Topic 3: Nullity (Annulment of Marriage)

TOPIC 3: NULLITY (ANNULMENT OF MARRIAGE)

Monahan/Young, Chapter 5

Dickey, Chapters 8 - 9

Parkinson and Behrens, Part C Chapter 10

Cases marked with an * are particularly significant

Issues:

In this topic we consider the sole ground for annulment of marriage under the Family Law Act 1975 (Cth) - void marriage. In doing so, we consider relevant factors set out in the Marriage Act 1961 (Cth). In addition, we also consider the broader requirements for an annulment application in the Family Court of Australia.

Desired Outcomes:

An appreciation and understanding of the concept of annulment of marriage and the factors amounting to a void marriage as set out in the Marriage Act 1961 (Cth). In addition, an understanding of the relevant case law flowing from the statutory concepts.

1. PRELIMINARY MATTERS

· ‘principal relief’ is defined in section 4

· no definition of ‘ancillary relief’ (property, parenting disputes etc)

Three categories of proceedings:

· dissolution of marriage (ss 48, 49 and 50 FLA); or

· nullity (ss 51 & 52 FLA); or

· declarations of validity (s 113 FLA).

Distinction between nullity and dissolution of marriage

It is important to note that a decree of nullity does not dissolve a marriage - it has the effect of saying that there is no legal marriage between the parties, even though a marriage ceremony may have taken place: (see s51 FLA and ss23 and 23B of the Marriage Act 1961). Therefore, a party does not, strictly speaking, need a decree of nullity to remarry. It is also worth noting that a decree of nullity is a decree that takes effect as soon as it is made i.e the decree of nullity is absolute at first instance.

Note that if an application for a decree of nullity and an application for divorce order in relation to same marriage are before a court, court shall NOT make divorce order unless it has dismissed application for decree of nullity: s52 FLA.

2. NULLITY OF MARRIAGE: S 51 FAMILY LAW ACT 1975 (FLA)

(a) Ecclesiastical Law

· Distinguished between void and voidable marriages

· Illegitimacy issue

(b) Matrimonial Causes Act 1959

· s 18(1) nine grounds for a void marriage

· s 21(1) four grounds for a voidable marriage

(c) Family Law Act 1975

· The application for a decree of nullity is made pursuant to s 51 of the FLA based on the ground that the marriage is void.

· s23B Marriage Act 1961sets out the grounds on which a marriage may be declared void.

· Court can make/refuse to make decree of nullity based on facts and circumstances occurring before commencement of FLA and/or outside Australia: see s 53 FLA

3. VOID MARRIAGES: PART III MARRIAGE ACT 1961

Grounds on which marriage may be declared void: s 23B Marriage Act 1961 (MA)

· Compliance

· Capacity

· Consent

(a) Compliance ( formal invalidity)

· The parties did not comply with the laws in relation to the marriage in the place they were married.

· Invalid by reason of s 48 - see s 23B(1) (c)

· BUT Note s48 exceptions in s 42(2) to the effect that a marriage is NOT invalid because of breach of various specified provisions – i.e. failure to comply with requirements in ss 13,42,44 or 46 do not render a marriage invalid

· see also saving provision in s48(3) – re unauthorised celebrant

· In summary, 2 types of non-compliance will invalidate a marriage:

knowledge of both parties that celebrant unauthorised (s 48(3))

where form of marriage does not comply with s 45

(b) Capacity to marry (sex, bigamy, prohibited relationship, mental incapacity)

· sex (of the parties): see ss 5 MA definition of marriage and ss46(1)

‘Marriage, according to law in Australia is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.

· bigamy: s 23B(1)(a) [s 88D(2)(a)]/Penalties under both MA and NSW Crimes Act

· prohibited relationship: s 23B(1)(b) [s 88D(2)(c)] (see below)

· for prohibited relationship: see s 23B(2) and includes adopted and ex-nuptial children (s23B(3) –(6))

Man cannot marry:

· grandmother

· mother

· sister/half

· daughter

· granddaughter

Woman cannot marry:

· grandfather

· father

· brother/half

· son

· grandson

(c) Consent to marry (duress, fraud, mistake, mental incapacity & age)

· duress: s 23B(1)(d)(i) [s 88D(2)(d)]

· fraud: s 23B(1)(d)(i) [s 88D(2)(d)]

· mistake: s 23B(1)(d)(ii) [s 88D(2)(d)]

- mistake as to identity

- mistake as to the ceremony

· mental incapacity to understand nature & effect of marriage ceremony: s 23B(1)(d)(iii) [s 88D(2)(d)]

· not of marriageable age: see ss 11, 12, 23B(1)(e); [also see [ss 88D(2)(b), 88D(3)]

Note – the Court will NOT declare a marriage invalid on the following grounds:

· Non-consummation of the marriage

· Never having lived together

· Family violence or

· Other incompatibility situations.

*Aird & Hamilton-Reid [2007] FamCA 4

*Babich v Sokur and Anor [2007] FamCA 236

*Brokenshire and Rogers [2008] FamCA 680

*Zacharia and Paradisio [2008] FamCA 688

Moss v Moss (1897) P 263 (Eng)

Mehta v Mehta (1945) 2 All ER 690

Park v Park (1953) 2 All ER 1411

Szcheter v Szechter (1971) 3 All ER 905

Deniz and Deniz [1977] FLC 90-252

Suria and Suria [1977] FLC 90-305

In the Marriage of C & D [1979] FLC 90-636

In the Marriage of S [1980] FLC 90-820

Dunne and Brown [1982] FLC 91-232

Otway and Otway [1987] FLC 91-807

*Osman and Mourrali [1990] FLC 92-111

Teves and Campomayor [1995] FLC 92-578

Hosking and Hosking [1995] FLC 92-579

*In Re Kevin (Validity of Marriage of Transsexual) [2001] FLC 93-087

Bellinger v Bellinger (2002) 1 All ER 311

*Attorney-General for the Commonwealth and “Kevin” and “Jennifer” and the Human Rights and Equal Opportunities Commission [2003] FLC 93-127