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Marriage is Void in Some Circumstances

In the recent case of Breust & Devine [2016] FamCA 892, Justice Thornton of the Family Court granted the Applicant a decree of nullity of marriage in circumstances where she was mistaken about the nature of the marriage ceremony, primarily because she did not understand English and the ceremony was not interpreted for her.

An Application for a Decree of Nullity pursuant to section 51 of the Family Law Act 1975 (Cth) requires the marriage to be void.

Section 23B(1)of the Marriage Act 1961 (Cth) sets out the limited grounds on which a marriage is void. Those grounds are as follows:

  • Either of the parties is, at the time of the marriage, lawfully married to some other person;
  • The parties are within a prohibited relationship*;
  • By reason of section 48 the marriage is not a valid marriage;
  • The consent of either parties is not a real consent because:
    • It was obtained by duress or fraud;
    • That party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
    • That party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
  • Either of the parties is not of marriageable age.

In this matter, the Applicant relied on subsection 23B(1)(d)(ii), that she was mistake as to the nature of the ceremony performed.

The Applicant led evidence that after she and the Respondent had known each other for a few months, she attended a ceremony that she believed was a ‘promise night’ which she described as:

“When the guy promises the girl and her family that he is serious about commencing a relationship, and that he has a genuine intention of becoming married.

After a promise night, it is then seen to be appropriate for the couple to go out to dinner, parties and other events”

The Applicant believed the ‘promise night’ was a way of registering the parties’ relationship, which in turn would assist the Respondent to obtain work. The Respondent was living in Australian on a temporary visa at the time and was not allowed to work.

The ‘promise night’ was held in the backyard of a friend’s house and about 10 of the parties’ close friends and relatives were present. The Applicant wore a nice, yet basic dress and the Respondent wore a regular suit. A celebrant spoke in English for about 10 minutes, and asked the parties to sign a certificate. The Applicant was unable to understand, speak or read English at the time of the ceremony, and could not comprehend what was being said or written on the certificate she was asked to sign. No interpreter was available for the Applicant.

After the ceremony, the parties quickly rushed off to a friend’s child’s baptism and after the party they went to their respective homes.

Some months later the parties’ relationship deteriorated and the Applicant telephoned the celebrant to have their relationship deregistered. The celebrant advised the Applicant that she was in fact married and that she would need to wait 12 months before making an Application for Divorce.

The Applicant was in shock, deposing that this was the first time she had learned that she was married. Despite her lack of English, the backyard ceremony did not represent her idea of a marriage ceremony. Marriage ceremonies in the Applicant’s culture typically involve large celebrations with between 300 and 600 guests. It was also a cultural expectation that the Applicant would be married in a Church.

The Court found that on the balance of probabilities, the Applicant’s lack of English and the context of the marriage ceremony, being in a back garden with few relatives and little celebration, the Applicant was not aware of the nature of the ceremony performed and therefore, she could not have given real consent to the marriage. Because the Applicant could not give real consent, the marriage was void and a Decree of Nullity granted.

If you are concerned about the validity of your marriage because you or the other party was not aware of the nature of the ceremony performed, please contact our team of experienced Family Law Solicitors at Armstrong Legal.

*prohibited relationships are defined in subsection 23B(2)(a) and (b) as being either between a person their ancestor or decedent, or between a brother and a sister.

Image Credit – Balint Roxana ©

Written by Karen Devey on June 9, 2017

Karen has a particular interest in dealing with complex parenting matters that involve mental health or addiction issues, relocation of children and child support agreements. She routinely deals with self-employed clients or matters involving family businesses. View Karen's profile

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