Wold & Kleppir
[2009] FamCA 178
•6 February 2009
FAMILY COURT OF AUSTRALIA
| WOLD & KLEPPIR | [2009] FamCA 178 |
| FAMILY LAW – DECLARATION – Validity of Marriage – Husband claims mistaken as to the nature of the ceremony performed – Whether Iman performed a conversion to the Muslim faith or a marriage ceremony – Reject that Husband was mistaken |
| APPLICANT: | Ms Wold |
| RESPONDENT: | Mr Kleppir |
| FILE NUMBER: | BRC | 3211 | of | 2008 |
| DATE DELIVERED: | 6 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 16 July 2008, 22 - 23 January 2009 and 6 February 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Fisher and Mr Potts, Solicitors of Neumann & Turnour, Solicitors appeared for the Applicant Wife |
| SOLICITOR FOR THE RESPONDENT: | Mr Madsen, Solicitor of Madsen Law, Solicitors, appeared for the Respondent Husband |
ORDERS
IT IS ORDERED THAT:
A declaration be made that the Applicant and Respondent are validly married and have been validly married since … September 2002.
Costs reserved.
The proceedings be adjourned for costs determination and trial directions at
9.30 am on 17 February 2009 at the Brisbane Registry of the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Wold & Kleppir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC3211 of 2008
| MS WOLD |
Applicant
And
| MR KLEPPIR |
Respondent
REASONS FOR JUDGMENT
I am asked to rule on the nature of a ceremony which the applicant says occurred at the home of the respondent’s parents in Brisbane on … September 2002. The applicant says it was a valid marriage ceremony performed by an authorised celebrant, namely the Imam of the local mosque according to the form recognised as sufficient for the purpose of the religious organisation of which he is a minister, namely the Islamic faith. In this claim she is supported by evidence from the Imam himself who has filed an affidavit and given oral evidence in the proceedings before me.
The husband asserts the occasion in question was a conversion ceremony whereby the applicant converted to the Muslim faith. It is his assertion that he did not consent to being married at that time or any other time and if it was a marriage ceremony he was mistaken as to the nature of the ceremony performed on the relevant date. He says he had no intention of marrying the applicant at any time.
I will briefly summarise the litigation history. On 10 April last year Ms Wold (“the wife”) filed an application seeking orders in relation to the two children of the parties who were born in 2000 and 2002 respectively and in addition, orders by way of settlement of property.
On 16 May last year Mr Kleppir (“the husband”) filed a response document setting out the orders he sought in relation to the two children. In relation to property settlement by paragraphs 9 and 10 he sought orders in the following terms:
“9. That this Court declare that the applicant and the respondent are not and have not been married.
10. That the property orders sought in the applicant’s application be dismissed.”
On 16 April 2008 the applicant filed an amended application for final orders and in paragraphs 1 and 2 of that application she sought orders, in summary form, that the Court declare that the ceremony between the parties constituted a valid marriage ceremony, and that the Court declare that the marriage solemnised between the parties is a valid marriage for the purposes of the Marriage Act.
On behalf of the applicant a total of six affidavits have been filed. The affidavits were filed on 10 April, 14 July, 16 July, and 19 September, 21 November last year and 8 January this year. In addition the applicant relies on affidavits filed by her mother, an affidavit by the Imam who performed the ceremony and affidavits of her sister, Ms K.
The Imam was subjected to cross-examination at a hearing on 16 July last year and again at the hearing on 22 January this year. The latter cross‑examination was by way of a telephone link.
The respondent did not attend the hearing on 16 July last year on the basis that he had a medical condition. I ruled at that time if the respondent’s legal representative wished to obtain further instructions from him they could do so by telephone communications but the cross‑examination of the Imam who was already present in Court should proceed and that was the only oral evidence taken on that day. A transcript was made of the Imam’s evidence and has been available on the file.
I turn to consider the respondent’s material. The respondent has filed four affidavits on 16 May, 10 July and 25 September last year, and 9 January this year. In his first affidavit, 16 May, at paragraph 4 the respondent sets out his understanding of the nature of the ceremony which took place on … September 2002.
