#7214 - Marriages - Family Law

• There was a definition inserted in the Marriage Act 1961 (Cth) with effect in 2004 : marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life (s 5). This was also found in Hyde v Hyde, US case.

• S 46 for example requires a civil marriage celebrant to inform the parties during the ceremony that marriage according to law is the union of a man and a woman to the exclusion of all others voluntarily entered into life, under the Marriage Act 1961. See also s 43 of the FLA.

• The requirement of voluntariness is said to be fundamental. If it cannot be shown that the consent of one of the parties was not ‘real’ for reasons of fraud, duress, mistake or mental capacity, the marriage will be void under s 23(B)(1) of the Marriage Act 1961 (Cth). Thus specific performance cannot be granted on an agreement to marry.

• ‘Union’ implies relationship. This suggests informal or de-facto relationships. Yet the usual view taken by courts is that a ceremonial union is required (Ross Smith v Ross Smith per Lord Morris). Thus a defacto relationship doesn’t come under Hyde definition. Further the ceremony in Australia must comply with the Marriage Act 1961.

• Corbett v Corbett (1971) UK case:

  • He had been registered as a male at birth. Had a sex change to remove the testicles and then constructed artificial vagina. Then lived as a woman. Then married a man. Then they split up. Husband wanted to find the marriage void because it was not a woman. She argued she should be accepted as a woman. The main argument was, was the marriage valid?

  • Ormrod J found that biology was important and was interested in birth organs and chromosomes. It is curious to use reproduction as a definition. When he says sex, he means gender.

• Attorney General (Cth) v Kevin (full family court Australia in 2003)

  • Kevin was post operative tran-sexual who was registered a female at his birth. Kevin is recognised under State and Cth law as a man for various purposes. Corbett does not represent Australian law. 30 friends came to say he was male and we don’t know how much weight was given to this evidence (but what if it was not unanimous? Would this be decisive? Is some degree of medical intervention required? In Kevin’s case he had hormone treatment and an operation)

  • In deciding who is a male and a woman, the court can apply a contemporary type definition. Does not need to be decided at the time of birth.

  • ‘brain sex’ refers to Kevin’s perception of himself as a bloke.

• Marriage Act 1961 (we do not need a copy of). S 23B(1) sets out what makes a marriage void. A marriage to which this division relates is void if either of the parties is at the time of the marriage, lawfully married to someone else, the parties are in a prohibited relationship, by reason of s 48 the marriage is not valid, the consent of either parties is not real because of duress/fraud/mistaken identity/mentally incapable or parties are not of marriageable age.

• There is no such thing as a voidable marriage now. This was an intermediate possibility that no longer exists – that meant it is valid until one party challenges it – this was maybe for the law of succession being challenged by a third party. It is now valid or void.

• If it is void the marriage just does not get off the ground. It has a fundamental flaw.

• S 71 of the FLA says that for part 8 of the FLA, the word ‘marriage’ includes a void marriage. So for spousal maintenance, property and maintenance agreements.

• Marriage Act: S 23B(1):

MARRIAGE ACT 1961 - SECT 23B

Grounds on which marriages are void

1. A marriage to which this Division applies that takes place after the commencement of section13 of the Marriage Amendment Act 1985 is void where:

1. either of the parties is, at the time of the marriage, lawfully married to some other person;

2. the parties are within a prohibited relationship;

3. by reason of section48 the marriage is not a valid marriage;

4. the consent of either of the parties is not a real consent because:

   1. it was obtained by duress or fraud;

   2. that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   3. that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

5. either of the parties is not of marriageable age;

and not otherwise.

Duress:

• Williams v Williams: She was under 16 and gets pregnant and parents force them to get married. Husband claims there was duress because he was forced to marry her to prevent criminal charges being laid. But the Supreme Court of Victoria found that there must be a high level of pressure. There was not sufficient duress. The threat of criminal prosecution is not sufficient because he had a clear choice. The judge says that the evidence of this case makes him doubt the bona fide’s of the husband because of the elapsing of time- there was time that elapsed between the first threat to prosecute and the ceremony itself – 2 months. Then there was a lapse of time between the ceremony and the petition. He waited for the statute of limitations to pass – he had got some legal advice obviously as there was 12 months statute of limitations in regards to this offence.

  • There is such a thing as continuing duress that could have been argued in the alternative.

  • If a marriage is void, then the marriage is void from the beginning. This is an old case.

• In The marriage of S [1980] : She is forced into an arranged marriage. The woman was very young and only just turned 16 at the time of the ceremony. (If we had the same facts today women could not get married at 16 unless given permission under s 12 of the Marriage Act). FC Australia, Watson J: found that there was no hint of violence or threats but that there was emotion and psychological pressure. The parents agreed with the daughter in the end because they realised that they pressured her. They wanted the marriage to be void because it was unacceptable to have the status of a divorced woman. Judge said: ‘she was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience. In Szechter (Orse Karsov) v Szechter: for there to be duress it must be that one of the parties has been overborne by genuine and reasonably held fear caused by a threat of immediate danger. Yet these English cases were distinguished as the judge found it depends on the circumstances and you do not always need physical coercion to break someone’s will. In some cases emotional pressure may have the same effect on a person’s mind as physical pressure would.

• Khwaja v Sinha [2011] FC Australia, Stevenson J: different to In the Marriage of S and the facts were disputed but the Marriage of S was upheld. Yet the judge was not satisfied, on the evidence that there was duress. This case is also relevant to fraud (we will come back).

• C Vallance-Webb page 75: There are many forced pressure marriages. You read if you need more detail.

• FRAUD: In the Marriage of Deniz [1977] : she said she was tricked to marry the man. It turned out that he wanted to marry her so he could get permanent residence. They both willingly went through the ceremony. She thought he loved her and was 17, a Lebanese family. After the wedding he told her why he married her and then said he didn’t want anything else to do with her. She tried to commit suicide and had a nervous breakdown. The she applied to have the marriage declared void. She said she would rather die than be divorced. If the marriage is void, it never got off the ground legally speaking. FL Court, Frederico J: the man, intent in staying in Australia, had no intention at the time of fulfilling the obligations of marriage. The fraud relied on must go to the root of the marriage conduct. The respondent has not had the slightest intention of fulfilling the objects of marriage. Marriage void.

  • Yet all the other judges don’t seem to like the approach in this case and steered away from it. For example, C v C [1942] NZ Case she thought she was marrying Michael Miller, a famous boxer, but was not and he stole money off her. She said she was deceived about his intentions and name and he was a big conman. The judge said no. All you need to know in a case like this is that the parties were voluntarily going through the ceremony with each other. The law doesn’t look into the parties’ heads to see what was driving them. If you take this approach you would wonder when could you ever have a case of fraud? Maybe you marry the wrong twin.

  • The judge in Hosking said that people get married for different motives, to achieve some purpose like money or social security or employer accommodation etc. These departments can decide for themselves of who is acting in good faith. But distinguish this from marriage in good faith. The law is not interested in the motives but only if they are voluntarily going through the marriage. Should a court ever be entitled to say that parties’ reasons are so improper as to declare the marriage void? No.

  • R v Cahill : Waiters come to Australia from HK. They wanted to offer women money to marry them. No intention to stay together after the ceremony. Someone got wind of the scheme and reported them to the authorities. At this time in 1978, there were not any laws to stop what they were doing. It went to the NSW CA and all the people were acquitted because at this time they had not done anything they were not legally entitled to do. What would be the status...