YOON & LAU
[2020] FamCA 281
•11 March 2020
FAMILY COURT OF AUSTRALIA
| YOON & LAU | [2020] FamCA 281 |
| FAMILY LAW – NULLITY – undefended – where the parties were lawfully married in China – where the parties subsequently entered into a second marriage upon their relocation to Australia – where the applicant now seeks that the second marriage be declared null and void – where s 23B of the Marriage Act 1961 (Cth) does not specifically provide for such a circumstance – consideration of s 113(1)(a) – order that the second marriage between the parties be declared null and void. |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) ss 23, 23B, 113 |
| Zau & Huang [2015] FamCA 873 |
| APPLICANT: | Ms Yoon |
| RESPONDENT: | Mr Lau |
| FILE NUMBER: | MLC | 13330 | of | 2019 |
| DATE DELIVERED: | 11 March 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 11 March 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Vstar Lawyers & Consultants, Mr Mak |
| THE RESPONDENT: | No appearance |
Orders
That the marriage entered into between the applicant Ms Yoon and the respondent, Mr Lau at Suburb B on … May 2019 is declared null and void.
All extant applications be otherwise dismissed.
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 Yoon & Lau 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 MELBOURNE |
FILE NUMBER: MLC 13330 of 2019
| Ms Yoon |
Applicant
And
| Mr Lau |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
This matter concerns an application for a decree of nullity of marriage in relation to the marriage between Ms Yoon, the applicant and Mr Lau, the respondent which was solemnised in Melbourne on … May 2019.
The parties, at that time, had already entered into a marriage in China on … February 2019. The translated extract of the marriage certificate is annexed to the applicant’s Initiating Application filed 25 November 2019. Following the parties’ first marriage in China, they moved to Australia and it was upon their relocation to Australia that they entered into a second marriage in Suburb B on … May 2019.
Pursuant to her Initiating Application, the applicant now seeks that the second marriage be declared void and that a decree of nullity be granted. The application is supported by an affidavit of the applicant filed the same date. In addition, a further affidavit was sworn and filed by the applicant on 20 December 2019.
The matter came before the Court on 15 January 2020. That day, application was made to Registrar Mestrovic for orders dispensing with service. Orders were made for service of the application to be dispensed with on condition that within seven days, the applicant forward to the respondent by email to his email address, the application for decree of nullity, the Application in a Case seeking a dispensation of service and a copy of the affidavits of the applicant filed 25 November 2019 and 20 December 2019. The applicant was also required to serve a sealed copy of that order on the respondent.
The affidavit of service of Mr C filed 23 January 2020, confirms that the applicant has complied with the orders of Registrar Mestrovic. Mr C deposes that the respondent was served with the applicant’s Initiating Application, her Application in a Case, the affidavits of the applicant filed 25 November 2019 and 20 December 2019, and the sealed orders of 15 January 2020, by electronic means on 21 January 2020. Having regard to that affidavit of service, I am satisfied that the respondent has had notice of the application before the Court and, further, that he has had notice of this hearing.
Section 51 of the Family Law Act 1975 (Cth) (“the Act”) provides that an application for a decree of nullity of marriage shall be based on the ground 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 of nullity is simply a declaration which confirms the fact that there was never a valid marriage.
Sections 23 and 23B of the Marriage Act 1961 (Cth) (“Marriage Act”) set out the grounds for a decree of nullity of marriage. Section 23B (1) of the Marriage Act sets out the bases upon which a marriage is void, and provides:-
(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 identity of the other party or as to the nature of the ceremony performed; or
(iii)that party did not understand the nature and effect of the marriage ceremony; or
(e)either of the parties is not of marriageable age;
and not otherwise.
Section 23B (1) of the Marriage Act makes no specific provision for the current circumstances in which the parties find themselves. That is, having entered a valid marriage in China, they have entered a second marriage in Australia.
Whilst section 23B (1)(a) of the Marriage Act provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person, it does not contemplate a second marriage between the same parties. The applicant relies upon s 113(1)(a) of the Marriage Act in support of her application that the second marriage be declared void. That section provides that except in accordance with the section:-
(a)persons who are already legally married to each other shall not, in Australia or under Part V, go through a form or ceremony of marriage with each other;
The submission made on behalf of the applicant is that in circumstances where there is an express prohibition against a second marriage, such as that entered into by the applicant and the respondent in Melbourne, the second marriage should be declared void.
I am satisfied, having regard to the provisions of s 113(1)(a) of the Marriage Act, that the second marriage entered into by the parties is void, notwithstanding the fact that such circumstance is not specifically referred to in s 23B (1) of the Marriage Act.
That view is bolstered, having regard to the decision of Berman J in Zau & Huang [2015] FamCA 873 (“Zau & Huang”). Justice Berman considered circumstances similar to those of the applicant and the respondent in this case. In that decision, his Honour was considering parties who had entered into a marriage in China and subsequently entered into a second marriage in Australia. In determining that matter, his Honour held that:-
[19] The general prohibition on second marriage ceremonies in s 113(1)(a) does pose a problem. The relevant part of this section states that:
(1)Except in accordance with this section:
(a) persons who are already legally married to each other shall not go through a form of ceremony of marriage with each other.
The difficulty, possibly the hiatus in the legislation, is that the Marriage Act says nothing about the status of the second marriage ceremony in contravention of the provision. Again, I think commonsense and logic must be brought to bear, and I consider that any such marriage ceremony must be devoid of any legal effect, and therefore a nullity, and the marriage itself, in this case the Australian marriage, must therefore be void.
[20]Section 23B(1) however, makes no provision for the situation just enunciated. Section 23B(1)(a) declares a marriage to be void where:
… either of the parties is, or at the time of the marriage, lawfully married to some other person…
but it is silent about the effect of a marriage where both of the parties are already lawfully married to each other. Again, I consider logically, such a marriage must also be void, notwithstanding that it is not referred to in s 23B(1), and that notwithstanding the apparently exclusive nature of the words, and to otherwise at the conclusion of the subsection.
Whilst s 113(1)(a) of the Marriage Act provides a general prohibition in relation to second marriage ceremonies, it does not address the status of any second marriage ceremony entered into in contravention of that provision. I respectfully agree with the statements of Berman J in Zau & Huang that it is a matter of logic and common sense that having regard to the provisions of s 113(1)(a) and s 23B(1)(a) of the Marriage Act, any such second marriage ceremony must be void of any legal effect, and therefore a nullity.
Accordingly, I am satisfied that the second marriage is void and will make a declaration accordingly.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 March 2020.
Associate:
Date: 11 March 2020