Family Law in Australia PDF

FAMILY LAW IN AUSTRALIA law reforms in recent years, many of them aimed at improvinglawtheon children, it has not entertainedthe possibility of changing the 6.3 In addition to divorce, this chapter deals with vojd...

FAMILY LAW IN AUSTRALIA law reforms in recent years, many of them aimed at improvinglawtheon children, it has not entertainedthe possibility of changing the 6.3 In addition to divorce, this chapter deals with vojd sitdiuvatoriocne. declarations as tothe validity of marriage and divorce. This marriages, nullity and what constitutes breakdown and termination of a de facto chapter also The definition and significance of ade facto relationship the FLA are considered in Chapter 5. Unlike marriage and relafortionshithe p. considers formality required for parties to enter into and exit a de facto divorce, purposes there is no of question of fact in each case whether a de facto re lati relationship existed, and when the relationship ended. The jurisdictional the Act for de facto financial onshi its p. a requirements in Pt durat It is ion, proceedings relating toa VIlIAB of (defined in s 4(1) of the FLA) are set out in Chapters'de10facto matrimonial cavet (alteration of de facto property interests). It is necessary (maintenance) for the and 12 these provisions to ascertain first whether and when a application of de facto relationshin has broken down: see 6.153ff. Jurisdiction divorce and nullity 6.4 The FLA refers to the various judicial processes that can be heard in the Family Court of Australia including divorce, nullity and declarations of validity as matrimonial causes': see s 4(1),4 Due to their is usual to distinguish between 'principal relief and historical origins, it to matriMonial causes. Divorce, nullityand 'ancillary relief in relation declarations of validity are the only categories of principal relief still remaining after the introduction of the FLA.P The first of these is dealt with in ss 48-50 of the FLA: the second in ss 51 FLA. The power to make declarations generally is found in s 113 of and 520t ue this includes declarations of validity, or invalidity, of a the FLA, and marriage or a divorce 6.5 It is s39(1) of the FLAthat gives the FamilyCourt of Australia respect of matrimonial causes and, byvirtue of s 41(3), that jurisdiction to the only state family court, the Family Court of Western jurisdictiorn is exte Australia. The Supreme Court of the Northern Territory is the only state or territory Supreme Court still exercising jurisdiction under the FLA, and it has the same jurisdiction in respectof 4. See Lengyel v Rasad (1989) 13 Fam LR 648; (1990) FLC 192-112; (1989) 99 FLR 130, where it was confirmed that an of an application for a declaration as to the validity Overseas marriage was a 'matrimonial cause' within the 5. A Dickey, Family Law, Sth ed, definition in s 17* 6. See the definition of Lawbook Co, Sydney, 2007, 10-11, 47-8. 7. proceedings See r 2.01 of the Family Law Rules for principal 1984 relief" sets (Cth), which out the required formforeach ins 4(1). type of application. 8. to stateand While FLA s 39(1) gives territory Supreme Courts,jurisdiction in respect of matrimonial causes terminated the jurisdiction of state 328 Supreme Courts was  CHAPTER 6: NULLITY DIVORCE AND TERMINATION OF DE FACTO RELATIONSHIPS Family Court. While the FLA permits state and causesas the jurisdiction to hear undefended divorces," it also territory matrimonial summary envisages regulation.!" As a result, only three such courts currently courts of limited by maybe jurisdiction, 12 Finally, the Federal Circuit Court" has jurisdiction to this this matrimonialcauses exercise excepting nullityand declarations of validity,!4 Australia, the Family Court of Western Australia hear Family Court of the Thus,Supreme Court of the Northern Territory can hear any divorce, nullity matter, the Federal Circuit Court may hear divorce applications, andthe declaration summary jurisdiction can hear undefended divorces. Divorce or COurts of anda feW now filed electronically and must be filed in the Federal Circuit applications are Australia.1s Courtof 39(3)and (4) of the FLA specify the jurisdictional nexus requirements 66 Section matrimonial causes. For divorce applications, on the applicants in respect of citizen or domiciled in for one of the parties must be an Australian date of filing, been ordinarily resident in Australia for one year. For declarations Actralia or have need only validity and nullity (and most other matrimonial causes), one party of Australian citizen, ordinarily resident in Australia or present in Australia be an means that, whereas for most purposes, when the application is filed or made. This a has been substituted for domicile as residence or mere presence in Australia connection with Australia is required. jurisdictional criterion, for divorce, a stronger Institution of proceedings introduced provision tor o./ The Family Law Amendment Act 1983 (Cth) parties. The Pphcations for divorce or nullity to be made jointly by both Committee 1980 Joint Select ent was based on a recommendation of the the time of its fPanly Law Act.l6 As outlined by the Attorney-General atthe costs to the reduce introduction: T]he making of joint applications would by Australia Gazette S86, effective fromproclamation 1 on 27 May 1976: Commowealth of 9. FLA S June 1976. 10. FLA ss39(1). 11. FLA s 39(2), 46(2A). 44A. 12. Family Law Regulations 1984 (Cth) reg 10A (prescribing only: courts presided over by Australia; Magistrates' magistratinesthewho are also Courts registrarS of the Family Court of Western Petty Sessions of Norfolk 13. Island). Australian Capital Territory;and the Court of ExceptS in Western Australia: see s 40A. 14. FLA 39(1A). 5. Family Court of Australia Practice Direction No 6 of 2003 requires that all divorce applications be fled in the Federal Circuit Court of Australia. 6. Joint Select Committee on the FamilyLaw Act, FamilyLawin Australia, AGPS, Canberra, 1980 3.29  AUSTRALIA FAMILY LAW IN encourage negotiation and conciliation.' would Cor espondinegxiyst,ling parties and cause' in s 4(1) of the definition of'matrimonial FLA addition wasthheamende para (a) of the marriage', in by the parties to a toinclude proceedings to proceedings between the parties to a marriage'. In formulation of both parties are the applicants. Such aCaSC 1983, despite some opposition, Another innovation introduced in 6.8 for divorce to be dealt with in the was s98A application absence of both which allows proceedings representatives. It applies to an parties or their legal institutedby one party to the marriage where: undefended; (a) the proceedings are attained tho (b) there are no childrern of the marriage who have not 18years;l7 (c) the applicant has requested the court to etermine the proceedings in a absence of the parties; and determine the proces. (d) the respondent has not requested the court not to in the absence of the parties. 