Quest for Australian Citizenship – Is the marriage void?
Posted: 18th May 2012
Posted in: News
Posted by: Dean Evans, Partner
In a recent decision, the Family Court of Australia at Sydney dismissed an application to grant a decree of nullity in respect of a marriage by an aggrieved husband.
The wife was not an Australian citizen.
The parties had married in Europe in 2000.
The husband returned to Australia and sought a visa for the wife. The wife was finally granted a visa to come to Australia in 2005. During the period between 2000 and 2005 the husband had visited the wife in Europe several times.
The parties lived together in Sydney until 2010. They separated and the husband applied to the Family Court for the marriage to be declared a nullity as the wife was alleged to have said that she only married him to obtain Australian citizenship.
It was held by the Court that:
“In summary, then, I conclude that the term “fraud”, as it appears in S23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage.
The husband’s application is based on his belief that the marriage was a marriage of love and commitment. If that was not so, and I cannot make any finding to determine that issue, he is understandably distressed, but this does not constitute a ground for the relief he seeks. None of the material upon which he relies suggests that there was any fraud or misrepresentation (to use his word) about the wife’s identity or that he was in any way misled about the nature of the ceremony in which he participated.”
The Marriage Act at Section 23B states:
Grounds on which marriages are void
- 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 of the parties is not a real consent because:
i. it was obtained by duress or fraud;
ii. that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
iii. that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
iv. either of the parties is not of marriageable age;
and not otherwise.
The husband’s application was dismissed. The Court held that the term “fraud” in the legislation refers to the identity of a person or the nature of the ceremony, not the motives of a party in entering a marriage.