Decree of nullity of marriage: A remedy for the hopeful

12 February 2014

Originally published in the Jan/Feb edition of the Law Institute Journal and written by Moores Principal Stephen Winspear and Lawyer Brendan Herbert discuss the law as it stands on annulment of marriage.

Today’s environment has removed the social stigma associated with divorce for most people, but there are still clients who want to obtain a decree of nullity of marriage as an alternative.

Since the 1970s the rate of divorce has increased, in part due to changing social attitudes and changes in law including no-fault divorces. However there are some people, for various reasons including religion and culture, who want their marriage nullified. This article will consider this very old, occasionally used, and much misunderstood remedy in the family law jurisdiction.

Nygh J in Osman and Mourrali1 commented that he couldn’t understand why an applicant would seek a decree of nullity given the ease with which one could obtain a divorce stating at [77] that: “the ground for divorce of one year separation requires no investigation of guilt and cannot produce any stigma”. However, in some cultures and faiths within Australia, there is still a stigma associated with divorce, particularly for women. Some believe that obtaining a decree of nullity rather than a divorce order will prevent, or at least reduce, the social stigmatisation and ostracism of a failed marriage.

A decree of nullity is a finding that the marriage is void. The marriage ceremony had no legal effect. It is a declaration from the Family Court of Australia2 stating that there never was a valid marriage – that the marriage was never originally legal. It is important to note that a decree of nullity does not dissolve a marriage like a divorce does as dissolution of marriage acknowledges the existence of a marriage.

A total of 76 applications for final orders for validity/nullity of marriage were filed in the Family Court of Australia between 1 July 2009 and 30 June 2012. From these applications, 33 decrees were granted. The remaining 43 applications were discontinued (11), dismissed (22), settled (2) or withdrawn (8).

The grounds for a decree of nullity are set out in the Marriage Act 1961 (Cth).3 A marriage may only be invalid where:

  • A party is lawfully married to another person (bigamy) (s23B(1)(a));
  • The parties are within a prohibited relationship (too closely related) (s23B(1)(b));
  • The ceremony was not official because certain formal requirements were not followed (s23B(1)(c));
  • The consent of either of the parties to the marriage was obtained through duress, fraud or mistake; or lacking due to either party not having the mental capacity to enter into marriage (s23B(1)(d) (i),(ii),(iii); or
  • One party was not old enough to marry (s23B(1)(e)).

Take for example a recent inquiry. A woman from Sri Lanka had met her husband, also from Sri Lanka, in Melbourne. After two months she agreed to marry him. A marriage ceremony was planned to take place in Melbourne, followed by a second ceremony in Colombo, Sri Lanka later that year. Their respective parents began making arrangements for the Colombo ceremony and the marriage generally.

The wife was a post-graduate student living in Melbourne and the husband was an IT professional based in Brisbane. The husband had permanent resident status in Australia and the wife was a temporary resident holding a student visa. The wife had applied for permanent residency by way of a partner visa. The husband encouraged the wife to marry in Australia quickly, suggesting the marriage might accelerate her visa application. They married in a civil marriage ceremony at the Victorian Marriage Registry before two adult witnesses.

The couple did not live together and did not consummate the marriage.4 Soon after the wedding, the husband returned to Brisbane and the wife continued to live in Melbourne. According to the wife, the husband showed his true personality, becoming very controlling and possessive of her. At the same time, their parents were becoming divided on the Colombo wedding plans, with the husband’s family putting demands on the couple and pressure on the wife’s family with respect to dowry and other issues.

The husband and wife cancelled the Colombo wedding ceremony and ended their relationship.

The marriage ceremony – compliance

The Marriage Act provides a list of formalities required to solemnise the marriage.