18 A similar provision applies in the case of joint applications. In this case sh. court may determine the proceedings in the absence of the parties even where satisfied that there are children of the marriage under 18, unless the court is not proper arrangements have been made for the care, welfare and development of those children.19 Where such an application has been made and is not opposed. the judge still the court may, in its discretion, proceed accordingly. In doing so,made out. This has to be satisfied that the ground in s 48 for divorce has been cohabitation includes the requirement in s 48(3) that there is no likelihood of being resumed. A disadvantage of this option for parties is that if they are not of intormation present in court, they cannot give evidence to overcome any lack somethig in their application, thus risking adjournment if they have overlooked of the FLA) and 6.9 Adivorce order is always provisional in the first place (s 55 currently one only takes effect (that is, becomes final) after a certain interval, Act 1959(Cth), month:s 55(1),20 Before the enactment of the Matrimonial Causes order (then called a decree) to aseparate application was always required for the formality, butif take effect. Over time, this came to be regarded as something of a provisionalonly for any reason neither of the parties applied, the decree remained includechildren 17. Under s 98A(3), the definition of 'child of a marriage is extended to treated by the parties as children of their family. This reflectss 55A(S)· 18. Sees 98A(1). called 19. See s 98A(2), (2A). was 20. Prior to 2005, the terminology in these sections was different. Divorce andthat nisi, dissolution of marriage, the provisional divorce order was called a decree decree became absolute after the required passage of time: see 6.90. 330  NULLITY. DIVORCE AND TERMINATION DE OF CHAPTER 6: FACTO adthepartiesremained legally married. Now, in the absence of any challenge provisional order, it automatically becomes final on the RELATIONSHIPS one-month the period, to Unders 55(2)(b), the expiration of the court has a discretionary power to reduce this period are special ifit satisfied that there circumstances ThisÍsisno mereformalit. and where an application for athat justify of itstimeso isdoing' reduction made,. thecourt may haveto be satisfied that the circumstances really are exceptional.?1 Where, however, a divorce order is made final in error, or there are procedural the final order aside:2 see 6.139. the court will set itregularities, decree of Thissystemhas never applied to a nullity. The reason is simple. Avoid marriageisvoidab initio; that is, it has never existed, whether a court says so or marriage has been found to be void, therefore, afinal decree of nullity Oncea immediate effect (the effect is the not. pronounced with same if a declaration as to is invalidityofthe marriage is made). Void and invalid marriages are discussed the furtherat6.141-6.148. Nullity Introduction means of ending &10 As we saw at 1.6ff, divorce was a relative latecomer as a the older action amarriage. Immediately preceding the enactment of the FLA, of nullity applied to both void and voidable marriages (under the Matrimonial had Causes Act 1959 (Cth)): see 1.37. In the case of void marriages, there never of the been a marriage in the eyes of the law. In those circumstances, the order court was declaratory only. Voidable marriages, on the other hand, were prima number facie valid, but liable to be set aside by a court on the basis of one of a of pre-existing conditions vitiating the marriage, such as inability of a party to man. Unlike void osunare the marriage or pregnancy of the wife to another iariages,voidable marriages could be set aside only on the application of a party time. TE Ie lifetime of both, and this had to be done within a certain 6.11 As the initiation of proceedingsto set aside a voidable marriage presupposed a breakdown in the relationship of the parties, there was a strong analogy with is divorce, and divorce. Since the appropriate remedy for breakdown of marriage 12 months, since the time required for divorce proceedings had been reducedtocontext ofthe this former category of included in the FLA, In the FLA, nullity was not marriages void ab initio. therefore, nullity of marriage now refers only to 21. Warren v Warren (1988) 12 Fam LR 245; (1988) FLC {91-923 (notime reduction); Price v Hencken v Dow (time reduction); Underwood (Divorce (2019| Appeal) (2009) 41 Fam LR 614 FamCAFC 22. See In the Marriage 154of Wardale (1990) 14 Fam LR 195; 99 FLR436(1990) FLC 192-151; (time reduction). In the Marriage of Cross (1995) 19 Fam LR 468; 120FLR 57; (1995)FLCY92-628. 23. Matrimonial l Causes Act 1959 (Cth) s 21. 331  AUSTRALIA FAMILY LAW IN in this confirmed in CvC.4 The husband case alleged This was six pregnancies and four children, he for a decree of and his wife had not nullity. This would that, eddespite consummat have marriage and he applied underthe marriage voidable Matrimonial Causes been their a for declaringthe legislationinthe UK, where the parties had and under the relevant the husband's appeal against the Act 1959 gr(Ch ound trial judge'been The Full Court dismissed dismissal ofi his application for a decree s married,o review a judicial registrar's of refusal Full Court (Baker, Kay and Burton |]) confirmed that lack of consummat under Australian or UK law, and that a nulionlity.woulThed not render a marriage void where a marriage is void, 25 decree of nulity is only available under s 51 FLA 6.12 An application for a decree of nullity is a matrimonial cause defined in s 4(1)(a) as a proceeding between the parties to a marriage', and can only be by the parties to the marriage. This includes parties marriage, which for the purposes of Australian law as provided for intoPt VA applied for a of the foreign 'valid'. In Teves II v Marriage Act, is not recognised in Australia as Lindenmayer J concluded that 'if, in accordance with s 88D(2) of the Campomayor Marriage h Act, a marriage solemnised outside Australia is one which is required not be recognized in Australia as valid, then it is "void" within the meaning of that term as usod i s 51of the Family Law Act'.27 6.13 The validity of a marriage may be challenged by people other than the parties themselves by see king a declaration of validity of marriage pursuant to s 113of the Act:* see 6.144ff. This application may be made even after the death of either or both of the parties to the marriage. In fact, cases have commonly been litigated for such purposes as determining succession to property or the legitimacy of descendants long after the death of the parties. 6.14 Thegrounds of nullitywere originally contained in s 51 of the FLA. In1976, they were transferred to the Marriage Act 1961 (Cth)29 (then ss 22 and 23), as Ir was considered more appropriate to cover void marriages in an Act dealing WIl marriage rather than in the FLA, which deals with divorce.30 to Section 22 of the Marriage Act rendered these nullity provisions subjectthe to the common law rules of private international law. However, to give effect Mariage Hague Convention on the Celebration and Recognition of the Validity of 24. (1998) 23 Fam LR 491. 25. (1998) 23 Fam LR 491, 502. 26. (1994] FamCA 57; (1995) FLC Y92-578; (1994) 18 Fam LR 844. 