Weekes & Weekes

[2009] FamCA 699

FAMILY COURT OF AUSTRALIA

WEEKES & WEEKES [2009] FamCA 699

FAMILY LAW – NULLITY – Declaration – application by the husband seeking a declaration of nullity of marriage – where the parties married in Sri Lanka – where the wife subsequently migrated to Australia – where the wife indicated on her visa application that she had previously been married and that her first husband had died – where the husband subsequently learnt the wife’s first husband was still alive – where an investigation was undertaken by the Department of Immigration and Citizenship and a report prepared – where it was confirmed the death certificate provided by the wife was fraudulent – where the wife had filed for a divorce from her first husband in Sri Lanka and been granted a decree nisi – where the wife had not obtained a decree absolute at the time of her marriage to the husband – reference to evidence of Sri Lankan law – wife lawfully married to another person at the time of the purported marriage to the husband – marriage between the parties is null and void

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

C v C (Nullity) (1998) FLC 92-284
Wiggins v Wiggins and Ingram (1958) 1 WLR 1013
Fullerton & Fullerton (1958) 2 FLR 391
Mitchell v Mitchell [1934] 51 WN (NSW) 195

APPLICANT: Mr Weekes

RESPONDENT: Ms Weekes

FILE NUMBER: DNC 445 of 2008

DATE DELIVERED: 17 JUNE 2009

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: BURR J

HEARING DATE: 17 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS M GIACOMO

SOLICITOR FOR THE APPLICANT: WARD KELLER

COUNSEL FOR THE RESPONDENT: MR D STORY

SOLICITOR FOR THE RESPONDENT: NORTHERN TERRITORY LEGAL AID COMMISSION

UPON NOTING that the Application of the husband filed on 3 March 2009 for a decree of nullity of marriage on the ground that such marriage is void was heard on 17 June 2009

Orders

1. The Court was satisfied that the ground was proved.

2. The Court was satisfied that the marriage solemnised in Colombo, Sri Lanka on … October 2000 between Mr Weekes and Ms Weekes is absolutely null and void.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 445  of 2008

MR WEEKES

Applicant

And

MS WEEKES

Respondent

REASONS FOR JUDGMENT

1. I have before me for determination an Application for declaration of nullity of marriage under the Family Law Act 1975 filed by the husband Mr Weekes on 3 March 2009.  The order sought is that the marriage celebrated between the parties on … October 2000 in Colombo, Sri Lanka be declared null and void and in that regard, he refers to the purported marriage between himself and the wife Ms Weekes.

2. The wife filed an Application for Divorce on 10 October 2008 and the husband filed a Response to Divorce on 13 January 2009.  The wife then filed an Affidavit on 9 February 2009 stating that the circumstances of her marriage to the husband had been investigated by the (then) Department of Immigration and Citizenship (“the Department”) and annexed a report produced by the Department.  The wife stated that based on the findings of that report, it was open to the Court to find that the marriage to her first husband is still “on foot” and the marriage to the husband in these proceedings is therefore invalid.  The husband filed the Initiating Application seeking a declaration that the marriage is null and void on 3 March 2009 and annexed the wife’s Affidavit.

Background

1. The husband was born in 1931 and is currently therefore 78 years of age.  The wife was born in 1961 and is thus aged 47 years.  The wife has two children from her previous marriage aged almost 19 and 16 years.

2. The husband and the wife met as a result of an advertisement placed by the husband in November 1998 in Sri Lanka seeking a wife.  The husband met the wife when he travelled from Australia to Sri Lanka in 1999.  The husband states that at this time the wife advised him that she was a widow with a then 8 year old daughter and a 5 year old son.  The parties married in October 2000.

3. The wife lodged an Application for migration to Australia by a partner visa application on 21 June 2004.  The visa was granted on 23 December 2004, as were visas for the wife’s children.  The wife arrived in Australia on 25 January 2006.

4. In completing the visa application form the wife indicated that she had previously been married and recorded that she had separated because of “death”.  The wife included with the application a certificate stated to be the death certificate of her first husband.  The certificate stated the death of the wife’s first husband as 2 May 1995.

