Zau & Ruk

[2014] FamCA 709

FAMILY COURT OF AUSTRALIA

ZAU & RUK [2014] FamCA 709

FAMILY LAW – NULLITY – Application by the husband and wife seeking a decree of nullity – foreign marriage – consideration of whether the marriage is recognised as valid under Australian law – where the husband was married to first wife and still married at time of second marriage – whether a foreign marriage that is not required to be recognised as valid under Australian law is void – marriage declared null and void.

Family Law Act 1975 (Cth)

Marriage Act 1961 (Cth) ss 51, 88A, 88C(1)(a), 88D(2)(a), 94

In the marriage of Teves III and Campomayor (1994) 18 Fam LR 844

FIRST APPLICANT: Mr Zau

SECOND APPLICANT: Ms Ruk

FILE NUMBER: MLC 2888 of 2014

DATE DELIVERED: 29 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 1 July 2014

REPRESENTATION

COUNSEL FOR THE FIRST AND SECOND

APPLICANT:

Mr Ogge

SOLICITOR FOR THE FIRST AND

SECOND APPLICANT:

Neil Ogge Lawyers

ORDERS

IT IS ORDERED THAT

1. The marriage solemnised at City B in the Country C in 2013 between Mr Zau and Ms Ruk is declared to be absolutely null and void.

2. The initiating application for a decree of nullity filed 7 April 2014 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Ruk 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 MELBOURNE

FILE NUMBER: MLC 2888 of 2014

Mr Zau

First Applicant

And

Ms Ruk

Second Applicant

REASONS FOR JUDGMENT

1. The application listed before me in the Judicial Duty List on 1 July 2014 is the application filed 7 April 2014 on behalf of both the husband and wife. In that application the parties seek a decree of nullity on the grounds that at the time of their marriage in City B in 2013 the husband was still married to another person.

2. Both the husband and wife have filed affidavits in support of the application. The parties both affirmed their affidavits with the assistance of an interpreter. They have also filed a certified English translation of the original marriage certificate issued by the Civil Administration Ministry of the Country C.

3. Although this is an application for a decree of nullity of marriage, I will for the purposes of these reasons refer to the parties as “the husband” and “the wife”.

Background

1. The husband was born in City B in 1950 and is now 64 years of age. The wife was born in City B in 1968 and is now 45 years of age.

2. The husband deposes that in 1997 he married Ms D in Melbourne. On 26 March 2013 the Federal Magistrates Court of Australia (as it then was) at Melbourne made a divorce order in relation to his marriage to Ms D. That divorce order took effect on 27 April 2013.

3. On 1 April 2013 the husband and the wife participated in a ceremony of marriage in the mistaken belief that as a result of the order made by the Federal Magistrates Court on 26 March 2013 the husband was divorced from Ms D and on that basis free to remarry. 

Jurisdiction

1. Although the marriage the subject of these proceedings was solemnised in the Country C, the proceedings for a decree of nullity of that marriage are a “matrimonial cause” as defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”).

2. There is no requirement that the marriage be solemnised in Australia. Section 31(1)(a) of the Act confers jurisdiction on this Court with respect to ‘matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act’.

3. Pursuant to s 39(4) of the Act an application for a decree of nullity may be instituted if either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date, which is the date upon which the application was filed.

4. The husband was ordinarily resident in Australia and both the husband and the wife were present in Australia on the date the application was filed. On that basis, I am satisfied that the Court has jurisdiction to hear the application.

Legal Principles

1. Section 51 of the Act provides that ‘[a]n application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.’ There is no definition of what constitutes a void marriage in the Act however s 23B(1)(a) of the Marriage Act (1961) (Cth) (“the Marriage Act”) provides that a marriage which takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where ‘either of the parties is, at the time of the marriage, lawfully married to some other person’.

2. This provision does not assist in this case as Division 2 of Part III of the Marriage Act, of which this section forms part, applies only to marriages solemnised in Australia and marriages under Part V of the Marriage Act which deals with marriages of members of the Defence Force serving overseas.

3. Foreign marriages such as the marriage in this case may be recognised in Australia. The recognition of foreign marriage is dealt with in Part VA of the Marriage Act. Pursuant to s 88A, the object of Part VA of the Marriage Act is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978.