It is relevant to set out in detail precisely the respondent’s evidence, of his understanding of the events of that day. In quoting the following passage I fully appreciate that in the course of his oral evidence on 22 January the respondent corrected certain passages as not accurately reflecting the evidence that he intended to give, but I will read paragraph 4 in its original form:
“[The wife] and I went through a form of ceremony, an Islamic religious ceremony (something like but not actually a solemnised marriage ceremony) which was held at my parent’s house at […] which occurred on […] September 2002. In the written agreement entered into between [the wife] and I for the purposes of our Islamic religious ceremony and assigned and covenanted to by [the wife], she declared that in the event that she and I ever separated she expected to receive only $10 from me. This covenant was originally attached to the Islamic certificate exhibited to [the wife’s] affidavit although I note she has not exhibited this to her affidavit. I deny that [the wife] and I ever intended to be married under Australian law and in support of this assertion I say as follows:
(a)[The wife] and I went through the religious ceremony on […] September 2002 for the sole purpose of having [the wife] converted to the Muslim faith;
(b)I was under pressure from my parents who considered it was a shame for me to be living with [the wife], given that we had children together which meant that the children were illegitimate in the sense that they were deprived of the status of having two bona fide Muslim parents as they grew up;
(c)A way to remedy this defect was to have [the wife] converted to the Muslim faith. This could have been achieved in a variety of ways that I am aware of but the simplest and easiest way was for her to go through what I would describe as a partial ceremony of marriage overseen by a priest known as an Imam, to thereby convert [the wife] to the Muslim faith.
(d)The ceremony referred to in exhibit A to [the wife’s] affidavit occurred at my parent’s home. Those persons present included [the wife], myself, the Imam [A], my brother [D Kleppir] and another male whom I had never met before who arrived in the company of Imam [A].
(e)The ceremony itself was not a joyful family celebration that normally accompanies a wedding. There were no exchanges of a kiss, gifts, nor was it a festive occasion nor a celebratory meal or anything of that nature. The ceremony itself lasted approximately half an hour, from the arrival of the visitors to the time that the Imam departed with his friend. There was no exchange of rings as is the custom for Muslim weddings. My parents were not present and [the wife’s] parents were not present as is the custom for Muslim weddings. There was no signing of a special book, known as an Aktaiv which is a formal wedding ceremony book. From my own understanding, having attended at a number of Muslim weddings myself, the Muslim wedding ceremony can conveniently be described as being broken into two parts. There is the conversion into the Muslim faith formality at the commencement followed by the second aspect which is the formal signing of the Aktaiv book. The bride and groom’s signatures in this book are witnessed by two adult witnesses. The parents of the bride and groom are also present who also sign the Aktaiv book. The solemnisation of the marriage is complete upon the signing of this book. Following that there is then a time of celebration;
(f)I say that [the wife] and I never intended to proceed beyond the portion of the ceremony whereby [the wife] was converted to the Muslim faith;
(g)We did not sign the Aktaiv or any documents to legitimise our marriage in the eyes of the Australian law and/or the Muslim faith;
(h)[The wife] and I did not complete the notice of intended marriage as required under the Marriage Act and neither did either of us take any steps to register a marriage with the Commonwealth of Australia because it was never our intention to be married;
(i)After the ceremony [the wife] continued to be known as [Wold]. Under a formal Muslim marriage ceremony the bride takes the groom’s surname but because of the restrictive purpose of our ceremony [the wife] was not compelled to take my name and she chose not to and I never insisted that she take my name nor intended that she ever be known as [Kleppir];
(j)In December of 2007 I had occasion to visit Imam [A] at the mosque situated at […]. In his presence I inspected the Aktaiv for any reference of a marriage between myself and [the wife]. There is no record of any such marriage in the Aktaiv;
(k)On Tuesday 29 April I again visited Imam [A] at the mosque at […]. Together we again scrutinised the Aktaiv for any record of marriage between [the wife] and myself. No record was found. We furthermore searched through the Imam’s diary for September 2002 and there was no record of any marriage ceremony between [the wife] and I.”