5. The husband states that the parties separated under the one roof in or about April 2006 and that he and the wife did not live separately until the wife was removed from his property by the police in July 2007.

6. In 2007 the husband states that he learnt that the wife’s first husband was still alive.  The husband travelled to Sri Lanka at which time he states he discovered that the wife had filed for divorce from her first husband in 2000.

7. The husband wrote to the Department and in response the Department undertook investigations in considering the cancellation of the wife’s visa for breaching sections 101 and 103 of the Migration Act 1958 (Cth) by giving incorrect answers in her application form and having provided a bogus document. The report produced in this investigation has been annexed by the wife to her affidavit of 9 February 2009 and by the husband through his annexing of the wife’s affidavit. The Australian High Commission in Colombo confirmed in February 2008 that the death certificate provided by the wife was bogus.

The evidence

1. Apart from the report, there are no further documents supplied or relied upon by either party.  I am satisfied that I can proceed on the documentation that I have received and I treat the report from the Department as being proper evidence before the Court in establishing those primary relevant factors.

2. The report details responses from the wife and the wife’s then legal representative to questions posed by the Department and includes extracts from the wife’s Sri Lankan divorce hearing file and advice received by the Department from the Australian High Commission in Colombo.  At page 5, the report states:-

   “Evidence held on the visa holder’s files confirms the visa holder’s first husband […] is alive and the death certificate submitted with her spouse application is bogus. ….”

   The report continues, at page 7:-

   “As the death certificate submitted by the visa holder states her first husband has died on 2 May 1995.  The visa holder filed for a divorce on 8 February 2000 with the courts in Sri Lanka.  On 12 September 2000, an Order of Nisi granted was entered by the courts in Sri Lanka with a Decree Absolute on 15 December 2000, if her first husband did not contest it.  The visa holder married Mr [Weekes] on […] October 2000.  On their marriage certificate it is recorded that she is a widow.

   The question has to be asked, why would the visa holder apply to the courts for a divorce in February 2000 if her first husband had died on 2 May 1995?  From this it is evident that the visa holder knew that her first husband was alive and not deceased as claimed.  Further to this, on the visa holder’s marriage certificate it is recorded that the visa holder is a widow.  The marriage  between the visa holder and Mr [Weekes] occurred six weeks after her divorce from her first husband.  A letter dated 18 June 2008 from Mr Dandeniya attorney-at-law who acted for the visa holder for her divorce forwarded to the Department by the visa holder’s legal representative confirms that the visa holder’s husband Mr [Weekes] accompanied the visa holder when she was required to meet with Mr Dandeniya and when she went to court.  In view of this information, it is evident that both the visa holder and Mr [Weekes] knew the death certificate was not genuine. …”

3. Further, page 11 of the report sets out the contents of a court document which the report states is dated 12 September 2008 and the extract reads:-

   “‘I considered the evidence given by the applicant and the document P1.   I am satisfied about the evidence and the document.  From the document P1 it is established that there is a lawful marriage between the plaintiff and the defendant and as a result of malicious desertion by the defendant, I decide that the marriage has come to an end.  I accordingly decide that the plaintiff is entitled to a decree as a result of malicious desertion by the defendant.   I also entrust the custody of the two children, […] and […], stated in paragraph 11 of the plain [sic] to the plaintiff.  However the right of the defendant to claim custody of the children is not be [sic] prevented by this decree.   The plaintiff is not entitled to costs or any other allowance.  Accordingly, enter an Order Nisi.  After entering order Nisi, hand over to the defendant and report to this court.’  The second page of the document titled […] District Court Order Nisi states ‘On 12 September 2000, the plaintiff, Attorney-at-Law Mr D.F. Dandeniya on behalf of the plaintiff appeared before the District Judge […].  The defendant had been issued summons but he was not present in court and therefore the case was heard ex parte without a representation from the defendant.  The court considered the evidence given by the plaintiff and the document tendered as P1 and as the court was satisfied, the court decreed that the marriage was dissolved on the basis of defendant’s malicious desertion.  I entrust the custody of the two children of this marriage, […] and […] to the plaintiff.  However, this decree does not prevent the defendant’s entitlements in relation to the custody of these children.  It is also decreed that the plaintiff is not entitled to any cost or any other allowance.  It is also decreed that the plaintiff is entitled to use her maiden name from today onwards and she is entitled to all the privileges an unmarried woman is lawfully entitled.  It is also decreed that any objections should be tendered within three months from the date of this decree, and if no objection is tendered, this decree made on 12 September 2000 [sic]’. [Refer to folios 177 – 183 held on file […]].”

