VINH & NHAN

[2020] FamCA 410

FAMILY COURT OF AUSTRALIA

VINH & NHAN [2020] FamCA 410

FAMILY LAW – NULLITY – Application for declaration – Where at the time of the marriage the husband was married to another person – Declaration of nullity made.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B

APPLICANT: Ms Vinh

RESPONDENT: Mr Nhan

FILE NUMBER: PAC 1047 of 2020

DATE DELIVERED: 26 May 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Tran of My T Nguyen Solicitors

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders

1. That it is declared that the marriage between the applicant Ms Vinh and the respondent Mr Nhan conducted at the B Building, C Street, Suburb D in 2018 is a nullity.

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 Vinh & Nhan 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 PARRAMATTA

FILE NUMBER: PAC 1047 of 2020

Ms Vinh

Applicant

And

Mr Nhan

Respondent

REASONS FOR JUDGMENT

1. The applicant wife seeks a declaration that the marriage ceremony entered into between her and the respondent husband at the B Building, C Street, Suburb D on … November 2018 is void and for a decree of nullity to be granted.

2. The matter came before the Court on 14 May 2020. The applicant and her solicitor were in attendance on this date. There was no appearance by or on behalf of the respondent, however, an affidavit was filed by him on 11 May 2020 in which he deposes to having been served with the wife’s Application for Nullity and deposes that he consents to the application being granted. Judgment was then reserved in respect of the Application for Nullity.

Background

1. In 2010 the respondent married Ms F (“the first wife”) and the marriage was registered at H Place, Suburb K, L Region in Country G (Exhibit “B”).

2. Sometime thereafter the respondent moved to Australia for work. The circumstances surrounding the respondent’s separation from the first wife and the commencement of his relationship with the applicant have not been made clear to the Court.

3. The applicant and respondent married at the B Building, C Street, Suburb D in 2018 (Exhibit “A”). The conjugal status for the respondent on the Marriage Certificate is “never validly married” despite his marriage to the first wife.

4. The respondent and the first wife’s divorce was subsequently allowed in Country G in 2019 (Exhibit “C”).

5. On 2 March 2020 the applicant filed an Initiating Application and supporting affidavit seeking that her marriage to the respondent be declared null and void. The parties seek that the nullity be granted to allow them to remarry validly as soon as possible.

Applicable Law

1. Pursuant to s 51 of the Family Law Act 1975 (Cth) a decree of nullity may be granted on the ground that the marriage is void.

2. Section 23B (1) of the Marriage Act 1961 (Cth) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

3. In support of the Application for Nullity the applicant tendered and relied upon a copy of the respondent’s Marriage Certificate to the first wife, a copy of the Marriage Certificate between the parties to these proceedings and a copy of the respondent’s Divorce Certificate to the first wife which provides the necessary timeline for these key events.

4. Accordingly, the Court is satisfied that at the time the respondent participated in the marriage ceremony with the applicant in 2018, he was lawfully married to another person.

5. A declaration will be made that the marriage between the applicant and the respondent conducted at the B Building, C Street, Suburb D is a nullity.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 May 2020.

Associate: 

Date:  26 May 2020