  • the ceremony must be solemnised by an authorised celebrant (s41);
  • notice in writing of the intention to marry must be provided to the celebrant, between one and 18 months prior to the ceremony (s42);
  • two witnesses aged over 18 must be present (s44);
  • the authorised celebrant must explain the nature of the marriage relationship. The couple must be reminded “of the solemn and binding nature of the relationship . . . voluntarily entered into for life” (s46);
  • a marriage certificate must be prepared and signed by the celebrant. The marriage certificate is treated as conclusive evidence that the marriage was solemnised according to law.
  • although the law states that the above must be complied with, a failure to comply with any, or even all of these formal requirements will not necessarily mean that the marriage is invalid (s48);
  • where the ceremony is a civil one (not religious), each of the parties must say “I call upon the persons here present to witness that I, take thee, to be my lawful wedded wife (or husband)” or words to that effect (s45).

A marriage may be invalid if both parties to the marriage have knowledge that the celebrant is unauthorised. If either party believed that the celebrant was lawfully authorised, this will be sufficient to show an intention of the parties to become the lawfully wedded spouse of the other (s48(3)).

On the facts provided in our example, the marriage will not be invalid on the grounds that formalities were not complied with.

Capacity to marry

A marriage is invalid if certain capacity issues are present. For instance, the marriage will only be valid if it is between a man and a woman (ss5 and 46(1)) to the exclusion of all others – neither party can already be married to another person (s23B(1)(a)5; and the relationship must not be a prohibited one – that is, parties must not be too closely related (s23B(2)–(6))6. Both parties to the marriage normally need to have reached marriageable age (ss11 and 23(B1)(e))7.

In the recent case of Wright and Wright8 the parties had married in London in January 2004, before subsequently marrying in New South Wales, asserting they had never been married before. The parties were granted a divorce order in the Federal Magistrates Court in respect of the marriage ceremony that was solemnised in London. Given that the parties were legally married when they involved themselves in the Australian ceremony, the Court was satisfied that that ceremony had no legal effect and a declaration of nullity was granted.

Where a person is already married, and enters a second purported marriage without the first marriage having been dissolved (by divorce or death of a party, for instance), the second marriage will be void.

Consent to marry

A marriage is required to be a union voluntarily entered into. It will be void if one of the parties had not entered into it consensually. Consent will not be real where:

  • it was obtained by duress or fraud (s23B(d)(i));
  • either party is mistaken as to the identity of the other party or as to the nature of the ceremony performed (s23B(d)(ii));
  • either party is mentally incapable of understanding the nature and effect of the marriage ceremony (s23(1)(d)(iii)); or
  • either of the parties was not of marriageable age (s23(1)(e)).

Duress

If a person is coerced into a marriage the marriage will be invalid (s23B(1)(d)(i)).9

The Family Court considered the issue of duress in the case Marriage of S.10 In that case, the applicant and her family had moved to Australia from Egypt. She was married in a Coptic Orthodox Church in Australia under pressure from her parents when 16 years of age. It was an arranged marriage and the applicant had not wanted to go through with the ceremony, but had given in to parental pressure. She told the Court that: “. . . right up to the time of the ceremony I still did not want to go through with it. My parents, however, insisted I go through with it and I could not stand up against them”11.

In that case, the Court determined that the consent to the marriage was obtained by duress and the marriage was void. In the decision, Watson J stated that the applicant was: “. . . caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience”.12

The duress must be at the time of the marriage, not some previous time. In the case of Marriage of Teves and Campomayer13 the applicant complained that the consent was obtained by duress, including alleged physical violence and rape. The Court said that the applicant needed to show that at the time of the marriage ceremony, some overbearing force was operating. Because some time had lapsed between the incidents and the ceremony, the Court determined that the incidents had minor relevance to the question of duress. The application for nullity was dismissed.

These decisions show that the Court will only grant a decree of nullity based on duress in extreme circumstances, where one or both parties are suffering a great deal of mental oppression based on the pressure to marry at the time that the ceremony is taking place. It is not sufficient that the stronger will of one party is imposed on the weaker or more impressionable character of the other.14

In our example, the wife complained of pressure to marry from her family and her husband’s family. However, the required level of pressure is high – akin to oppression, and that high level was not present in our case. The marriage will not be invalid on the grounds of duress.