27. (1995) FLC 192-578, 81,734; applied in Bitar vBitar FamCA S0/ 28. See, for example, Allamar vBenny (2012] 29. By the Marriage Amendment Act FamnCAFC 42 at |5J. 1976 (Cth). Houseof 30. See the Explanatory (Cth), Amendment BilI 1976 Representatives, 1976. Memorandum, Marriage A 332  CHAPTER 6: introduced:31see 5.29. The grounas of 23R was the Marriage Act. The effect of nullity are now set new s 23 and 23B of Australia after 7 April 1986 is these amendments under the old s 23, governed by Australian a both t o marry in 1978, ss date, the aut incapacity Whereaspriorto that governed bytheelaws of the capacity of apeople s that hw 23B), (s overseasto marry was marriageable age as provided in s 11. ante-nuptial domicile, domiciledregarded provisions in subss (1)(a)-e), (2) and (3) of s 23B as enacted as eNcept operative identical to s 23, except for The allintentsand purpOses, some insubstantial amendments also include the addition of three to tense. The 1985 amplifying the provisions concerning the relationship by were, in changessubsections further adopted persons, and s 23A exempts marriages by foreign diplomatic amendment to s 23B(1)(d)(iii) by the Civil Law officers,32 Arecent with and or consularAmendment Act 2018 changed the wording of this subparagraph. recommendation by the ALRC Equality, Capacity and andJustice wording follows a Thenew Commonwealth Laws Report to remove references to a person being Disabilityin incapable' of providing consent to marry, consistent with the National mentally Principles identified in their Report.33 The amendment does not Decision-Making solemnised before 7 April 1986; accordingly retrospectively to marriages operate was made to s 23(1)(d)(ii),34 The following discussion of void amendment no further distinguish between the grounds in ss 23 and 23B unless marriages wiill not indicated. Act 1961 (Cth) states: 6.15 Section 23B of the Marriage applies that takes place after the (1) A marriage to which this Division Amendment Act 1985 is void commencement of s 13 of the Marriage where the marriage, lawfully married to (a) either of the parties is, at the time of some other person; (b) the parties are within a prohibited relationship; marriage; (c) by reason of section 48 the mnarriage is not a valid consernt because (4) the consent of either of the parties is not a real () it was obtained by duress or fraud; (ii) that party is mistaken as tothe identity of the other party or as to the nature of the ceremony performed; or By 32. Thisthe Marriage Amendment therefore allows marriagesAct of1985 foreign (Cth).nationals, solemnised by or in the presence might of an Australia when they otherwiautse horised foreign place in consular officer, to take (Cth) Pt IV Div 3. 33, Australian fall LawNfoul Reform Commission, tquality,ActCapacity of s 23B: see the Marriage 1961 and Disabilityin Comnonwealth S4. Laws, Report 124,Memorandum to Explanatory the ofCivil Law and Australia, Justice 2014. Legislation Amendment Bill Commonwealth 2018,(466\. 333  AUSTRALIA FAMILY LAW IN understandithe (iii) that party did not nature and ceremony; or effect.fthe (e) either of the parties is not of and not otherwise. marriageable ave prohibitedI mar iage Marriages of parties within a ancestor or. relationship are (2) (a) between a person and an anda sister descendant (whether of the marriages of the perSON; or (b) between a brother whole blood or blood). the halt- that for the purposes of s 23B(2), The Act further provides have the Same effect asa constituted by adoption shall 23B(3). relationship constituted by birth: s Constituted, remains effective for the Moreover, such a purposes of s 23B(2), even relatio rel nshiati po,ns nathu oi rp na cle relationship ceases to have effect by another adoption: s 23B(5). where the adoption is cancelled or tsuperseded hough the are almost identical to The grounds on which a marriage is void s18 of the Matrimonial Causes Act 1959(Cth). Only two changes of those set outin been made. The first is in the prohibited relationships. Whereas the substance have Causes Act contained a prohibition on a number of Mat relationships, rimoni both al of consanguinity (blood relationship) and of affinity (relationship by as set out more particularly in the Second Schedule to that Act, the prohibition b marriage), been simplifed to those now set out in s 23B(2) of the Marriage Act. The serond change is to the groundsof real consent made to s 2.3B(1) (d)(ii) (not s 23(1)@MGi) see 6.62). Subsisting prior marriage 6.16 Aperson who is already married is not free to mnarry anyone else while that prior marriage subsists: see 5.6. This includes the situation where a person was married to one person in a valid foreign country prior to entering subsequenty into amarriage with someone else under the Marriage Act: see 5.76. As discUsseu in Chapter 5, the Marriage Act 1961 (Cth) defines marriage to mean "the life' uno5 of two people to the exclusion of all others, voluntarily entered into for Thus, under Australian law, only is permitted. To enable marriage monogamous obtain relief (such as divorce parties to certain foreign polygamous marriages to and property),s 6of the FLA gives limited recognition to such marriages. An earlier marriage is only the death of the other spouse, terminated by unders 113 annulment of the marriage (via a decree of nullity or a declaration of a prior of the FLA) or divorce. Therefore, the issue of nullity on the ground divorce marriage is more often than not a matter of evidence (as to marriage, or death). 35. Marriage Act 1961 (Cth) s S(1). 334  NULLITY DIVORCE AND TERMINATION OF DE FACTO CHAPTER6: there has been a divorce, it complete. Afterthis, is only once the both parties are divorce RELATIONSHIPS order takes Where aibscquetdivorce /s free to marriage, as confirmed by s 59 of the FLA. If a person hascontract obtaineda 17 that form through a of eltect but goes normally marriage with another person before order divorcetakes effect (which happens one month after the order is havve no legal a order marriage will effect, even if the divorce order is lhat thatlater subsequently madefinal made), ofMiller..36the marriage was void because the prior marriage Marriage n nthe parties h;ad been dissolved, but nodecree absolute" had ever been arise more ofthe ofone This situation used to frequently than it does now. This is order is now more or less final divorce granted. grantofthe s 63) of the automatic except in becausewhich, under s 55A(formerly the FLA, an adjournment is ordered casesin court determiningthe initial divorce application becausethe arrangements bythe years are not satisfactory. childunder 18 fora nullity has arisen where a person appears to have often, the issue of More 6.18 marriages, but has not divorced the first 'spouse'. Where it is clear intotwo divorce entee are fwo properly Contracted marrlages, and no intervening to be done the second marriage will be void. Where there there is not much of is no conclusive proof of one the marriages in question, a court may still find exists due to the operation of the common law presumptions of that a marriage discussed at 5.84-5.88. validity of marriage, already married may be 619 Aperson who goes through a form of marriage whileMarriage Act 1961 (Cth) guilty of bigamy, an indictable offence unders 94 of the introduction with a maximum penalty of five years' imprisonment. (Prior to the territory criminal of the Marriage Act in 1961, bigamy was a matter for state and legislation: 4.12. A number of jurisdictions have repealed their bigamy offences* while in others they have been retained.)39 The bigamy offence under s 94 is prima lacie committed by both parties. However, the considerations applicable in the imnal law are not the same as those governing the law of marriage and divorce. particular, there are defences available to the criminal charge, such as a bte, lT mistaken, belief that the former spouse was dead, or a reasonable However, belief that the other ceremony was free to marry." party even if such a defence to the bigamous is available in relation to the criminal proceedings, it cannot bring about a valid marriage: see 5.92. 