unable to now lodge a Notice of Intended Marriage indicating his conjugal status as single, as the Registry have been placed on notice that there is some question as to whether a marital relationship existed between the applicant and the respondent.  Mr Victor states that his name has now been “flagged” and that the Registrar requires a declaration from this Court that the parties were never in fact married.

6. The applicant states that until recent discussions with the respondent, he mistakenly believed that the parties had married and that the respondent had later obtained a divorce.

7. According to the applicant, the parties commenced a relationship in or about January 1993 and commenced cohabitation around that time.  He states that the parties were in a relationship for ten years, living together at various times during this period, and that they finally separated in or about 2004.  He acknowledged, as did Ms Melway, that there was no sexual relationship between them and that they cohabited essentially as friends.  They became known to each other through their mothers.

8. The applicant admits that he suffered from drug dependency during the majority of the relationship, smoking marijuana on a regular basis.  The applicant submits that due to his marijuana use, he has no “meaningful recollection” of significant portions of his relationship with Ms Melway. 

9. The applicant says it was his understanding that the parties had married early in their relationship, although he could not recall the ceremony, which he attributed to being under the effects of marijuana.

10. The applicant submits that the parties had a volatile relationship, and that in 2003, following an argument, the respondent asked him to sign a document.  According to the applicant he was under the influence of marijuana at the time of signing this document and presumed it to be for the dissolution of the parties’ marriage and that the parties became divorced at that time.  He has now been informed by the respondent that the document was in fact a Residential Tenancy Agreement. 

11. Ms Melway gave evidence this morning as she did on 18 February 2009 by telephone as she currently resides in Victoria.  She affirmed the evidence given by the applicant today and confirms that they were never in a de facto relationship and certainly were never married. It was a relationship of convenience and mutual support and friendship. She does not contest the declaration sought by the applicant and indeed confirms that it is appropriate to grant the application as they were never married and hence can never be divorced.

12. The formalities required for a marriage are outlined in Part IV of the Marriage Act. As previously mentioned, s 42 deals with notice of an intended marriage, the provision of necessary documents to the celebrant and the parties’ declaration. The formalities include the marriage being solemnized by or in the presence of an authorised celebrant (s 41) with at least two witnesses present (s 44).

13. I am satisfied from the evidence of both the applicant and respondent that the parties never took part in a marriage ceremony and were never married.  I accept that the applicant was mistaken as to the nature of his relationship with the respondent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  24 February 2009