1: Oliver (Deceased) & Oliver [2014] FamCA 57 | February 12, 2014

Court or Tribunal: Family Court of Australia
Catchwords: Marriage, Mental Incapacity, Nullity
Judges:  Foster J


Background: This was an unlikely marriage, according to the Judge. The groom was 78, about to move into a nursing home and suffering from dementia. The bride was his 49-year-old former cleaner. Weeks earlier, she had accompanied her fiance to his solicitor to change his will to leave her everything. The details of this improbable union were recounted by Justice Garry Foster, who has been asked to declare the marriage void because of the mental incapacity of the husband. 
 
  [Legal Issue]Taking into account the likely ''financial motivations'' of the woman, the financial disparity between the pair and his cognitive incapacity and dementia, Justice Foster concluded the man did not have the capacity to understand the nature and effect of his marriage to the woman. Adding to the tiny number of decisions in Australia, Justice Foster declared the Olivers' marriage void in accordance with section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).   [Court Orders]That the marriage of Mr Oliver and Ms Oliver solemnised on ... April 2011 be declared as void in accordance with section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).     


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2: Wright & Wright [2012] FamCA 216 | March 26, 2012

Court or Tribunal: Family Court of Australia
Catchwords: Annulment, Marriage, Nullity
Judges:  Watts J


Background: The parties were married by way of a ceremony that took place at the registry office in London in January 2004. Subsequently the parties entered into a second ceremony of marriage in New South Wales at Town A in August 2004. On 2 June 2011, the parties jointly made an application to the Federal Magistrates Court for dissolution of both the marriages. On 3 August 2011 a registrar made a divorce order in respect of the marriage solemnised in London in April 2004.  The registrar was unable to make any orders in respect of the Australian marriage and concluded that you can only be divorced once and also concluded that the registrar had no power to make a declaration of invalidity in respect of the second ceremony. 
 
  [Legal Issue]The parties had married in London in January 2004, before subsequently marrying in New South Wales, asserting they had never been married before. The parties were granted a divorce order in the Federal Magistrates Court in respect of the marriage ceremony that was solemnised in London. Given that the parties were legally married when they involved themselves in the Australian ceremony, the Court was satisfied that that ceremony had no legal effect and a declaration of nullity was granted. Where a person is already married, and enters a second purported marriage without the first marriage having been dissolved (by divorce or death of a party, for instance), the second marriage will be void.   [Court Orders]That part of the definition of matrimonial cause refers to proceedings for a declaration as to the validity of a marriage. Given that the parties were legally married at the time that they involved themselves in the ceremony at Town A in August 2004, I am satisfied that that ceremony had no effect and any marriage that was purported to have taken place on that day was invalid.     


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3: In the Marriage Of: Ronald George Hosking Husband And: Jie Hu Hosking Wife [1994] FamCA 87 | July 29, 1994

Court or Tribunal: Family Court of Australia
Catchwords: Annulment, Nullity
Judges:  Lindenmayer J


Background: In this case involving the husband who alleged nullity of marriage, he claimed he was the victim of marriage fraud after marrying a Chinese woman who really only wanted a residency visa. The man claimed that he believed the woman would live with him as his wife, but the marriage was never consummated and she left him soon after getting her visa.  
 
  [Legal Issue]This case seemed to highlight the Court's narrow definition of the term "fraud". The application itself was dismissed, as the judge found that the bride had not committed fraud under the law in this case. The Judge stated that the neither the husband's application nor his affidavit alleged that there was any fraud as to the identity of the other party or of the ceremony itself.    [Court Orders]1. That the husband's application for a Decree of Nullity be dismissed; 2. That the husband serve the wife with a copy of these orders and my reasons for judgment; 3. That there be no order as to costs.      


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