4. It is not clear from the report whether the Department was satisfied that a decree absolute has ever been granted to the wife and that is reflected on page 11 of the report where it states:-

   “She [the visa holder’s legal representative] also commented that the marriage between the visa holder and her first husband remains registered as a valid marriage and has not been set aside, as far as the visa holder is aware.

   The visa holder has not presented any documents that support her marriage is still a valid marriage and has not being [sic] set aside.  From all the documents received in relation to the court case held on 12 September 2000 support that an Order Nisi was entered on 12 September 2000 and to be made Absolute within three months if no objections were tendered by the visa holder’s first husband.  From all accounts no objections were tendered by the visa holder’s first husband.

   Advice was sought from the Australian High Commission in Colombo as to the validity of the marriage between the visa holder and Mr [Weekes].  In response the Australian High Commission in Colombo confirmed that the death certificate submitted with the visa holder’s spouse application is fraudulent and that the marriage is null and void as it is bigamous, (Refer to folios 1 and 68 on file […]).

   When advice was sought from the Australian High Commission in Colombo it was sought on the basis that the death certificate was possibly fraudulent.  The advice was not sought on the basis that the visa holder had filed for divorce in the courts in Sri Lanka and that an Order Nisi was entered on 12 September 2000 and to be made Absolute within three months if no objections were tendered by the visa holder’s first husband.  From all accounts no objections were tendered by the visa holder’s first husband, (Refer to folio 174 on file […]).

5. However, it appears that the Department is satisfied that the wife had filed for divorce on 8 February 2000, was granted a decree nisi on 20 September 2000 and at the time of her purported marriage to the husband, had not obtained a decree absolute.

6. I am satisfied that the documentation provided from the Court in Sri Lanka is accurate and legitimate.  It evidences that the husband and the wife in these proceedings purported to undergo a ceremony of marriage at a time between decree nisi and absolute; that is at a time before the order nisi for divorce became absolute.  I need to look at what that means in terms of the law.

The law

1. A decree of nullity can be made on the ground that the marriage is void: Section 51 Family Law Act 1975 (Cth) (C v C (Nullity) (1998) FLC 92-824). Section 23B of the Marriage Act 1961 (Cth) sets out the grounds upon which a marriage is void:-

   “(1)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:

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

   (b)the parties are within a prohibited relationship;

   (c)by reason of section 48 the marriage is not a valid marriage;

   (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 identify of the other party or as to the nature of the ceremony performed; or

   (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (e)either of the parties is not of marriageable age;

   and not otherwise.”

2. Whilst the husband did not frame his application based on these provisions, the ground on which the application is based is clearly Section 23B(1)(a) of the Marriage Act 1961, namely that the wife was lawfully married to another person at the time of their purported marriage. 

3. A marriage where one person is already married to another person at the time of the marriage is void as it is bigamous.  It does not matter that either party is aware that there is a lawful marriage already in existence.  Knowledge and intent may be relevant to criminal proceedings for bigamy, but all that the Court has to be satisfied about is that when the second marriage ceremony took place, one of the parties was lawfully married to some other person.  This applies even where a marriage takes place after decree nisi but before there is a decree absolute.

