WELLARD & CLAPTON

[2020] FamCA 642

FAMILY COURT OF AUSTRALIA

WELLARD & CLAPTON [2020] FamCA 642

FAMILY LAW – NULLITY – Where the parties underwent a marriage ceremony in Country B in 2014 – Where the parties held the belief the ceremony was not recognised under Country B law – Where the parties underwent a marriage ceremony in Australia in 2018 – Where the parties jointly sought a divorce of their Australian marriage – Whether the parties were validly married in Country B – Where the Court finds the Country B marriage is a valid marriage – Whether the Australian marriage was void – Consideration on the prohibition of second marriage ceremonies – Where the circumstances do not fall within section 23B(1) of the Marriage Act 1961 (Cth) – Where the Australian marriage must still be void – Orders.

FAMILY LAW – DIVORCE – Divorce Order – Where the parties filed a joint Application for Divorce – Where the parties were validly married in Country B in 2014 – Divorce granted. 

Family Law Act 1975 (Cth) ss 51, 55A, 102
Marriage Act 1961 (Cth) ss 23, 23B, 88C(1)(a), 88D(1), 88G(1), 88G(3), 113(1)

Kapadia & Kapadia (1991) FLC 92-245

APPLICANT: Ms Wellard

RESPONDENT: Mr Clapton

FILE NUMBER: ADC 105 of 2020

DATE DELIVERED: 20 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

UPON NOTING the following:

(a)That the parties have paid a fee upon the filing of an Application for Divorce filed 11 January 2020;

(b)Upon the Court making a declaration of nullity with respect to the marriage ceremony that occurred on 5 August 2018; and

(c)Upon the parties’ intention to file an application for dissolution of their Country B marriage solemnised on 15 August 2014, it is the view of the Court that the parties should be relieved of any further filing fee.

Orders

1. That the marriage between Mr Clapton and Ms Wellard solemnised in Australia on … 2018 be declared null and void.

2. That the Application for Divorce filed 11 January 2020 be dismissed.

3. That the marriage certificate evidencing the marriage of the parties on … 2014 at City C, Country B be Exhibit “1” in the proceedings. 

4. A divorce order be made in respect of the marriage of the parties solemnised on … 2014 in City C, Country B.

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  Wellard & Clapton 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…