In his affidavit of 10 July last year the respondent details the legal requirements prescribed in the Marriage Act 1961 (Cth) which were not attended to in the present case. One example is that there was no notice in writing given to the marriage celebrant at least one month prior to the ceremony. In paragraph 6 of his affidavit of 10 July he deposes to the fact that at no stage did they discuss the legal requirements to complete and deliver any such notice. He denies the claim by the applicant that he assured her he would attend to this requirement. At paragraph 7 of that affidavit he summarises his position by deposing:
“I at no stage intended to be married to [the wife] and so had no intention to attending to any of the formal requirements for marriage.”
At paragraphs 23, 24, 25 and 26 of this affidavit he deposes in the following terms:
“23. In preparation for the Parenting Dispute Mediation I provided my solicitor with instructions. A statement was prepared by my solicitor from those instructions. I am advised that an unsigned copy of my statement prepared by my solicitor was forwarded to the Mediator and the solicitor for [the wife] on or about the (date);
24. Now produced to me and marked as exhibit RK12 is a copy of my unsigned statement;
25. At no stage was I asked by my solicitor to proof read that statement, sign it, prior to the statement being forwarded to the mediator or [the wife’s] solicitor;
26. Upon reflection there are a number of inaccuracies in relation to that statement. The most important of which relevant to these proceedings are to found at paragraph 2 and at page 11 under the sub-heading of “chronology of significant events”, particularly the date of […] September 2002. I say that I did not instruct my solicitor that I had been married to [the wife] on […] September 2002 in an Islamic marriage ceremony. My instructions were that there had been a religious ceremony but I was not sure it would be classified as a formal marriage ceremony. At that point in time I was unsure of the legal significance, if any, that that ceremony may have had according to Australian law. I did not know whether that ceremony might be construed that we were married according to Australian law which is something I had intended to do. I asked my solicitor to provide me with advice as to my legal status which he did after [the wife] had commenced her proceedings for matrimonial property settlement.”
The 13-page statement prepared is annexed. It was for an attendance at the solicitor’s on 14 January last year. In the third affidavit of 25 September the only relevant passage appears to be at paragraph 15 in the following terms:
“Concerning the celebration which [the wife] contends was our wedding celebration held on 23 April 2006 I say this was a celebration to welcome [the wife] into the Muslim faith. I had no part in organising the event and I saw no need to hold a function but agreed to it at [the wife’s] request. Concerning the photographs of the invitations annexed to [the wife’s] affidavit, I had never seen those invitations before seeing them exhibited to [the wife’s] affidavit.”
On 11 December 2008 orders were made giving leave to the husband to file an affidavit in response to the affidavit of the Imam to which reference has previously been made. That affidavit was filed by the husband on 9 January this year. At paragraph 2 of that affidavit the respondent deposes:
“As I have stated in a previous affidavit I went through an Islamic religious ceremony with [the wife] on […] September 2002. This occurred at my parent’s house. The date had already been set. My mother told me the date. I told [the wife] that the Imam was coming, that he was going to conduct an Islamic conversion ceremony to convert [the wife] to the Muslim faith. I had never been to such a ceremony before.”
At the commencement of his oral evidence the respondent made a correction to paragraph 4 of his affidavit of 15 May which I have previously quoted. He deleted reference to the words “something like but not actually a solemnised marriage ceremony”. He also sought to delete the words “in the written agreement entered into between [the wife] and I for the purpose of an Islamic ceremony and as signed and covenanted to by [the wife] she declared that in the event she and I ever separated she expected to receive only $10 from me. The covenant was originally attached to the Islamic certificate exhibited to [the wife’s] affidavit although I note she has not exhibited this to her affidavit.”
The respondent’s evidence is that he told his solicitor of the payment of money only by way of an example. He says his instructions were incorrectly taken out of context when inserted in the affidavit in the form as they appear.