Fraud

The Court applies a very limited scope to the term “fraud” as it appears in the Marriage Act. The untruth must be so serious that one person, in relying on the untruth, could not be said to have truly consented to the marriage. In The Marriage of Hosking15 the Court clarified that the concern is with fraud relative to the identity of the other party or as to the nature of the ceremony, and not to the motives of either party in entering into a marriage. It decided that a Court should never be entitled to say that a party’s reasons for marriage are so improper that it will declare the marriage invalid.

Fraudulent misrepresentations about financial capacity, qualifications, beliefs or true personality are not sufficient to make out fraud for the purposes of nullity.16

In Marquis and Marquis17 the husband sought a declaration of nullity on the grounds that he was induced to marry by fraudulent declarations of love. He claimed that shortly after the wedding, the wife indicated that her real motive for the marriage was to gain permanent residency in Australia. The application was dismissed on the basis that the fraud did not go to the party or the nature of the ceremony, rather it went to the individual motives which the wife may have had for marrying.

The fraud must be perpetuated on the other party, not some third party (in this case, the Australian Government).18

In our example, the wife complained that the husband showed his true personality after the marriage when he became domineering and possessive of her. This will not satisfy the Court that fraud had been committed against her. Although the acceleration of her visa application may have been the true reason for the marriage, this will not invalidate the marriage. There is now a fairly long list of “immigration cases” where applications for nullity of marriage on similar grounds have been unsuccessful.

Mistake

The concept of mistake relies on the absence of consent to marry on the basis of either a mistake as to the identity of the person or as to the nature of the ceremony (s23(1)(d)(ii)). Again, the Court sets a high threshold. The mistake must be so serious that he or she did not truly consent to the marriage.

In the case of AK v NC19 the Court stated that all that is required is a general understanding of marriage and its consequences, or an understanding of the specific consequences of the particular marriage that the person is about to enter into. The question of identity must be a fundamental mistake about the actual person being married and does not relate to deception about the person’s real name, background, level of wealth or other peripheral matters.

In the case of C and D20 it was held that a woman who married a hermaphrodite was mistaken as to the other party’s identity as she believed the person to be a man and was unaware of the person’s hermaphrodite background. The application was granted for two reasons. First, that the wife had been mistaken about the identity of the person she had married; her consent was therefore not a “real consent”. The second reason was biological – that the husband, who was reared as a male, possessed both male and female gonads (one ovary and one testis), a short penis, a tiny uterus, an elemental vagina and formed breasts, and possessed a female chromosomal pattern.21

Mental incapacity

A person cannot be said to have given real consent to a marriage if he or she is mentally incapable of understanding the nature and effect of a marriage ceremony and appreciating that it involves the responsibilities normally attached to marriage.20 Senility may result in mental incapacity. If a party is suffering from a mental illness such that he or she does not appreciate or understand the real effects of the ceremony then the marriage may be deemed void.

Summary

The Family Court will only grant a decree of nullity in extremely limited circumstances and this is rarely a viable alternative to divorce. Compared to bringing a nullity application, it is not difficult to become married, and now, in the age of unilateral, no-fault divorce, a divorce is easier to obtain. The law on divorce has adapted to stay relevant to societal change. The law on nullity has become harder22 and there remain serious limitations on the availability and use of this remedy.

Based on the information that our client provided to us, even if the application is unopposed, the likelihood of a decree of nullity being granted in the Family Court is extremely low.

