Zhenya & Shi

[2025] FedCFamC2F 238

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Zhenya & Shi [2025] FedCFamC2F 238  

File number:

HBC 951 of 2024

Judgment of:

JUDGE TURNBULL

Date of judgment:

25 February 2025

Catchwords:

 FAMILY LAW – MARRIAGE – Whether the Applicant’s marriage to the Respondent is void – whether decree of nullity should be issued – where the Applicant was married to a third party at time of her marriage to Respondent.

Legislation:

Family Law Act 1975 (Cth)

Marriage Act 1961 (Cth)

Division:

Division 2 Family Law

Number of paragraphs:

10

Date of last submission/s:

25 February 2025

Date of hearing:

20 and 25 of February 2025

Place:

Hobart

Counsel for the Applicant:

Appearing in Person with the assistance of Ms Smith, the duty lawyer

Counsel for the Respondent:

Appearing in Person with the assistance of Ms Smith, the duty lawyer

ORDERS

HBC 951 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ZHENYA

Applicant

AND:

MR SHI

Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	25 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Pursuant to section 51 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth), the marriage solemnised between Ms Zhenya and Mr Shi in 2019 at Suburb B, Victoria, Australia, is declared null and void.

2.A Decree of Nullity is made in respect of the marriage solemnised in 2019 between Ms Zhenya and Mr Shi.

3.All extant applications are dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TURNBULL

Overview

1. On 12 November 2024, Ms Zhenya (‘Ms Zhenya’) filed an application seeking a decree of nullity of her marriage to Mr Shi (‘Mr Shi’), solemnised in 2019.

2. Ms Zhenya asserts that at the time she entered her marriage with Mr Shi, she was still legally married to her estranged partner Mr D (‘Mr D’). A divorce order in relation to her marriage with Mr D was not made until 2020, as confirmed by the copy of that document annexed to Ms Zhenya’s second affidavit.

3. Mr Shi filed an affidavit in the proceedings, in which he agreed that a decree of nullity should issue in relation to his marriage to Ms Zhenya.

   Background

4. Ms Zhenya was born in Country C in 1977 and is an ordinary resident in Australia. Mr Shi was born in Country E in 1978 with his domicile in Australia.

5. There are no children of the relationship, however, there is one child of Ms Zhenya’s relationship with Mr D, namely, X born in 2013.

6. The marriage certificate annexed to Ms Zhenya’s first affidavit states that both she and Mr Shi were residing at F Street, Town G in Tasmania at the time they were married, and that Ms Zhenya was divorced whilst Mr Shi had never validly married. The entry relating to Ms Zhenya was clearly incorrect as at the time of the date of marriage and the registration of their marriage —2019 — Ms Zhenya was not divorced from Mr D.

   The Law

7. Section 51 of the Family Law Act 1975 (Cth) provides that a decree of nullity of marriage, “Shall be based on the ground that the marriage is void.” The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth):

   23B Grounds on which marriages are void

   (1) A marriage to which the Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   (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 is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (iv) either of the parties is not of marriageable age;

   and not otherwise.

   (Emphasis added)

   Consideration

8. The evidence establishes that Ms Zhenya was legally married to Mr D at the time her marriage to Mr Shi was solemnised. Ms Zhenya was not able to legally marry Mr Shi until after the Divorce Order, made in relation to her marriage with Mr D, became absolute in 2020.

   Conclusion

9. I am satisfied that Ms Zhenya was lawfully married to another person when her marriage to Mr Shi was solemnised. As such the marriage between Ms Zhenya and Mr Shi at Suburb B in Victoria, Australia, in 2019 is void, and a Decree of Nullity must issue in relation to the same.

10. I will make the order and decree as set out at the commencement of these Reasons.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

Associate:

Dated:       25 February 2025