4. On the last occasion that the matter was before me (on 11 May 2009) I made reference to a number of authorities which make the position quite clear that a marriage (in this case a second marriage) is to be declared null and void where the ceremony of marriage occurred between decree nisi and decree absolute.  I provided those authorities to the parties. Suffice is it for me to refer  perhaps to just three decisions:-

   In the matter of Wiggins v Wiggins and Ingram (1958) 1 WLR 1013; [1958] 2 All ER 555, the wife obtained a decree nisi on the grounds of the husband’s incapacity. Before the decree became absolute, she went through a second marriage ceremony. Notwithstanding the fact that the first marriage was later declared null and void, this did not affect the fact that the second marriage took place before the decree became absolute and thus the second marriage was held to be void

   In Fullerton & Fullerton (1958) 2 FLR 391, the wife married one D in 1949. D applied for a nullity decree on the ground of the wife’s incapacity and an order nisi was granted in 1950. The order absolute was not taken out until 1958. However, the wife married the husband in 1951. The husband sought an order that the marriage to the wife be pronounced null and void. It was held that the 1958 order absolute was not effective in 1951 since it did not declare the marriage to be null and void ab initio, and thus the wife’s marriage to the husband was held to be null and void.

   In Mitchell v Mitchell [1934] 51 WN (NSW) 195, the husband married his aunt in 1925. In 1929, the aunt applied for a decree of nullity on the grounds that the relationship was within the prohibited degrees. The aunt obtained an order nisi, but the husband remarried before the order absolute had been granted. The husband then married again after the order absolute had been granted. It was held that the decree of nullity had the effect that the husband and the aunt were never married, and thus his first re-marriage was valid and his second re-marriage after the order absolute was null and void.

5. To add further weight, although the matter is to be determined according to the law of this country, I have before me by way of additional evidence only recently received correspondence from D L & F De Saram in Colombo dated 1 June 2009.  It sets out the law in Sri Lanka and instructively, in the conclusion on page 3, it says:-

   “It is well settled law in Sri Lanka law that a contract of marriage shall be dissolved ONLY by way of a judgment of divorce a vinculo matrimonii pronounced in a competent court.  A Judgment of divorce a vinculo matrimonii is deemed to have been pronounced in court ONLY on Decree Nisi (issued in the first instance) being made absolute, as provided for in the CPC (Civil Procedures Code).  Thus, a marriage contracted by a party during the subsistence of divorce proceedings of a previous marriage in which Decree Nisi has not been made absolute, shall be null and void.

   In the case of Sathiyanathan Vs Sathiyanathan (39 N.L.R. 241 it was held that ‘the marriage of a party to a divorce action before the decree is made absolute is invalid’.

   The position was endorsed in Rajaratnam Vs Chinnakone (71 N.L.R. 241) where it was held that that [sic] ‘It is the Decree Absolute that has the effect of dissolving a marriage and not the Decree Nisi’.

   In the more recent case of Abeysundere Vs Abeysundere (1998 S.L.L.R 185) it was held that ‘Section 18 of the Marriage Registration Ordinance prohibits polygamy and that sections 18, 19(1), 35(1) and (2) read together shows beyond doubt that that [sic] the Act only contemplates a monogamous marriage; and that any second purported marriage by a party, while a marriage contracted by such party previously under the Ordinance was subsisting, would be void.  The rights of such party (previously married) seeking to contract a purported second marriage, are qualified and restricted by the legal rights of the spouse of such party.’

   They concluded:-

   “It is our advice that in the premises aforesaid the marriage contracted between Party A and Party B under the Sri Lanka law is null and void.”

6. Thus as I said, whilst the law which operates in this country is the law upon which I need have regard and make pronouncements on my findings, it would appear that if similar proceedings had been taken in Sri Lanka the result would have been the same.

In summary

1. The wife filed for divorce from her first husband on 8 February 2000 in Sri Lanka.  A decree nisi was granted in Sri Lanka on 12 September 2000 which was to become absolute on 15 December 2000 if no objections were received from the wife’s first husband.  Before the decree became absolute the wife purported to marry the husband in these proceedings.  The wife was thus lawfully married to another person at the time of her ceremony to the husband in these proceedings and thus the husband in these proceedings should be granted his application to have the marriage declared null and void.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  17 June 2009