Zau & Huang
[2015] FamCA 873
•13 October 2015
FAMILY COURT OF AUSTRALIA
| ZAU & HUANG | [2015] FamCA 873 |
| FAMILY LAW – NULLITY – where a declaration of nullity is sought – where the parties were married in China – where the parties underwent a second marriage ceremony in Australia – where the parties sought a divorce order in China and it was granted – where consideration is given to circumstances in which a marriage is found it be void – where it is found that the Australian marriage is void – where the matter had been adjourned for the purpose of proper service and certified Chinese translation of documents. |
Family Law Act 1975 (Cth) ss 51, 102
Marriage Act 1961 (Cth) ss 23, 23B, 88C, 88D, 88G, 113
| In the marriage of Kapadia (1991) 103 FLR 470 |
| APPLICANT: | Mr Zau |
| RESPONDENT: | Ms Huang |
| INTERVENOR: |
| FILE NUMBER: | ADC | 2033 | of | 2015 |
| DATE DELIVERED: | 13 October 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 13 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Konieczka |
| SOLICITOR FOR THE APPLICANT: | M K Legal & Migration |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the marriage between Mr Zau and Ms Huang solemnised on … 2014, be declared null and void.
That the following documents be Exhibit “1” in the proceedings:
(a) letter to the wife dated 17 July 2015;
(b) affidavit of husband filed 9 June 2015; and
(c)order of this Court dated 26 August 2015, together with Chinese translations.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Huang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2033 of 2015
| Mr Zau |
Applicant
And
| Ms Huang |
Respondent
REASONS FOR JUDGMENT
By way of Initiating Application filed 9 June 2015, Mr Zau, the applicant husband, seeks an order that the marriage between Mr Zau and Ms Huang solemnised in early 2015 be declared invalid and nullified. In effect, what is sought by the applicant husband is a declaration of nullity.
The circumstances and background to the application are in some respects unusual and create some interesting technicalities in terms of whether in the circumstances as presented by the applicant husband a declaration of nullity can be given. As I have indicated to the husband’s counsel, I propose to make the declaration as sought, but because of the interesting factual matrix which underpins the application, it is of some value that reasons be given.
The husband was born in 1986 in a province in China. As at the date of the application, he is some 29 years of age. He lives and works in Adelaide and has employment. He came to Australia in 2001 by way of a Higher Education Student Visa in order to study. He gained permanent residency in late 2008 and now presents to the Court as an Australian citizen, that having been conferred upon him in mid-2012. I am entirely satisfied as to the personal background and circumstances of the husband as presented in his affidavit in support of his Application filed 9 June 2015.
The husband met his former wife, Ms Huang, in October 2013 in the city of Shanghai. A relationship started in October 2013 and the parties were married in China in 2014. The husband’s affidavit annexes by Annexure “B” a copy of the Chinese marriage certificate. Helpfully, that is also accompanied by an English translation. Following the marriage in China, the parties came to Australia in January 2014 and it appears to be uncontroversial that the wife entered Australia on a visitor’s visa which had been previously applied for.
For reasons that are uncertain, but create the somewhat unusual circumstances in which this application is founded, the parties considered that their Chinese marriage needed to have greater or perhaps locally-recognised formality and that would be best achieved by the parties undergoing a formal marriage ceremony in Australia. Paragraph 13 of the husband’s affidavit says that, as far as he was concerned, the belief of the parties, was that the marriage in China was not relevant and that it was necessary for the parties to marry in their new country according to the laws of Australia.
Importantly, though, at the time of marriage in early 2014, the parties did not disclose that they had undergone a marriage ceremony in China. As a result of the marriage and the circumstances of the parties, the wife applied for and was granted a temporary partner visa on 15 April 2015. The affidavit of the husband discloses, however, that the marriage was an unhappy one. The parties had irreconcilable differences, and, without there being any significant or comprehensive information provided, it appears that those differences were such that the parties determined that they were not able to reside together.
As far as the husband is concerned, he says the basis was the pursuit of their separate professional careers, with the husband considering his future would now be best served in Australia, whereas his wife considered that her circumstances would be best served by a return to China where she would continue with and re-engage with her family and her family’s business interests in China. In any event, that is what happened, and to the extent that the concept of irreconcilable differences has any relevance to the current application, I am satisfied that the parties are indeed separated and have lived separately and apart from a date soon after their marriage.
