When is a marriage not a marriage?

A surprise trip to the Philippines reveals a few surprises for a husband.

A recent Family Court decision of 11 October 2010 considered the very technical and legal requirements of an legal application to declare a marriage null and void (MONTY & VILLAMONT). There are very few grounds by which the Family Court may declare a marriage void.

Section 23B of the Marriage Act 1961 provides a limited ground. The full text of this section 23B is available here. The ground applicable in this case 23B(1)(a) either of the parties is, at the time of the marriage, lawfully married to some other person.

In the case of MONTY & VILLAMONT, the husband married a lady of Filipino nationality in October 2007. The wife then returned to the Republic of the Philippines.

The husband travelled to the Philippines on a surprise visit in 2008. He discovered that the wife was in a relationship with another man with whom she had two children. The husband then conducted a search with a Republic of Philippines national statistics office which provided a document evidencing the wife’s marriage to another person in May 1995. With the assistance of the Australian Department of Immigration the husband confirmed that the wife was still married to the other person at the time of their marriage in October 2007.

The primary evidence in support of the application were documents from a foreign jurisdiction. Nevertheless the Family Court was satisfied that at the time of the marriage the wife was lawfully married to another person and granted an order of nullity and made a declaration accordingly.

Comment from Mark Streeter Sydney Family Law Lawyer

A further complicating factor in this case was the husband’s inability to serve the Application for nullity upon the wife. The Court rules require that documents filed in Court including an “Initiating Application” must be personally received by the other person.

The Family Law Rules further provide for the means by which service can be “proved” to the satisfaction of the Court. Rule 7.18 of the Family Law Rules 2004 however provides the Court with the power to modify the requirements of the rules relating to service or alternatively to dispense with it altogether. In this case the whereabouts of the wife was unknown.

An old Facebook entry indicated that the wife was potentially living in Canada. The husband did not have the financial resources to conduct searches in Canada and enquiries with the relatives of the wife in the Philippines had indicated that she was no longer living in the Philippines and by the time of the hearing the wife’s Facebook profile had been removed.

Justice O’Reilly was satisfied that the steps taken by the husband to search and serve the wife were exhaustive and ordered that the service of the Initiating Application and affidavit filed in support be dispensed with.

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

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