36. (1983) 9 FamtheLR provisional 37. Until 2005, 10; (1983) FLC divorce order was called a decree nisi: see 6.9. Y91-328. 38. Criminal Law Amendmnent (Simple Offences) Act 2004 (WA) s 24; Criminal Code Amendment Act (NSW) S9, Crimes Act 1900 s 92;s 4;Crimes 1989 (Tas) CrimesActAct1958 (Vic) 1971 4. s 64;s Criminal (ACT) Code Act 1899(Qld) Sch 1(Criminal Code (Qld)) s 360; Criminal Law Consolidation Act 1935 (SA)s 78. 40. Mar iage Act 1961 (Cth) s 94(3), (4). 335  be asked whether the bigamy offence 6.20 The question may today? Bennett presents two compelling in Australian society that bigamy should not continue should retalne be support of his conclusion offence within Australian law: first, that the offence lacks a arguments in tobe recOgnised in contemporary Australia; and secondly, that the ways. Bennett proposes compel offence operates lin g that a person rationale in and symbolically problematic already married be dealt with under practical y the eexintesritningg a marriage when they are into notice to offencein s 104 of the Marriage Act (providing a an authorised that contains a false statement or an of six mnonth's imprisonment. Bennett error or is defective) reasons: which attracts acepenal lebrantyt of false By attaching criminality tothe provision information, rather than to marriages, and by bringing the maximum penalty having multiple for false information about conjugal status into line with that for providing providing kinds of false information, the law here would more sensibly negotiate other between respecting multiculturism and ensuring appropriate regulation. This proposal would also move the current law beyond the historical roots of the bigamy offence and would thus reorient the law away from the illiberal aim of presenting a particular model of Christian monogamous marriage. 42 Repeal of the bigamy offence of itself would not change the legal status a marriage entered into by a person who is already married and render the second marriage valid. As Bennett acknowledges, the question whether polygamous marriages should be granted full legal recognition as valid marriages in Australia is 'a distinctly different issue from whether they should be criminalised through the bigamy offence.'43 6.21 The seriousness with which the offence of bigamy is regarded in the context of nullity proceedings based on s 23B(1)(a) is reflected in the approach bythe Family Court in some cases. When a court has determined in FLA proceedings that a marriage is void for bigamy, it is open to the court to refer the papes in the matter to the appropriate authority of the Commonwealth of Australd made, for to consider a prosecution for bigamy. A referral of this nature was knowingly example, in the case of Hiu vLing,4 where the respondent husband married entered into a marriage with a woman in Australia at a time when he was to refer to another woman in Hong Kong. More recently, the court is required appropriate papers to the Chief Justice of the Family Court of Australia for consideration as to such referral.45 Review359. 41. T Bennett, 'Why the Bigamy Offence Should be Repealed' (2019) 41 SydneyLaw. 42. Bennett, note 41 above, 380. 43. Bennett, note 41 above, 361. 44. (2010] FamCA 743. 45. Kefeklv Efstani (2016] FamCAS15. 336 622When death free to d person andwho wantsto be remarry needs to obtain a divorce. This difficultiecin the case married of a miissing spouse. An whois create 1977 case of In the Marriage of Manning.46 In that case, a wife unexpected difficulty an the andto have service application of that dispensed with. The applied in ar0sedivorce separately and apart since 1970, when the husband had leftparties matrimonial a lor home by car at the usual time, apparently in order to go to work. living the hadbeen was found abandoned by the bank of a river car that was on the thatday,his work. later placeof have happened his untowardappeared to - the ignition keys were in wayto on the Nothing there was a quantity of money front seat. An extensive police and nosign of the husband was thecar undertaken, but ever found. None of his There was no evidence that he had of or from him again. was search heard had familyever disappear suddenly or to commit suicide. reasonto kind. it was formerly possible to obtain adivorcee on the any case ofthis the ground In a presumption of.death under s 28(n) of Matrimonial Causes Act 1959 (Cth), of ground was seldom used. The FLA did not re-enact the provision. although this considered that it could have no conceivable advantage since a was No doubt it now be obtained after 12 months' separation as against the seven divorce could yearsrequired for the presumption of death to operate. In Mazing's case,however, LindenmayerJ rejected the application for divorce could not be satisfied that the husband was alive. If he onthe ground that he evidence as there was was dead, there would be no marriage to be dissolved. Such had no tended the other way. Lindenmayer J was therefore of the opinion that he as jurisdiction to grant a divorce. The Full Court on appeal took a different view to the treatment of the issue of the husband's death and allowed the wife's appeal. Ihe judgment of Emery SJ, with whom Maxwell J concurred (Murray Jcame to ue same conclusion in a separate judgment), examined the difference between a presumption of death and a positive finding that a party was dead. n tnis case,only positive evidence of death was relevant to these applications, and there was none. In the absence of that, service could be dispensed with and the Tequirements of s 48 had been met. The fact that the husband could not be found was no bar to the there was no grant of a divorce. In other words, provided alive, just positive proof of the husband was that she had madedeath, the wifeattempts appropriate did not to need to prove serve him with the divorce application. Having done that, the application could proceed. 6.23 Asecondary argument raised by the wife in Manning that acourt in those cdiisrmcuismsedt.a4n7cesSection could make a declaration of death unders 113 of'such as is justified' in proceedings relating to s 4(1)(b) 113 of the FLA empowers the of the court to make definition the of FLA - was declaration matrimonial t6. 41. ((11977)97T)33 Fam Fam LR LR 11,518; |1977] FamCA82. 11,518; FamCA 82. 