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

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

That the marriage between Mr Clapton and Ms Wellard solemnised in Australia on … 2018 be declared null and void.
That the Application for Divorce filed 11 January 2020 be dismissed.
That the marriage certificate evidencing the marriage of the parties on … 2014 at City C, Country B be Exhibit “1” in the proceedings.
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 to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 105 of 2020

MS WELLARD

Applicant

And

MR CLAPTON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 11 January 2020, Mr Clapton (“the husband”) and Ms Wellard, (”the wife”) filed a joint Application for Divorce. The document states that the parties considered they were married at Suburb D in South Australia on … 2018. The application was filed less than two years from the date of marriage which required the parties to have undertaken counselling and to have obtained a certificate indicating that notwithstanding the short period following the separation of the parties, there was an irretrievable breakdown of marriage and that there was no likelihood of the parties effecting a reconciliation.
The other alternative is that it is a matter of the exercise of the Court's discretion as to whether, notwithstanding that parties have not undergone a process of counselling, that nonetheless a divorce order should be made. Applications for divorce are generally dealt with by a registrar. However, in this case, the registrar considered that there was information before the Court which provided a level of complexity to the Court's consideration as to whether the Application for Divorce should be granted in circumstances where there had not been counselling.
The parties were required to file affidavits which cover the same issues. The registrar's attention was focused on the wife’s affidavit filed 18 May 2020, at [8(i)] as follows:
The parties married in the E Church, City C Country B, … 2014. Annexed hereto and marked “[A1]” is the Marriage Certificate issued.
Subparagraph 5(viii) provides:
Whilst our marriage in Australia has been less than two years, we nevertheless have been together since 15^th August 2014. …
The issue that that admission raised was whether the parties were validly married in Country B and therefore their marriage in Australia should be considered as a nullity. One necessarily follows the other. The proceedings were adjourned to enable the parties to explore the circumstances of their Country B marriage. That arises from an annexure to the affidavit of the husband filed 21 May 2020, which annexes a document which purports to be a marriage certificate from the E Church. The document is interesting in that it purports to certify that the parties were married on … 2014 in City C at the ecclesia in accordance with the apostolic doctrine before witnesses.
Whilst not relevant to the determination that I have to make today, in any event, there is some argument which suggests that the ceremony the parties underwent in City C may well be considered a common law marriage. An affidavit has been filed prepared by a solicitor, a Mr F who was asked by the parties to consider the marriage certificate. He has regard for the provisions of the Country B Marriage Act and he notes the matters raised in the certificate issued by the church authorities.
In his opinion, the City C marriage satisfies the obligations and requirements of the Country B Marriage Act. Accordingly, in the opinion of Mr F, the parties underwent a valid marriage in Country B. If I accept that is the position, then the parties were not entitled to be married in Australia whilst the Country B marriage was valid and remained in force. In the circumstances of this case, I accept his evidence. It is noted that Mr F took the precaution of having the affidavit sworn by a Notary Public and, on that basis, I accept that the parties were validly married in City C on … 2014.
Given that situation, I now have to consider how the parties are able to move forward. The parties are still keen to seek a divorce order in respect of their marriage. That marriage is now obviously a marriage solemnised in City C, Country B. That then raises the consideration of whether an order or a declaration should be made of nullity in respect of the Australian marriage. An overseas marriage will be recognised in Australia as valid if it was valid under the local law at the time it was solemnised. I refer to ss 88C(1)(a) and 88D(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”).
Local law is interpreted to mean the law in force in the foreign country in which the marriage was solemnised. Proof of the validity of an overseas marriage is facilitated by s 88G(1) of the Marriage Act. This subsection provides that a marriage certificate issued by a competent authority in a foreign country is prima facie evidence of the occurrence of the marriage and of the validity of the marriage. The term "competent authority" is defined in s 88G(3) as being either an authority prescribed by regulations in relation to a foreign country or a part of the foreign country or any other authority competent under the law of that foreign country to issue the original certificate or a certified copy thereof.
Section 102 of the Family Law Act (1975) (Cth) (“the Act”) provides that a court may receive as evidence a document purporting to be either the original or a certified copy of a certificate of marriage alleged to have taken place in Australia or elsewhere. The section therefore provides a simple pathway for a party to prove that the parties went through a ceremony of marriage simply by tendering a document which, on the face of it, states that it is an original or certified copy of the marriage certificate, without having to prove that the seal or signature which appears on the document is the true or official seal or signature of the ourt or authority that issued it.
