Warahi

[2017] NZHC 115

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-454-000109 [2017] NZHC 115

IN THE MATTER

of an application under s 15 of the

Marriage Act 1955

HENARE TE WHETU WARAHI AND BARBARA WAI WARAHI APPLICANTS

Hearing:	9 February 2017
Counsel:	T C Montague for Applicants
Judgment:	9 February 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 February 2017 at 3.45 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

WARAHI [2017] NZHC 115 [9 February 2017]

Introduction

[1]      Barbara Warahi’s late husband, Harry, was Henare Warahi’s son. Mr Warahi and Ms Warahi wish to marry but their relationship of father-in-law and daughter-in- law means that marriage between them would be void without the consent of this Court. They have therefore applied for consent to marry and for leave to bring their application by way of originating application.

[2]      An application for consent to marry under s 15 is not identified in r 19.2 of the High Court Rules as one that must be made by way of originating application. However, I am satisfied that the originating application procedure is the appropriate one for the present application. In particular, there are no identifiable parties who would be adversely affected by the order sought so that service on other parties is unnecessary.

Marriage Act 1955

[3]      Section 15 of the Marriage Act provides that:

(1)      Subject  to  the  provisions  of  this  section,  a  marriage  which  is forbidden by the provisions of Schedule 2 to this Act shall be void.

(2)       Any persons who are not within the degrees of consanguinity but are within the degrees of affinity prohibited by the said Schedule 2 may apply to the [High Court] for its consent to their marriage, and the Court, if it is satisfied that neither party to the intended marriage has by his or her conduct caused  or  contributed  to  the  cause  of  the  termination  of  any  previous marriage of the other party, may make an order dispensing with the prohibition contained in Schedule 2 to this Act so far as it relates to the parties to the application and, if such an order is made, that prohibition shall cease to apply to the parties.

(3)       The Registrar of the Court where any order under this section is made shall send a copy in duplicate of the order to the Registrar-General.

(4)       No marriage not forbidden by the provisions of Schedule 2 to this

Act shall be void only on the ground of consanguinity or affinity.

[4]       Schedule 2 includes among the relationships that are within the prohibited degrees  of affinity as  that  of a man  and  his  son’s  wife and  a  woman  and  her husband’s father, whether the spouse of the applicant is alive or dead or whether the marriage was terminated by death, divorce or otherwise.

[5]      The power to grant consent is discretionary and is subject only to the pre- requisite that the Court “is satisfied that neither party to the intended marriage by his or her conduct caused or contributed to the cause of the termination of any previous marriage of the other party”. This does not connote any onus of proof but merely that requirement that the Judge reach a state of being satisfied as to the pre-requisite.

The application

[6]      Mr Warahi and his late wife, Johanna Warahi, had ten children, including

Harry.  Johanna died of natural causes in 2004.

[7]      Harry  and  Barbara  Warahi  were  married  for  eight  years.  They  had  no children. Harry died of natural causes in 2006.

[8]      While Barbara and Harry were married, they lived with Harry’s parents; Harry’s  health  was  poor and  his  parents  helped  Barbara to  care  for  him. After Johanna died Harry and Barbara continued to live with Mr Warahi. After Harry died Barbara remained living in the house with Mr Warahi and eventually an intimate relationship developed between them.

[9]      Mr Warahi is now 78 and Ms Warahi 56. In their respective affidavits they speak  of  the affection  and  respect  between  them.    Mr Warahi  deposes  that  his surviving children (all adults) support the marriage. The application has not been served any other party but there is no basis for thinking that any other party could have a legitimate interest in this marriage or be adversely affected by it.

[10]     Nor  do  the  circumstances  described  in  Mr  Warahi’s  and  Ms  Warahi’s affidavits give any reason to suppose that either contributed to the termination of their previous respective marriages.  To the contrary, the affidavit evidence of both confirms genuine circumstances through which they came to be living together and

to have embarked on their relationship.1

1      Cf Re S and B [2012] NZHC 1121, [2012] 3 NZLR] 87, [2012] NZFLR 531, (2012) 28 FRNZ

806.

[11]     I am satisfied that pre-condition in s 15(2) is met and that it is proper to consent to the application. I accordingly grant the application and make an order

consenting to the applicants’ intended marriage.

P Courtney J