337 FAMILY LAW IN AUSTRALIA cause in the FLA. Section 4(1)(6) is concerned with declarations marriage, or of a divorce, by decree or otherwise', (At the of term 'dissolution of marriage' was used in s 4(1)(b), rather than tìme of valManidiintyg, tofhea The argument that this term covered dissolution by death in rightly rejected, and it was held that the paragraph as it then 'dthisivorce') stood related context was to termination of a marriage by law and not by death. Even be dissolved by death, that kind of dissolution could not havethough onlcany intended under s 4(1), which is concerned with decrees and the been marria asSSumedge to be Section 113could not, therefore, be applicable. Any doubt is noWoperation laws. of replacement of the term dissolution of marriage' with 'divorce removed by the Prohibited relationships 6.24 These relationships are set out in s 23B(2) of the may be constituted by adoption or successive adoptions: Marriage Act 1961(Cth) and s 23B(3) and (5), This te normally a simple issue of fact. The only marriages of relatives now prohibited ara between direct ancestors and descendants and between brother and sister, whether of(parent-child, the whole- or grandparent-grandchild the half-blood. 6.25 The solemnisation of a marriage ceremony the prohibited relationships is an offence on thebetween persons coming within part of the person performing the ceremony.* The parties, where they have failed to disclose this potential impediment to a valid marriage in the required notice to the authorised celebrant, also thereby commit an offence.49 Under s 23B(3), the prohibitions against marriages between the relatives set out in para )(b) include relationships constituted by, or traced Note the wording in subs (3) referring to a person who 'isor was'through, adoption. an adopted ch Section 23B actually makes this clearer in a new subs (5): (a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective;... prohibited Thus, if the adoption is relationship remains. subsequently annulled or rescinded, the 48. Marriage Act 1961 49. Marriage Act 1961 (Cth) s 100. 338 (Cth) s 100.  CHAPTER 6: NULLITY, DIVORCEAND TERMINATION OF DE FACTO RELATIONSHIPS of the Marriage Act 1961 (Cth) under s 48 Invalidity must comply with certain formalities: see 5.56-5.68. valid, a marriage Tobe of the Marriage Act 1961 (Cth) provides that a marriage that is 626 48(1) accordance with the Section otherwise than in provisions of Div 2 of Pt IV solemnised 40-47)is not a valid marriage. Division 2 deals with (Ss the formalities associated with them. marriages by theAct celebrants's0and of authorised lists a number of exceptions to the invalidation of a However, s 48(2) the 6.27 for failure to comply with prescribed formalities. Subsection (3) marriage from invalidity where the person solemnising it was not saves a marriage authorisedunderthe further Act to do so, if either of the parties at the time of the ceremony authorised to perform the 'putative' marriage (ie, a that that person was believed where at least one of the parties to the marriage believed it to be void marriage case the marriage is valid, provided the 'form and ceremony of valid), $"In such a were such as to show an intention by each party to enter into a the marriage... the other. $2 valid marriage with are aware Where the celebrant is not authorised under the Act, and the parties of that fact, then themarriage is invalid, and the conceptof the putative marriage' will not save it. In In the Marriage of Rewal,$* a Hindu couple went through a form of marriage in the Melbourne Town Hall, celebrated by a Hindu celebrant, using Hindu rites. The parties stated that they knew it was necessary that their mariage be solemnised in a'western style ceremony', in addition to the Hindu ceremony. Ihis was not done and the marriage was accordingly declared to be void. AS tne Marriage Act only requires that the marriage be 'solemnised by or in the presence of an authorised celetbrant', 4it is not necessary for the celebrant Oconduct the ceremony. In W y TSS the parties had knowingly chosen an unorised celebrant for their wedding, relying on that person to ensure ne lty celebrant formalities at the rear were of thedealt with.ensured church The inconspicuous the marriage presence was valid.of an authorsed 6.28 The registration of ministers of religion as marriage celebrants is regulated by detailed provisions set out in ss 25-38 of the Marriage Act. The solemnisation of marriage traditional by celebrant is a device in UK andministers marriage aslaw.anInauthorised of religion Australian this it differs from the laws of some 0verseas countries where only the civil marriage is legally recognised, andthe role U. See s 5\. See S(1) for the the 107 CLR S2. See, defi of nthe ition. discussion 4.13-4.19. case S29) at Marriage Act (Attorney-General(Vic) v (1962) Commonwealth S3. fot (1991) 103exxampl SA. Section 41. FLRe,384;Oltman v Harper (No [2009) FamCA 1360. 2) SS. (1998) 23 Fam LR 175;(1991) FLC 992-225. 146 FLR 323; (1998) FLC 492-808. 339  FAMILY LAW IN AUSTRALIA of the clergy in celebrating religious ceremonies of matter and has no legal effect. marriage is a The combined effect of subss (1), (2) and (3) is that most purely prhvae crucial to the validity of the marriage. Marriages performed fbyorm(oralitiesonty arine mo presence of) an unauthorised person, where neither of the believed that person to be authorised, will be void (as inIn theparties at the the above). Afailure to meet the 'form of ceremony' set out in s 45 Marriage of ne however, this provision is not prescriptive and permits a wide will also Rewal, be fatal:, Furthermore, the courts apply a common law presumption that: variety forms, of resulted in avalid marriage where there is evidence that the a ceremony of marriage: see 5.84-5.88. This presumption is parties went marriage has not save a marriage that is held to be void by reason of s 48 rebuttable23B(thandro1ughXo)wil.M pursuant to s Absence of real consent 6.29 A marriage is void under s 23B(1) of the Marriage Act 1961 (Cth) where: (d) the consent of either of the parties is not areal (i) it was obtained by duress or fraud; consent because: (ii) that party is mistaken as to the identity of the nature of the ceremony performed; or other party or as to the (iii) that party did not understand the nature and effect of the marriage ceremony. The need for true consent for a marriage to be valid has been established tor a long time.* Consent being an essential prerequisite to the formation of a valld marriage, itfollows that if such consent is lacking,the marriage cannot be regatdeu as having any valid foundation. While allthe lack of consent, they are the above heads are merely examples o argued to invalidate a marriage. If anyonly onebases which lack be on occurs, of them So that it can becan of consent said that the party whose consent is in question had never the marriage will be set given a true and voluntary aside as void.57 6.30 Inherent in that proposition is the requirement that the consent wasgiven with a full understanding of the marriage Contract and al that it involves, andthat it be directed to the identity of the person with whom it is entered into. Where there is a mistake as to the to thenature identity the of of the ceremony, the basis for setting asideother or the party a mistake as marriage is the same, namelythat the consent as to the wasnot basis on which the marriage had been entered into S6. See Moss v Moss 57. See Moss v Moss [1897| [1897|PP263 263;at and 267-8 see per J Jacksorn,P. Formation and Annulment ofMarrige Jeune 2nd ed, 340 Butterworths, London, 1969.  