I am satisfied in this case as to the veracity of the marriage certificate as issued by the E Church on … 2014 corroborated by the affidavit of Mr F sworn on 16 July 2020. Under s 51 of the Act, an application for a decree of nullity of marriage must be based on the grounds that the marriage is void. A void marriage is of no effect in law. It is not a marriage at all, whether or not a decree declaring it void has been pronounced. The decree is simply a declaration which confirms the fact that there was never a valid marriage.
The grounds for a decree of nullity of marriage are set out and found in ss 23 and 23B of the Marriage Act. The grounds under s 23B are as follows:
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 as defined in the Act;
c)the marriage is not a valid marriage under the law of the place where the marriage ceremony takes place, because of the failure to comply with the law of that place about the form of the marriage;
d)the consent to the marriage of either of the parties is not real consent because it was obtained by duress or fraud or there was a mistake in identity or a party to the marriage was mentally incapable of understanding the nature and effect of the marriage or either of the parties were not of marriage age.
Section 23B provides that a marriage is void where one of these grounds exists and quoting from the section, the words "and not otherwise"[1] are included. It is these words that give rise to some difficulties where the relationship lacks one of the essential characteristics of marriage not listed in these grounds. An example is the very same issues that arise in the present case. This is a matter where the parties have gone through a second marriage ceremony to a person at a time when they were already married.
[1]Marriage Act 1961 (Cth) s 23B(1)
The general prohibition on second marriage ceremonies in s 113(1)(a) of the Marriage Act does pose a problem. The relevant part of that section states:
(1)Except in accordance with this section:
(a)persons who are already legally married to each other shall not … go through a form or ceremony of marriage with each other;
(b)…
The difficulty, and there is possibly a hiatus in the legislation, is that the Marriage Act says nothing about the status of the second marriage ceremony in contravention of the provision.
I think common sense and logic must be brought to bear, and I consider that any such marriage ceremony must be devoid of any legal effect and therefore by necessity must be a nullity. And the marriage itself, in this case the Australian marriage, must therefore be void. Section 23B(1) of the Marriage Act, however, makes no provision for the situation that I have just discussed. Section 23B(1)(a) declares a marriage to be void where:
either of the parties is, at the time of the marriage, lawfully married to some other person;
The obvious difficulty is that “some other person” may or may not include the parties.
Again, I consider logically such a marriage must also be void, even though it is not specifically referred to in s 23B. The issue was given some further consideration in the decision of Kapadia & Kapadia (1991) FLC 92-245. At 78,667, Kay J quotes Professor Dickey as follows:
“Logic must surely prevail. A second ceremony of marriage involving parties who are already lawfully married must be a nullity, despite the fact that the grounds of nullity in section 23B(1) purport to be exclusive. If these grounds really were exclusive, marriage between persons of the same sex would be valid, for there is no ground of nullity which covers this situation either. …”
For those reasons then I consider that the marriage solemnised by the parties on … 2018 in Suburb D, South Australia should be declared null and void. The complexity that has involved the parties is not necessarily of Fapplication for dissolution in respect of the first marriage in circumstances where they did not need to be remarried or further married in Australia, I do not consider that it was a device by the parties, but rather it was a genuine belief held by each of them that their marriage ceremony in City C, whilst a ceremony recognised by the church that solemnised the ceremony, was nonetheless not recognised under Country B law.
The parties are keen to conclude this matter, and I have indicated to the parties that if they are able to file an application, the registry should give proper recognition to the fact that a fee has already been paid in respect of the joint application and that it would be fair and reasonable for any further fee in respect of the second application for dissolution to be waived. I also propose to expedite the requirements in respect of service and then the hearing of any joint application once it is filed to ensure that if at all possible the parties will secure a divorce order of their Country B marriage as soon as it is possible.
In relation to the Application for Divorce, for the reasons that I have earlier given in respect of the application seeking a declaration of nullity, I am now being asked to consider an Application for Divorce filed on 20 July 2020 in respect of the marriage of the parties on … 2014 in City C, Country B. I propose to grant the application. I have considered the provision of s 55A of the Act and I am satisfied that there are no children to whom the section relates. On the basis that there is no opposition, I further consider that in the circumstances of this case it is appropriate to waive the normal period required for the service of the application. It is a joint application.
I make orders as appear at the commencement of these reasons.

I certify that the preceding twenty (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 July 2020.

Associate:

Date: 20 July 2020