The respondent challenges a considerable part of the Imam’s evidence both in his affidavit and his oral evidence to the Court. One example is he said the Imam spoke almost entirely in Arabic. The Imam’s evidence was that everything he said in Arabic was also said in English. The respondent relied on affidavits of his brother D, filed on 10 July 2008 and an affidavit of his mother filed on 9 January this year.
At paragraph 4 of his affidavit of 9 January the respondent says:
“My brother [D] was present at the ceremony but he was in the background, he was walking in and out of the room. [The wife’s] mother was not present and neither were the children.”
In his affidavit of 10 July 2008 from paragraph 4 the husband’s brother deposes:
“4. [The husband] asked me to stay. [The husband] said he needed me to witness some document for him.
5. I did not know what the Imam was there for and I had no understanding of the nature of the ceremony being performed.
...
8. As at [the date of the ceremony in] September 2002 I did not understand that I was present to witness the marriage of my brother to [the wife].”
He then goes on to say:
“Now produced to me and marked with the letter DK1 is a copy of a document bearing the letterhead of the Islam Society of […] Incorporated. I do not recall seeing that document before.
11. I confirm that what appears to be my signature is on that document but the handwriting above what appears to be my signature is not mine.
12. I can recall signing a document that day but to the best of my recollection exhibit DK1 is not a document I recall signing. I did not notice who was responsible for inserting the handwriting on that document above my own handwriting.
13. I did not read the document before signing it.
...
16. There was nothing about the ceremony […] September 2002 to suggest to me that this ceremony was intended to be a marriage ceremony.”
The affidavit filed on 27 Aug 2008 by the husband’s brother has no bearing on the issue that I am asked to determine on today’s date. The affidavit of the respondent’s mother states that she was overseas at the relevant time on … September 2002. She makes a series of allegations about finding the applicant to be dishonest on previous occasions. She also deposes to details of what she would expect from a proper Islamic marriage ceremony.
I do not find the affidavit of the respondent’s mother to be particularly relevant to the determination I have to make on today’s date.
At the hearing on 22 January 2009 cross-examination took place of the applicant, the applicant’s mother, the applicant’s sister and further cross‑examination of the Imam who was in Pakistan at the time and obviously that occurred by way of a telephone link.
There was cross-examination of the respondent, the respondent’s brother, D, and the respondent’s mother. There was an additional affidavit of a Mr C who was not required for cross-examination, and detailed submissions were produced by the respective legal representatives.
Law To Be Applied
Section 113 of the Family Law Act deals with proceedings for declarations. That section is in the following terms:
“In proceedings of the kind referred to in paragraph B of the definition of matrimonial cause in sub-s 4(1) the Court may make such declaration as is justified. Section 4(1B)(1) provides:
Matrimonial cause means:
(b) proceedings for a declaration as to the validity of a marriage.”
Submissions were filed on 6 August 2008 following the hearings on 16 July 2008. I note the submissions for the respondent (paragraph 1.1) in the following terms:
“1.1 The respondent argues that the marriage ceremony performed on […] September 2002 is invalid on two grounds.
1.2 The first ground as set forth in the affidavits of the respondent is that the marriage is void based upon section 23B(d)2 of The Marriage Act which is to say the respondent did not consent to being married as he was mistaken as to the nature of the ceremony performed on […] September 2002.
...
1.4 The second ground on which the respondent argues the marriage ceremony performed on […] September 2002 is invalid -technically the wrong expression as will be shown below – is that the applicant and the respondent went through a ceremony of marriage in Australia which was potentially polygamous.”
The wording at the commencement of this submission, making reference to a marriage ceremony appears to contradict the respondent’s evidence that there was no ceremony of marriage performed on … September 2002 and that the ceremony which took place was in fact a religious conversion ceremony. I assume the submission is made on the basis the Court accepts the Imam’s evidence that the husband was wrong and that the ceremony performed on … September 2002 was in fact a ceremony of marriage.