In the event that one party chooses to make an application for a decree of nullity in the Family Court, the other party might make a cross-application for a divorce order in the Federal Circuit Court. The applications may have to be consolidated in the Family Court. Not surprisingly, in that situation, the Family Court must decide the nullity application first. Only after dismissing that application will it decide the divorce application, one of the essential grounds of which is the proving of a valid marriage.23

STEPHEN WINSPEAR of Moores' family law department, past chair of the LIV family law section, current chair of the collaborative practice section, and happy to seldom use archaic law. BRENDAN HERBERT is a lawyer with Moores, providing advice on all aspects of family law.

Originally published in the Law Institute Journal

1. Osman and Mourrali (1989) 96 FLR 362.

2. Family Law Act 1975 (Cth) s51. Note that the Federal Circuit Court does not have jurisdiction to decide applications for nullity or validity of marriage: Family Law Act 1975 (Cth) s39(1A).

3. All section references are to this Act unless otherwise stated.

4. Non-consummation is no longer grounds on which a marriage is void. Under the Matrimonial Causes Act 1959 a marriage was voidable where at the time of marriage either party is incapable of consummating the marriage (s21(1)(a)); unless the person who was incapable was not aware of the existence of the incapacity at the time of marriage (s48(a)).

5. See also Crimes Act 1958 (Vic) s64; and Marriage Act 1961 (Cth) s94, under which the offence of bigamy carries a maximum penalty of five years imprisonment.

6. Prohibited relationships are those between a person and an ancestor or descendant of the person; or between a brother and a sister (whether of the whole blood or the half-blood). A woman may not marry her father, grandfather, son, grandson or brother (full or half-brother) and a man may not marry his mother, grandmother, daughter, granddaughter or sister (full or half-sister). An adopted child is in the same position in relation to his adopted family and his natural family. Prior to the Family Law Act 1975 (Cth), the Matrimonial Causes Act 1959 (Cth) also prohibited relationships by marriage.

7. A person between 16 and 18 years (a minor) may apply to a judge or magistrate for an order authorising him or her to marry (s12(1)). The circumstances must be so exceptional and unusual as to justify the making of the order (s12(2)(b)). If this order is granted the marriage must take place within three months of the order being granted (s12 (5)). Ex parte Willis (1997) 136 FLR 443.

8. Wright and Wright [2012] FamCA 216.

9. Szechter v Szechter [1970] 3 All ER 905.

10. Marriage of S (1980) 42 FLR 94.

11. Note 10 above, pp98-99.

12. Note 10 above, p103.

13. Marriage of Teves and Campomayer (1994) 122 FLR 172.

14. Zacharia and Paradisio [2008] FamCA 688.

15. The Marriage of Hosking (1994) 121 FLR 196.

16. In the marriage of Otway (1986) 11 Fam LR 99; K and A [2006] FamCA 305.

17. Marquis and Marquis [2012] FamCA 137; A v B [2006] FamCA 161.

18. The problem of immigration fraud may now be diminished by changes to the Migration Act 1958 (Cth). Permanent residence was granted as a consequence of marrying an Australian citizen, this is no longer the case.

19. AK and NC (2003) 32 Fam LR 16.

20. C and D (1979) 28 ALR 524. See also Corbett v Corbett [1971] JP 83; R v Tan & Ors [1983] QB 1053.

21. The decision has been criticised as resulting in an unacceptable outcome. Being neither man nor woman, D could not enter a valid marriage. See H A Finlay “Sexual Identity and the Law of Nullity” (1980) 54 Australian Law Journal 115.

22. In the Estate of Park; Park v Park [1953] 2 All ER 1411.

23. The Family Law Act 1975 abolished the categories of voidable marriages, previously available under the Matrimonial Causes Act 1959 (Cth) s21(1). Prior to the Family Law Act, a marriage was voidable where (a) either party to the marriage is incapable of consummating the marriage; (b) either party to the marriage is (i) of unsound mind; or a mental defective; (c) either party to the marriage is suffering from a venereal disease in a communicable form; or (d) the wife is pregnant by a person other than the husband.

24. Family Law Act 1975 (Cth) s52.


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