NULLITY. DIVORCE AND TERMINATION OF DE FACTO CHAPTER6: ceremony of marriage has taken place RELATIONSHIPS without apparent the Once thereis a presumption of consent that only the strongestreluctance cal. complaint, The.attitudeofthe courts was wel) stated by Collins Jin Cooper vevidence Crane:% orrebut. of sound mind has and gone witnesses who through the ceremony can age person of full of Whena publicly in the presence discovered nothing in her marriage suggest constraint, and has herself complied with of the formality demeanour to name answering questions without and apparent difficulty or signing her confusion, very clear and cogent evidence must be given before the presumption of can be rebutted and the marriage annulled,s9 consent of Each of the statutory grounds relating to consent will now be considered in turn. Duressorfraud Duress debated in some UK cases as to whether the result of duress 631 The question where the ie to render a marriage void or voidable no longer arises in Australia, since the istinction between void and voidable marriage has ceased to exist introduction of the FLA: a marriage is either valid or void. The effect of duress in Australia is to make the marriage void. Apart from that question, however, the principles set out in the UK cases concerning duress have been applied in decisions arising under Australian law. 632 At the end of the nineteenth century, UK law required that the effect of the duress must be such that either: * ue petitioner was so perturbed by terror that her mind was unhinged and what she did not know what she was orthat though she understood doing were sO paralysed that by her words and she was doing her powers of volition acts she merely gave expression to the will of the respondent and not her own, 60 In this case (Cooper v Crane,6 see 6.30),the petitionerfailed to establish her Case. The threat made by the respondent wasthat he would blow his brains out ifshe evidence by which the refused to m marry him. The judgment shows that the court that she satisfied petitioner sought elther of the t0 prove her case failed to Convince the two conditions in the quoted excerpt. S8. |1891P 369. S9, 0. |1891lP 369 at 376. 1891P 369. 61. (1891P 369 at 376-7. 341  FAMILY LAW IN AUSTRALIA encountered in these older cases The factual situations reflect Sebrsociigahtl ,stuathrthtiroeanss was performed, In drama of threats or duress Scott inmade by the man related to the wOman's property (which itv was his which the her with secure) and to her reputation. By threatening and, finally, bankrupttocy shoot she went proce diherng, s, he spreading slander about her chastitynot reduced her to a state where shewas a free threatening agent when ceremony'. «ß This situation is not confined to any particular period, and through the various similar situations found their way into court: see. for over the years vMagya, 6 Leonards v Leonards and Hussein (otherwise Blitz) y Hueesteexample, Keecskemethy 6.33 In Parojcic v Parojcic,7 the petitioner had been under father, who had threatened to send her back to Yugoslavia unlesspressure she from her respondent. In this case, the test in Cooper v Crane was met. married the The decision in Parojcic exemplified an extension of the principle in Cooperv Crane, and shows that the petitioner's will need not enunciatedbe overborne by the action of the respondent, but that the duress necessarily may prOCeed from some other person or persons. In the 1954 case of Hv H,8 the duress wst even more remote than in Parojcic, resulting from the political situation in the petitioner's country of origin, Hungary, from which she wished to escape. The 18-year-old woman was fearful of being sent to a concentration camp by the Russian-controlled Communist government. Theonly way shecould escape was by marrying the respondent, her cousin, and thereby obtaining a French passpot. In reality, it was a marriage of convenience. That fact in itself would not have been sufficient to have the marriage set aside for, whatever their motives, the parties had undoubtedly intended to marry each other. As the judgment of Karminski J shows, however, it was only because the ear ofpetitioner remaining in Hungary was of such a degree as to negate free consent that e entered into the marriage at all. The decree of nullity was granted. 6.34 A decree of nullity was also granted in similar, if not more dramatic, Polish circumstances in Szechter v Szechter 69 where the parties had married in a feared would prison to try to extricate the wife, a political prisoner, who they not survive. Here, Simon Pformulated the test for narrowly thanhis duress more predecessors: 62. (1887) 12 PD 21. 63. (1887) 12 PD 21 at 23 per 64. NSWR 547. Butt J. 65. (1961]VR 334. 66. P 159. 67. 1 All ER 1. 68. P 258. 69. P 286. 342  CHAPTER6: NULLITY DIVORCE AND TERMINATION OF DE FACTO RELATIONSHIPS insufficient to invalidate an otherwise good marriage that a order to escape from a view, in my entered into it in degradation. In order for the disagreeable situation, such I is, party has social impediment of duress to vitiate penuryor marriage, it must, in my judgment, be proved that the will of valid asotherwise an partiesthereto has been overborne by genuine and reasonably held the threat of immediate danger, for which the party is not oneof himself caused life. limb or liberty, so that the constraint destroys the reality of by (ear responsible,to Ithinkthat in the instant case the test is satisfied.70 ordinary wedlock. consentto early 1980s, two cases in Australia involving parental pressure to the duress as stated in Szechter vSzechter. In Sv S,71 635 In relaxation of the test for sawa and married at the age of 16 in a ceremony applicantwas of Egyptian origin marry the Church in Australia. She had done SO under pressure ofthe Coptic Orthodox parents, who had arranged the marriage in accordance with traditional from her ethnic culture of her origin. The marriage was not consummated cUstomin the separated four days after the ceremony. The application for nullity andthe parties had the family's support. traditional concept of dures In aperceptive judgment, Watson J examined the unnecessarily restrictive: and argued that an emphasis on terror or fear was fear or Asense of mental oppression can be generated by causes other than terror. If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated byduress and is not a realconsent. This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression." Watson J quoted Lord Simon in Director of Public Prosecutions (NI) v Lynch,"3 Mere marital coercion and duress were eguated with the proposition this 1S YWll, but Imust do it'. The duress here was not constituted by threds, but by 'external In the human pressure by 'any force overbearing the will. circumstances of the present case of a young girl under pressure from her parents and family, in her particular cultural and religious environment, duress had been amply made out. In holding there was duress, Watson J tried to widen the concept by sayingthat It was not to insist upon terror or fear, but that mental oppression was sufficient tonecessary prevent the applicant from exercising voluntary 'consent': When the ordinary man says he is acting under duress it is usually the element Ot oppression that is uppermost in his mind, not necessarily the form of that 0. OPpression, be it constraint, threat or otherwise. It is the effect of the 11. (1971P 286 at "2. (1980) S5Fam LR297.831; 42 T3. 