I turn to consider the evidence of the Imam. He gave evidence in the following terms, as set out in his affidavit. At paragraph 3:
“On […] September 2002 I performed the marriage of [Mr Kleppir] also known as […] and hereinafter referred to as [the husband], to [Ms Wold], hereinafter referred to as [the wife], according to the Islamic religion.
...
6. I performed an Islamic marriage ceremony known as Nikah between [the husband] and [the wife] in the presence of my colleagues, [the husband’s] brother [D Kleppir], hereinafter referred to as [D] and [the wife’s] mother. During the ceremony I spoke in both English and Arabic. The part of the ceremony that I spoke in Arabic was my advice to [the husband] and [the wife] regarding marriage. Whenever I spoke in Arabic I also translated into English so that [the husband] and [the wife] understood what I was saying.
7. During the part of the ceremony that involved [the husband] and [the wife] consenting to marry each other I spoke in English I have been performing Islamic marriage ceremonies since 1996 and I always use the same words, I ask the parties whether they consent to marriage.
8. During the Islamic marriage ceremony between [the husband] and [the wife] I said to [the husband] “[Mr Kleppir], do you accept [the wife] to be your wife in the presence of these witnesses?” [The husband] said “yes”. Then I said to [the wife], “[Ms Wold], do you accept [the husband] to be your husband in the presence of these witnesses?” and [the wife] said “yes”.
9. I declared [Mr Kleppir] and [Ms Wold] to be husband and wife. I congratulated [the husband] and [the wife].”
The Imam on 16 July 2008 stated in the course of evidence-in-chief:
“I have been the Imam at […] mosque since 1996 and performed many marriages. Some of the couples that do approach me for marriage, they do not want to have a civil marriage for the reason that when they go back home the civil certificate may not be accepted and the only certificate that is accepted is an Islamic certificate provided by a recognised society. That may be one of the reasons why the couples come and they say “can you provide a certificate from the mosque?” and secondly, it is very, very quick to perform that marriage.”
In the course of cross-examination the Imam gave evidence of issuing a certificate of conversion to the respondent in 2008 and he details the circumstances in which he came to issue that certificate at that time. At page 19 of the transcript of the proceedings on 16 July the Imam gave the following evidence:
“This is not a civil marriage. This is Islamic marriage. There is two types of marriages.
Question: Yes? I would like to clarify that, one is a civil marriage, that means that the couple has to approach me one month, one day prior to the date of marriage.
Question: Yes, yes? And I will give them papers to fill out and bring them back to me, they will provide their birth certificates or their passport or some form of identity and on the date they will come in and then they will sign all the books and then I will send over the papers to the Department of Registry and then it is recorded in the Department of Registry and at the same time I have got a book as well. That takes some time. This marriage is not of that kind. The second type of marriage is that a couple may be or come to me and they will say “look we are living in sin, we want to be married, we want to get married quickly so can you just bless us?” so what I will do is for them to be recognised as a couple in the Muslim community I will perform the Islamic rituals, meaning consent from both sides, but it will not be signed. There will be no papers to be signed. All right, so this is that kind of marriage.”
At page 21 of the transcript the Imam gave the following evidence:
“But Islamic papers, I do not preserve them because it is not legal or anything like that you know.
Question: It is not legal, what do you mean it is not legal? Legal according to the laws of this country meaning that if you take this to Centrelink they will not accept it. This is what I mean, you need an Australian certificate, Commonwealth certificate and that you have got married. By the same token you can’t register that under ---
Question: You can’t register that under the Births, Deaths & Marriages either? No, no you can’t.”
At page 22 the Imam gave evidence:
“Question: I am suggesting to you that you led [the husband] to believe that that was a ceremony that you performed on […] September that it was just a conversion to the Islamic faith ceremony?
Answer: Sir, this certificate of marriage, it has got “marriage” there, it is not conversion. The words are very, very clear, performed a marriage. The certificate of marriage, so how can marriage be conversion, I am puzzled myself. What are you trying to prove?
Question: Well I am suggesting to you that perhaps you filled out the wrong form on that day.
Answer: No.”