The parties, however, determined that the marriage in China needed to be dissolved and a divorce order was granted on 28 April 2015. I have been provided with a copy of the Chinse divorce certificate with an English translation and I am satisfied as to the veracity of that document. The short summary of that somewhat complex history is that at the time the parties underwent a marriage ceremony in Australia they had already undergone a marriage ceremony in China.
The matter came before me on 26 August 2015 and, on that occasion, the husband was represented by counsel and there was no appearance by the respondent or any legal representative appearing on her behalf. Whilst in the general sense I accepted the matters that were being put to me, I was concerned that there was no document evidencing clear service of the application, the affidavit and other relevant materials on the wife. I considered that before the application could proceed that process would need to be completed. I adjourned the proceedings to 13 October 2015 to enable that to occur.
The order made on 26 August 2015 sets out the documents that I considered were important to be served upon the respondent wife. An affidavit of service has been filed on 8 October 2015 which sets out service on the wife of the following documents:
1) the document setting out the order sought;
2) the narrative comprising the husband’s affidavit in support of the application; and
3) a document entitled Important Notice to the Respondent.
A copy of my order of 26 August 2015 was also served. It is important to note that the documents filed in this court and then the subject of service on the wife were also accompanied by certified Chinese translations. I am satisfied that despite the non-appearance of the respondent wife today she has received the documents and, importantly, she has received them in a form that she is able to read, understand and come to an informed position as to whether she seeks to oppose or take no part in the proposed application.
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 s 88C(1)(a) and s 88D(1) of the Marriage Act 1961 (Cth) (Marriage Act). Local law is interpreted to mean the law enforced 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 regulation 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. Whilst not relevant in this case, even where a document does not qualify as a certificate of marriage within the meaning of s 88G, it may still be admissible as a record of marriage within the meaning of s 102 of the Family Law Act 1975 (Cth) (“the Act”). This is because a document within the meaning of s 102 is an historical recitation of an event and does not have to be an official document.
Section 102 of the Act provides that the 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 significant is the true or official seal or signature of the court which issued it. I am satisfied in this case both as to the veracity of the documents evidencing the Chinese marriage and the documents evidencing the marriage in Australia.
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 s 23, and 23B of the Marriage Act. The grounds under s 23B are as follows:
1)either of the parties is, at the time of marriage, lawfully married to some other person;
2)the parties are within a prohibited relationship, as defined in the Act;
3)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;
4)the consent to the marriage of either of the parties is not a real consent because it was obtained by duress, fraud, there was mistaken identity, or a party to the marriage was mentally incapable of understanding the nature and effect of the marriage; or
5)either of the parties were not of marriageable 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 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, of course, is the very factual circumstance that presents itself in this matter. This is a case where the parties have gone through a second marriage ceremony to a person, namely each other, in circumstances where they are already married.
It would seem sensible that the words, and not otherwise should be interpreted broadly, and not read literally. Commonsense would suggest that the second marriage, in circumstances where the parties were already validly married, in this case, in China, should be considered void. Section 113 of the Marriage Act makes provision for a second marriage ceremony, but only in two circumstances, that is, to enable a subsequent religious ceremony of marriage to take place, as provided for in s 113(5), or to resolve doubt concerning the validity of proof of a prior marriage, s 113(2).
Section 113(1)(a) otherwise prohibits parties going through a second marriage ceremony with each other. It is clear from the provisions of s 113(2), that the effect of a second marriage ceremony, which is celebrated to resolve doubt concerning the validity of a prior ceremony, is to confer validity upon the parties’ matrimonial union from at least the time of the second ceremony. That, of course, is not the circumstances in this case. It is not suggested that the parties had any doubt or misgiving that their marriage in China was uncertain, invalid or may need to have been the subject of reinforcement. For reasons that are not absolutely clear, the parties simply determined that they would marry in Australia, and not advise the relevant authorities of their prior marital status.
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.
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.
In Kapadia & Kapadia (1991) FLC 92-245the parties were legally married on two occasions; the first in Fiji, the second in Australia. The husband sought a decree of dissolution of both of those marriages. At page 78,668, Kay J said 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 were really exclusive, marriage between persons of the same sex would be valid, for there is no ground of nullity which covers this situation either. The possibility of a valid homosexual marriage under current law is, however, an absurdity which only confirms the opinion of the ground of nullity in section 23B(1) are not in truth all embracing.
For those reasons then, I consider that the marriage solemnised by the parties on 11 February 2014 should be declared void, and therefore a nullity.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 October 2015.
Associate:
Date: 20 October 2015
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