In the Marriage Of: Ronald George Hosking Husband And: Jie Hu Hosking Wife [1994] FamCA 87

Select to highlight: Tags | Expert |

The parties married in November 1993 and separated in December 1993. The parties met in June 1993 and had cohabited for several brief periods before and after the ceremony. Neither the marriage nor the relationship was consummated. The wife did not appear at the hearing of the application nor did she file any material.

The basis of the husband’s application was that the wife fraudulently procured his consent by leading him to believe that they would reside together as husband and wife after the ceremony. He also alleged that the wife, who was not a citizen, had married him merely to obtain an extended period of residency in Australia.

Held, dismissing the application:

1. The term “fraud” as it appears in s23B(1)(d)(i) of the Marriage Act 1961, has a limited scope and is concerned with fraud as to the identity of the other party or the nature of the ceremony, and not as to the motives of a party in entering into the marriage: Moss v Moss (1897) P 263; In the Marriage of Osman and Mourrali (1989) 13 FamLR 444; In the Marriage of Najjarin and Houlayce (1991) 14 FamLR 889; In the Marriage of Soukmani (1989) 13 FamLR 441; In the Marriage of Otway (1986) 11 FamLR 99; Lal and Watkin (Warnick J, unreported, 31.5.94); Deniz and Deniz (1977) FLC 90-252, distinguished; ss 23B and 46(1), Marriage Act and s43(a), Family Law Act considered.

2. In hearing an application for a decree of nullity the court is concerned with the reality of the parties’ consent at the marriage ceremony and so with the acquisition of marital status. It is not concerned with how that status may be used later in the context of other areas of the law (eg. immigration) or generally: United States v Rubenstein 151 F.2d 915 (1945), considered; R v Cahill (1978) 2 NSWLR 453; Lal and Watkin (supra).

3. Neither the husband’s application, nor any of the material in his affidavit was directed at the question of whether there was fraud as to the identity of the other party or the ceremony itself. Indeed, the husband’s material said very little about the actual marriage ceremony or the circumstances of it.

LINDENMAYER J This is an application by RONALD GEORGE HOSKING (“the husband”) for a decree of nullity, in relation to his marriage to JIE HU HOSKING (“the wife”) on 24 November, 1993 at Broadbeach, Queensland, on the ground that his consent to that marriage was not real, by reason of fraud.

2. The husband was born on 11 December, 1947 and is now 46 years old. The wife was born on 12 January, 1962 and so is now 32 years old. There are no children of the marriage, but the wife has a young daughter, who, the husband deposes, is 5 years old. The husband is a pensioner and the wife, a student at the time of the marriage, is unemployed.

3. The husband is an Australian citizen and resident, having been born in this country and resided here his whole life. The wife was born in Beijing, China and is not an Australian citizen. Her precise immigration status is unclear, but she was already living in Sydney at the time she first communicated with the husband in July, 1993.

4. The husband filed his application on 28 March, 1994. According to an Affidavit of a RONALD HENRY JACKSON, filed 14 June, 1994, the wife was served with a sealed copy of this application. An Acknowledgment of Service, signed by the wife is annexed to his affidavit. By an Affidavit of Proof of Signature, also filed 14 June, 1994, the husband deposed that the signature on the Acknowledgment of Service is that of the wife. The husband also filed, on 14 June, 1994, a copy of his Certificate of Marriage and another, principal affidavit of himself.

5. The matter was heard by me on 15 June, 1994. There was no appearance by the wife and she has filed no material in these proceedings. Mr Whiteford, of counsel, appeared for the husband.

2. THE LEGISLATION

6. Subsection 39(4) of the Family Law Act 1975 (“the principal Act”) states that, subject to the requirements of that subsection, “Proceedings of a kind referred to in the definition of ‘matrimonial cause’ in s.4(1), other than proceedings for a decree of dissolution of marriage or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act …”, if certain requirements are met. Subparagraph (a)(ii) of the definition of “matrimonial cause” in s.4(1) of the principal Act includes proceedings by or between parties to a marriage for a decree of nullity of a marriage. Therefore, the parties must meet the requirements of s.39(4). It is sufficient that one of the parties is an Australian citizen, ordinarily resident here or present here on the relevant date (s.39(4A); the date the application was filed). I am satisfied that the husband has fulfilled all three requirements.

7. Under s.51 of the principal Act, an application for the grant of a decree of nullity of marriage is based upon the ground that the marriage is “void”. As to what constitutes a “void” marriage for these purposes, reference must be had to the Marriage Act 1961 (“the Marriage Act“). As this marriage was solemnized in Australia (sees.23A(1)(a)) and after 7 April, 1986, the date of the commencement of the 1985 Act amending the Marriage Act(see s.23B(1)), the validity of this marriage falls to be determined according to s.23B of the Marriage Act. In particular, subparagraph 23B(1)(d) provides:

“23 (1) A marriage to which this Division applies that takes place

after the commencement of s13 of the Marriage Amendment Act 1985 is

void where:

…

(d) the consent of the 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…”

It is clear from his application that the husband relies upon s.23B(1)(d)(i), and in particular, the ground of fraud.