In relation to the question of whether it was a potentially polygamous marriage it was put to the Imam:
“It allows [the husband] to take up to four wives, is that correct, from your understanding? Islam gives him the right.
Question: Gives him the right? To marry four ladies at one time.
Question: At one time? Just like prophets in the past, Moses, Abraham, Adam, Lot, all had more than one wife but it is not a must. I am a Muslim, I don’t have more than one wife. I only know one Muslim in Brisbane that has more than one wife. It is not a must to have a wife, it is a concession if a person has to for some reason you can, like prophets in the past, but it is not a must.
Question: But it is permitted, is it not? It is permitted, yes.”
I will deal with the argument that this was a potentially polygamous marriage later in these reasons.
Section 23B of the Marriage Act deals with the grounds upon which marriages are void. I accept the evidence of the Imam that he performed a ceremony of marriage on the day in question. The factual issue thereafter to be determined is a relatively straight forward one namely it was the respondent mistaken as to the nature of the ceremony performed at that time?
Section 45 of the Marriage Act provides:
“Where a marriage is solemnised by or in the presence of an authorised celebrant being a minister of religion it may be solemnised according to any form and ceremony recognised as sufficient for the purposes by the religious body or organisation of which he or she is a minister.”
There are a few agreed facts in this matter and they may be summarised as follows:
(1)The original of the certificate signed by the Imam on … September 2002 is now available. It was tendered into evidence in the January hearing;
(2)The Imam is an authorised celebrant;
(3)There was no question of duress; no case of duress was made out. It would be inconsistent with the claim by the respondent that he did not engage in a ceremony of marriage;
(4)No marriage certificate pursuant to s 50 of the Marriage Act was ever issued as the marriage had not been registered and is incapable of registration.
Section 48(2) of the Marriage Act relevantly provides, “a marriage is not invalid by reason of the failure to give various notices or to make or subscribe declarations”. These matters were raised by the respondent in one of his affidavits but I find in the circumstances it has no impact on a finding as to whether the marriage ceremony was properly performed.
The sole basis in the first instance, leaving aside the issue of the polygamous marriage, is did the respondent mistake the nature of the ceremony so that he did not have a genuine intention to marry? I accept that the applicant has the onus of establishing that what was performed was in fact a proper valid marriage ceremony. The respondent has the onus of establishing a lack of consent on the basis of his misunderstanding as to the nature of the ceremony.
In paragraph 55 of the written submissions the legal representative for the applicant notes, “the evidence of the respondent concerning the alleged mistake as to the nature of the ceremony performed is equivocal to say the least because it is riddled with inconsistencies and contradictions”.
I accept the force and accuracy of that submission. It is not clear in the way the case was presented, whether the respondent asserts the Imam’s evidence is incorrect in claiming to have performed a ceremony of marriage where no such marriage was performed or whether the respondent now accepts that it was a ceremony of marriage but he mistook the nature of that ceremony.
I reject the respondent’s claim that what took place on the date was a religious conversion ceremony. Why the Imam would attend at the residence with witnesses and the requisite marriage forms and then complete and sign such forms if it was a conversion ceremony, was never made clear.
Counsel in the course of cross-examination of the Imam, transcript page 23, asked:
“Well I am suggesting to you that perhaps you filled out the wrong form on the day.
Answer: No.
That you were performing – no, listen to me first off – you were performing the performing the conversion to the Islamic faith but you filled out – you say someone else filled this out – and you then signed the document and what I am suggesting to you is that you inadvertently signed this as a marriage
Answer: No.
So a marriage ceremony where in fact it was a conversion to the Islamic faith ceremony.
Answer: Sorry, sir, I don’t accept that.”
I find the suggestion by counsel that the Imam inadvertently completed the wrong form to be totally fatuous. In relation to the alternative claim that the respondent misunderstood the nature of the ceremony, I note the following aspects of the evidence:
· In his first affidavit, paragraph 4, the respondent has deposed, “[the wife] and I went through a form of ceremony, an Islamic religious ceremony (something like but not actually a solemnised marriage ceremony which was held at my parent’s house) on […] September 2002”. As I have said, he has subsequently resiled from that but I reject his explanation as to how that passage came to be in his affidavit.