1980) FLR (1980) FLC {90-820. 94; \ 975\ ACFam653 LRat 831 at 839. 694. 343  AUSTRALIA FAMILY LAW IN that should be the operative factor, oppression on the mind not tlhe such oppression.* torn of Subsequentlyin Teves vCampomayor, Sthe Family Court applied 6.36 situation. The wife applied for a the Philippines.decrBoteeh pinulncllitye from SvSto a ditferentfactual o marriage, which had taken place in 1991 in the her had come to Australia in 1992 and since Filipino citizens,but the witehusband parties wer Philippines,become aN citizen, whilethe had remained in the Australian court jurisdiction to hear the The wife's ordinary residence in Australia gavethe sexual assaults on matter, The wife alleged physical and consequence of which she said she had been 'numerous 'intimidated and in occasions' husband'. She further alleged that she had married the husband as a fear of the fear of him and hisviolence towards her. He was said to have raped her of result her She alleged that she did not invite any members of1her family to the before or since rweddiepeatng,edlandy, that the parties had not cohabited at any time, either the The particular allegation that was said to have induced the marriage marriage. when the husband, who had then repeatedly asked her to marry him,occurtwhiechd she had refused, took her to a hotel where he again asked her to marry bim ami she again refused. They remained in the hotel for some hours, during which time he repeatedly hit her and smashed her head against a post. Finally, 'because of what she described as "the constant violence° she then agreed to marry him'% Lindenmayer Jdiscussed the concept of duress' in this context."" Afte referting toWatson J's judgment in SvS, he continued: From the above, it can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon aparty to vitiate the reality of their consent.'78 As it happens, the wife in this case was not able to satisfy Lindenmayer Jthat the events surrounding her marriage resulted in duress vitiating her consent to marry. Her claims lacked detail, there was no supporting medical evidence and virtually no corroborative evidence of the events she described. Moreover, tnt particular time at which the question of duress must be established is theoccurred time the ceremony. In this case the evidence related mostly to events that had earlier, the last incident being at least 10 days before the wedding. decree 6.37 In Kreet vSampir," the applicant wife was successful in obtaining abecause of nullity on the ground that her consent to the marriage Was not real India. she was under duress at the time of the in ceremony, which took place 74. (1980) 5 Fam LR 831 at 837. 75. (1994) 18 Fam LR 844; (1995) FLC Y92-578. 76. (1994) 18 Fam LR 844 at 854. 77. (1994) 18 Fam LR 844, 78. (1994) 18Fam LR 844 atparticularly 853. at 852-3. 79. (2011) 44 Fam LR 405; 252 FLR 234. 344  NULLITY DIVORCE AND TERMINATION CHAPTER6: OF DE FACTO Thiscaseinvolvedan arranged marriage entered into between the woman and Madeknown in Indiachosen by her parents to be her to her parents that she did not consent to beThe husband. married wife toat the RELATIONSHIPS man heyhadchosenandthat she wanted to marry another man that she hadtimesmet man all nAustralia.The pressure exerted on the wife to go ahead with the ceremony threats by her father to kidnap and rape the manshewishedto marry. While recognising that arrangedmother included and sisters marriages are acultural of the CCronin J stated: practice, practices are sensitive issues but in respect of this Cultural beappliedisthat of Australia. If a application, cultural practice relating to a the law to the overbearing of a mind and will so marriage rise to that it is the cultural practice must give way. Arranged marriages suchnot as a true gives wouldconsent, appear to have been the parents' intent, must not carry with them lack of consent 80 The presence of consent distinguishes an arranged marriage from a forced consent is absent. Forced marriage is also a criminal offence marriage where in Australia: see 6.50. Fraud s28 Alack of real consent may also result from fraud, which has alwavs been held to relate to fraud or deception as to the 'identity of a party', or as to the 'nature of the ceremony' Specifically, in the words of the Privy Council in Swit vKely:82 'no marriage shall be held void merely upon proof that it had been contracted upon false representations and that, but for such contrivances, consent never would have been obtained.' 6.39 There was an attempt to extend the meaning of fraud' in s 23B(1)(d)k) In the 1977 decision in In the Marriage of Deniz, 83 Frederico J held that consent Ghtad been obtained by an immigrant, who wished to marry an Australian Cilzen in order to obtain permission for permanent residence in Australa, nad been obtained by fraud within the meaning of the section. Anullity decree was therefore made. The facts involved a young Lebanese Australian woman who had been induced by a Turkish visitor to marry him. The man pretended to love her, but what he really wanted wasS which he believed he would gain by Marrying her. The permanent residence, marriage was never Consunmated. While consummation is of ho legal signiicance today, it may still be of SOme evidentiary value. The man 80. 8I. (Scottv 2011) Scott 44 Fam(1990) 26 252 LR 405; VLR FLR S88; 234 Swiftv Kelly (1835) 3 Krnapp 257; 12 ER 648; Sullivan at (41). V N2. (1Sullivan3 (1818) 2 Hag 835) Con 238: 161 ER 728; CvC|1942] NZLR 356. 83. KnappLN 257N3;at31293;FLR12 ER (1977) (1977) 7Fam 648 at 661. FLCq90-252. 114; 345 FAMILY LAW IN AUSTRALIA left the woman soon after the marriage and she had a nervous attempted to commit suicide. One reason why the wife sought nullity rather than breakdown divorce was and divorce was serious regarded as a on slur her her in that whyshe also attempted suicide. In holding that this ethnic community,cultural y, fraud, which is was a case of decision sought to justify his by sayingthat iit was a case of consent by a trick, not as to the identity of the other party or as to the beingFreidernduced ico) attemptceremony, to the ven concept of mariage itself. This was an obvious but traditional scope of fraud. to widen as the 6.40 What Frederico J was seeking to do was widen the might induce consent that was not real' consent beyond basis on which fraud in s 23B(1)(d)(ii). He went on to add: fraud inducing mistake The legislature must have intended the words 'or fraud' to have some wider meaning, and it would follow that the Court is bound in the exercise of its jurisdiction under the Family Law Act to give effect to such wider meaning,4 This is a case of consent being induced by trick, not as to the nature of the ceremony, but as to the very concept of the identity or as to In my opinion, if this Court is not to protect the victim of marriage itself... such a deception then it would be failing to give effect to the provisions of... the Family Law Act, and in addition it would be failing to fulfil its obligation under sec 43(a) of the Act to have regard to the need to preserve and protect the institution of marriage,8s In coming to this conclusion, as we have seen, Frederico Jtook the view thal the fraud, while not going to identity or to the nature of the ceremony, Went the very concept of the marriage itself. His Honour argued that the true m of the section must be wider than the traditional doctrine indicated. He reached this conclusion on the groundthat any belief by a party as to identity or as tothe nature of a ceremony, which was induced by fraud as specified in s 23(1)(d)(i), must also be covered by the (wider) provision as to mistake: s 23(1)(a)): Hence, parliament must have intended fraud to COver other matters if that subparagraph were not to be regarded as contemplated superfluous. Any fraud by the section must, however, be one that went to the root of the marriage contract. By analogy with the law of contract, here there had been a totalfailure of consideration,8% further 6.41 An unsuccessful attempt to extended even was made by the have these grounds applicant was an applicant in In the Marriage of Suria,87 The 84. (1977) 31 FLR 114 at 116. 