4. Section 88C(1)(a) of the Marriage Act provides for the recognition of a marriage solemnised in a foreign country where under the local law – that is the law of the country in which it was solemnised – the marriage was recognised as valid. However s 88D(2)(a) provides that a marriage to which this Part of the Marriage Act applies will not be recognised as valid if either of the parties was, at the time of the marriage, married to another person.

5. Although there is no evidence before me as to whether the parties’ marriage in the Country C was considered a valid marriage under the law in force in Country C, that is not fatal to the application in this case as, whether or not it was a valid marriage in the Country C, it is not, on the basis of s 88D(2)(a) of the Marriage Act, recognised as valid in Australia.

6. Although a divorce order with respect to the husband’s previous marriage to Ms D was made on 26 March 2013 it did not take effect until 27 April 2013. In those circumstances I am satisfied that the husband in this case was, at the time he and the wife purported to marry in the Country C, still married to his first wife Ms D and that, on that basis, the marriage between the husband and the wife ‘shall not be recognised [in Australia] as a valid marriage’ pursuant to the exception contained in s 88D(2)(a).

7. This gives rise to the question of whether a marriage, not recognised as valid in Australia, is void for the purposes of s 51 of the Act. In In the marriage of Teves III and Campomayor (1994) 18 Fam LR 844 Lindenmayer J drew a distinction between a marriage that is void and a marriage that is not recognised as valid in Australia. His Honour said at [849] as follows:

   At first I had some difficulty in accepting that submission because nowhere in Pt VA of the Marriage Act is it provided that a marriage entered into in a foreign country is “void” for the purposes of Australian law, in circumstances defined in s 88D(2), but only that in those circumstances it “shall not be recognized (sic) [in Australia] as valid” (emphasis added). This may be contrasted with ss 23 and 23B, which provide that a marriage to which either of those sections directly applies “is void” in those circumstances. However, on reflections (sic) I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognise, as valid, a marriage solemnized (sic) in a foreign country, that court could refuse to declare the marriage invalid (emphasis in original) (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court’s jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression “void” as the basis for a nullity application rather than … say “invalid” or “not valid”. In short, I conclude that if, in accordance with s 88D(2) of the Marriage Act, a marriage solemnized (sic) outside Australia is one which is required not to be recognized (sic) in Australia as valid, then it is “void” within the meaning of that term as used in s 51 of the Family Law Act.

8. I am satisfied that when the husband purported to marry the wife he was still lawfully married to another person. The marriage between the husband and the wife in this case is therefore, as described by Lindenmayer J, one which is required not to be recognised in Australia as valid and is hence void within the meaning of that term in s 51 of the Act.

9. On that basis I propose to accede to the application of the husband and the wife and grant a decree of nullity of their marriage.

Bigamy

1. Pursuant to s 94(1) of the Marriage Act it is an offence for a person who is married to ‘go through a form or ceremony of marriage with any person.’ For the purposes of the offence, strict liability applies to the ‘physical element of circumstance, that the person was married when the form or ceremony took place’ (s 94(1A)). The penalty for the offence is imprisonment for five years.

2. This matter was first listed for hearing before Justice Cronin in the Judicial Duty List on 3 June 2014.  At the commencement of the hearing before me on 1 July 2014, counsel who appeared on behalf of both the husband and the wife advised me that both parties were aware, following that first hearing, that the husband may have committed an offence and that during the period of the adjournment had given consideration to the possibility that the Court might refer the papers in this case to the appropriate authorities to determine whether the husband should be prosecuted in relation to that offence.

3. Although it is settled that the Court is entitled to report the commission of a possible offence to the appropriate authorities [see T and T (1984) FLC 91-588], that is not a consideration in this case as pursuant to s 8 of the Marriage Act, Part VII of the Marriage Act – which includes the offence of bigamy contained in s 94 – ‘applies to and in relation to:

   (a)marriages solemnised, or intended or purporting to be solemnised, in Australia; and

   (b)marriages solemnised, or intended or purporting to be solemnised, under Part V;

   and, in relation to such marriages, applies both within and without Australia.

4. The marriage in this case having taken place in the Country C and not being a marriage solemnised or purporting to be solemnised pursuant to Part V of the Marriage Act, the husband has not committed an offence pursuant to the provisions of the Marriage Act.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 29 August 2014.

Associate: 

Date:  29 August 2014