· There are inconsistencies in the respondent’s testimony where he asserts on the one hand that he never attended a conversion ceremony, refer paragraph 2 of his affidavit filed on 9 January, yet claiming he has attended a number of weddings which are in two parts, a conversion ceremony followed by a marriage ceremony.
· The corrections that the respondent sought to make to his affidavit were selective. The passage he sought to delete amounted to a concession that he was aware of the existence of the marriage certificate signed by the Imam on … September 2002, a fact he now denies. I reject the respondent’s explanation and his attempts to correct his affidavit evidence. That is not to say the terms of the affidavit as filed are at all times reliable.
· The respondent’s evidence that all of the proceedings were in Arabic other than the reference to brother and sister, is in conflict with the evidence of the Imam. I clearly prefer the evidence of the Imam as being more objective and more reliable. I note the diction of the Imam was perfectly clear when he was giving the evidence before me. I found the Imam to be a very honest witness endeavouring as best he could to be of assistance to the Court.
· I reject the respondent’s claim the applicant’s mother was not present. Such claim was in conflict with the evidence of three witnesses, the applicant, the applicant’s mother herself and the Imam.
· I reject the respondent’s claim the Imam told him there was no entry relating to a marriage in his diary for … September, this is in conflict with the Imam’s oral evidence before me as referred to in the transcript.
· The respondent refers to the ceremony as a “partial ceremony of marriage”. I find such an expression to be meaningless but it gives every indication that the respondent was well aware that this was more than a simple conversion ceremony.
Exhibit 3 is the certificate dated … September 2002. It reads in the following terms:
“To Whom It May Concern, I, [Imam A], the Imam of […] Mosque have performed the marriage of brother [Mr Kleppir] of [address], son of […] on sister [Ms Wold] of [address], daughter of […], according to the Islamic religion. This certificate has been given to certify that the above two are the husband and wife from today, […] September 2002.”
That document is witnessed by the husband’s brother D and another person who by all accounts travelled with the Imam to the residence on that day. The wife asserts that the handwriting on the top half of the document is that of the respondent. The respondent denies that this is the case.
Exhibit 7 is a personal information form completed by the respondent for work purposes with the L Group. In the course of cross‑examination the respondent accepted that he had printed his name and address on this document and his signature also appears on this document. The signature on exhibit 7, the L Group document, is consistent in all respects with the signature of the respondent appearing on each page of his four affidavits. I find the printing on exhibit 3 to be remarkably similar to the printing on exhibit 7 which, as noted, the respondent concedes is his handwriting. The handwritten printing on exhibit 3 had to have been completed at the residence by someone on … September 2002.
The Imam’s evidence was that he had attended at the residence with the marriage certificate in standard form but with the gaps to be completed for personal details and when he signed it the document had been completed. The person who filled in the top half of exhibit 3 had to have known the names of the parties and the names of their respective fathers. On the balance of probabilities I am prepared to find it is the respondent’s handwriting on exhibit 3 where the name and address of the parties are printed.
I note in exhibit 7, the personal information form, the respondent has written the applicant’s name as at July 2005 as M Kleppir. The respondent claimed that he only ever referred to the applicant by her maiden name. He argued that this was further proof that he had not intended to marry.
Given that many women these days elect to continue to use their maiden names I would not have thought it was a forceful argument in the respondent’s favour. However, where there is a document where he describes the applicant as M Kleppir I would regard it as evidence that confirms his knowledge that the parties were married.
Further submissions made on behalf of the applicant that the Court could find it was a ceremony of marriage and the respondent well knew it was a ceremony of marriage include:
(1)Photos of the respondent wearing a ring on his left hand ring finger as appears in photos in exhibit 4.
(2)The evidence of the respondent concerning the conversion impacting on the illegitimate status of his children is illogical. Marriage can effect the status of legitimacy, a conversion ceremony can never have such a consequence. I accept the force of the submission.