85. (1977) 31 FLR 114 at 117. 86. (1977) 31 FLR 114. 87. (1977) 3 Fam LR 11,541; 29 FLR 308; (1977) FLC q90-305. 346  DIVORCE AND TERMINATION OF DE FACTO RELATIONSHIPS CHAPTER 6: NULLITY, whohad married a Filipino man with whom she had previously Woman There was little doubt that the respondent sought Australian coespondedas a'pern pa>. purpose of gaining entry into Australia as an marriagefor the Australian. intothis enter married to an The applicant gave way to pressure to who was Manila after having met the respondent only immigrant marriage in enteredintothe attemptedto consummate the marriage but failed in this and respondent almostimmediately afterwards. The separated andthe parties twice. attempt, also decided by FredericoJ. His Honour distinguished this case was that there was no fraud here because, whatever This case however, on the ground he had intended this to from Deniz respondent, the evidence showed that motivesof the in form. Moreover, he had made his motivation the fact as well as be a marriagein clear to the applicant so that she could hardly claim to have Australia - entryinto upon by it. beenimposed following Deniz disapproved the extension by FredericoofJ L12 Several decisions reasserted the traditional criteria in this area and of the meaning of fraud orthodoxy was In the Marriage of Otway, $ a reassert the the law. The first case to applicant husband had married a visitor from too, the decision of MCCall J. Here, residence. Four days after the marriage, desired permanent the Philippines who applicant that she had previously met another informed the the respondent wife had wanted to marry. Bull was prepared to live named Bullwhom she Australian marry her, so to gain residence she had married the applicant. With her but not to her that he would inform the immigration Ihe applicant then threatened three months. authorities, So she remained with him for another fraud. complained that his consent had been obtained by gain e applicant the applicant to MCCall J found as fact that the wife had only married through when they wentconsented permanent residence. He did, however, also find that the marriage the other and each Motive or each had intendedto marry to the ceremony, marriage and wanted the marriage to be brought into existence. 'misrepresentations future distinguished between in intentionis irrelevant. McCall J future intentions, from 'fraud collateral matters', such as quality of persons orthe marriage. The centre of his goingtothe essence of intention' to bring about Honour's reasoning Concerns 'consent', on which said: he still is, a In the proved there was, and past once a marriage ceremony had been absence of consent rests upon the presumption of person consent. The onus of proving the What is clearfromthe seeks to have the marriage annulled, there was no real consent past cases is that who show that Accordingly, to the the fraud that is referred to, to inducing a consent. tofuture f\rnatudulentioensntmarriwasmisrepresentations age, does not include fraud as quality of a person orMoss v Moss. tothe relating marriage: annul a never regarded as sufficient to 8, (1986) 11 Fam LR 99; (1986) FLC {91-807. 347 FAMILY LAW IN AUSTRALIA eservations on the part of one or both of tlhe Nor also have mental marriage affected its validity whatever the mmeaning ot traud' may be, it has sO to a parties In my view, extended inEnglish law to incude fraudulent representations or far not been one party has a mental resevation eservations are concerning the future of unknoWn to the other party. Nor, int the marmarriargesiage whereeven where such history of the interpretation of the concept in the past, doI the light of the is suficient statutorv warrant to depart from this established that believe there my view the provisions of the Marriage Act were into statutorv fom the law as it was then doing little more interptrheantatiputon.ting understood, and did not intend to In liberalise or expand the meaning of traud'. At best the separation of mistake and the qualiications attached to mistake in the fraud from clariñed the fact that an innocent as well as fraudulent mistake sub-paragraph could resultonliny the relevant lack of consent to the marriage, 6.43 The next case in which fraud was relied upon as a ground of nulity se. another immigration case, Al Soukmani v El Soukmani, decided in 1989, by Kay J. Amonth after AlSoukmani, the case of Osman v Mourralpl was decided i Nygh J, followed by Najarin vHoulayce,2 also a decision of Nygh J. In the Osmar and Najarin cases, NyghJreiterated the importance of distinguishing betwen fraud and deceit in inducing marriage on the one hand, and mental reservations on the other. 6.44 The facts in Osman were practically the same as those in Deniz." Nygh J referred to that case, but rather than agreeing with Frederico J in Deniz prefered to folow McCall J's decision in Otway. In the course of his judgment in Osman, NyghJ discussed the applicant'sargument that this suggested ground or iraudc only be relied on by an innocent party (ie, one not party to the fraud): The difficulty with this line of argument is three-fold. In the irst paue itthewould have the effect of rendering a marriage in effect voidable, although Family Law Act has abolished that category, for it can only be annulled upon the application [of the] innocent party should that party choosetoapply. Secondly it ignores the well-established principle that a marriage can beannulled on the application of the WIOng doer: Petersen v Petersen (1927) 44 WN(NSW) 96, because there can be no That solution estoppel is clearly dictated not only by as regards marital status. the law but also by policY which Would abhor 'deerned marriages'. Finally, I would have proposition that such serious doubts about the marriages are inherently because of the void, but cannot be annulled 1(UK), culpability of the applicant. In Puttick v Fam Attorney--General 89. (1986) 11 Farm LR 99 at 90. (1989) 13 Fam LR 101-2. 91. (1989) 13 Fam LR 441; 96 FLR 388: (1990) FLC 992-107. 92. (1991) 14 Fam LR 444; 96 FLR 362; (1990) FLC 93. (1977) 7 Fam LN 889: 104 FLR 403: (1991) FLC992-111. N3; 31 FLR 114: q92-24b. (1977) FLC 490-252: 348 see O  CHAPTER6: NULLITY, DIVORCE AND TERMINATION OF DE F