In the course of the written submissions, at page 5 paragraph (f), it is submitted:
“The respondent’s account of the 23 April 2006 wedding celebration feast at […] Restaurant in […] as a party to celebrate the conversion of the applicant to Islam is highly implausible.”
Later in that same paragraph:
“The events accompanying the wedding celebration feast (the photographs in exhibit 4, recording the wedding-like apparel of the applicant and the respondent and their children, the photographs recording a wedding band on the wedding ring finger of the respondent, the invitation and the limousine) point unequivocally to a wedding celebration feast. The respondent’s account is also contradicted by positive evidence adduced to the contrary by the applicant (the applicant herself, her mother and her sister) and there was no damage at all done in cross‑examination to those assertions of fact.”
I accept the validity and accuracy of the submissions in these terms. I reject any suggestion by the husband’s brother that it is not his signature on exhibit 3. I find he signed it as a witness and he well knew what he was signing. I reject any suggestion the respondent did not know the nature of the ceremony being performed on … September 2002. I find that he well knew it was a ceremony of marriage. The evidence of the Imam as to the validity of the marriage ceremony on that date is compelling. I reject the claims by the respondent that he did not understand he was being married on that date.
I turn to the legal argument that the marriage is invalid because it is potentially polygamous. I have read the respective submissions. Polygamy is not lawful under Australian law. At page 20 of his supplementary submissions the applicant’s legal representative, argues:
“39. The respondent asserts (paragraph 4.7) that the union between the applicant and the respondent is a potentially polygamous union and should be denied the status of a marriage under the Marriage Act 1961 on account of that feature. There are several insurmountable difficulties with this submission.
40. First, because potentially any Muslim man in Australia can take up to 4 wives, this means that any Muslim male who has contracted in Australia an Islamic marriage is party potentially to a polygamous union. Therefore, all such potentially polygamous unions are invalid in the face of the Marriage Act 1961. This is a reductio ad absurdum.
41. Secondly, and in extremis, if any Muslim male contracts in Australia a second or subsequent marriage by the rites of Islam (or indeed under any other religious or civil marriage ceremony) this exposes him to the crime of bigamy under section 94 of the Marriage Act 1961. Australian law will not allow by a regime of private law or private religious law or any system of personal law a person to do what is prohibited by positive statute law.
42. Thirdly, the respondent relies on Sowa v Sowa [1961] 1 All ER 687 at 690 in support of the proposition that Australian law should not treat a polygamous union as a monogamous marriage, (paragraph 4.7). The actual ratio decidendi of Sowa v Sowa is that United Kingdom matrimonial causes jurisdiction under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 (UK) and the Summary Jurisdiction (Separation and Maintenance) Acts 1895 to 1949 (UK) does not extend to giving relief in relation to marriages that are not monogamous where the union between the parties is potentially polygamous. Sowa v Sowa is distinguishable because it was the underlying positive law of the State of Ghana (Marriage Ordinance of 1884, Chapter 27 of the Laws of the Gold Coast 1951, Revised) that contemplates potential polygamous unions and also the celebration of a church ceremony or a civil ceremony before a relevant registrar that can convert a potentially polygamous union into a monogamous union. In the present case, there is no such underlying positive law that even in the first place qualifies or characterises the marriage between the applicant and the respondent as a potentially polygamous union.”
I accept the force of these submissions.
I find no merit in the submission made on behalf of the respondent that the marriage should be declared invalid because it is potentially polygamous.
After finalising issues of property settlement and children’s issues I propose to add an addendum to this determination on the responsibility of the Imam to comply with Australian law when carrying out his duties in performing ceremonies such as the one performed on this occasion. The Marriage Act imposes penalties on marriage celebrants who do not comply with the procedural requirements imposed in that legislation and this should be made clear to the Imam and to the relevant authorities.
I propose to make a declaration, as I am empowered to do, that the applicant and the respondent are validly married and have been validly married since … September 2002.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry
Associate:
Date: 6 February 2009
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Costs
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Procedural Fairness
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