3. THE HUSBAND’S APPLICATION

8. The facts upon which the husband seeks to rely in his application are pleaded by him as follows:

“(1) At the time of the purported ceremony of marriage the applicant

held the belief that the respondent was entering into a marriage

with the applicant with the intention of the parties properly

residing together and being husband and wife.

(2) The respondent fraudulently obtained the applicant’s consent to

marriage on the basis that the respondent and the applicant reside

or act as husband and wife.

(3) The marriage was never consummated.

(4) The applicant and respondent did not at any stage reside as

husband and wife wherein the respondent resided under the same

roof, but separately from the applicant from the date of the

marriage until approximately 28th November, 1993 when the

respondent left the applicant’s premises to take up residence with

a de facto partner.

(5) The respondent married the applicant in order to remain in

Australia, on the basis that the respondent’s visa for residency

in Australia is due to expire in the near future and at the first

opportunity available the respondent left the applicant and

shortly thereafter took up in a de facto relationship. The

respondent only entered into the purported ceremony of marriage

in an attempt to obtain permanent residency in Australia.

(6) If the applicant had been aware of the respondent’s intentions

to resume a de facto relationship and to marry the applicant for

the purposes of remaining in Australia and not for the purposes

of entering into a valid and full marriage with the applicant,

the applicant would not have proceeded with the purported ceremony

of marriage to the respondent”.

9. The thrust of the application is, therefore, that the wife led the husband to believe that, after the marriage ceremony, the couple would live together in a marital relationship, as that is conventionally understood, whereas in reality she never had such an intention and only wanted to be married for immigration purposes.

4. THE EVIDENCE OF THE HUSBAND

10. By way of background it is also helpful to outline the evidence of the husband in this case, contained in his principal affidavit, filed 14 June, 1994. The husband’s version of events is, briefly stated, as follows.

11. The parties first met, through a mutual friend, on 21 June, 1993, when they conversed on the telephone. Over the next month there were other telephone conversations and letters between them. At this stage the wife was living in Sydney and the husband on the Gold Coast. On 23 July, 1993 the husband travelled to New South Wales. He stayed at the wife’s premises that night, but deposes that there was no physical contact between them. He returned to the Gold Coast the following day.

12. Further, irregular communication continued between the parties until 16 October, 1993. It appears that through these discussions the parties agreed that the wife and her daughter would come to live with the husband at his home on the Gold Coast; the wife being unhappy and in financial difficulty in Sydney. The wife and her daughter arrived there on 18 October, 1993.

13. The husband deposes that immediately upon her arrival, the wife insisted he submit to a medical examination for the purpose of the husband obtaining life insurance and that she be the beneficiary of any such policy.

14. On 22 October, 1993, the parties attended the Salvation Army at Southport to notify them of their intention to marry so that the ceremony might be performed by a celebrant of that organisation. The husband says that the wife did not want to wait 30 days for the marriage, but that the Salvation Army celebrant was not willing to agree to perform the ceremony within that time.

15. The husband deposes that, on the following day (23 October, 1993) “the Respondent requested that I complete a new Will with her and thereafter the respondent retained possession of the new Wills”. The wife was the executrix and sole beneficiary of the husband’s new Will.

16. The wife then left the husband, for a time, on 24 October, 1994. In the period prior to that date, the husband deposes that he and the wife slept separately. He further says that between 27 October and 21 November, 1993 there was continual communication by telephone and letter, during which it was agreed that the wedding was to take place on 24 November, 1993 on the Gold Coast and that the husband was to make any necessary arrangements.

17. The wife returned to the Gold Coast on 21 November, 1993, with her daughter, bringing with her what the husband says were all of her personal belongings. The wife, again, stayed in a spare room in his home, with her daughter.

18. The parties were married on 24 November, 1993, as is also disclosed by the Marriage Certificate. The wife then left on 28 November, 1993, taking with her all her possessions and telling the respondent that she was going for a week to Sydney and possibly also to Melbourne.

19. Between 29 November and 5 December, 1993, the husband made numerous telephone calls to family and friends of the wife in Sydney in an attempt to locate her. The husband deposes to being warned by one of the wife’s friends that the wife and another man were planning, so it appears, to kill the husband and make a claim upon life insurance that had been taken out in respect of him. Mr Whiteford, for the husband, did not seek to rely on this facet of the case to any great extent.

20. The husband then describes visits which he made to Sydney and Ballina. What occurred during those visits is somewhat unclear. In summary they involved, so the husband deposes: the taking by the wife of an overdose of sleeping tablets in Sydney and the calling of an ambulance by the husband; an offer by the wife to return to the Gold Coast if the husband paid her $10,000; a car accident involving the wife in Ballina, NSW; and the return of the wife and her daughter to the Gold Coast, where the wife again stayed in a spare room with her daughter. Indeed, the husband’s evidence is that the marriage was never consummated.

21. The wife stayed with the husband from 11 December until 13 December, 1993, when she left for the final time. During that time, the husband says that the wife had spent considerable time with another man, with whom, the husband was informed by yet another person, the wife was living in a de facto relationship. On 13 December, following an argument between the husband and the wife in relation to the use of the husband’s STD telephone service, Police were called. The husband says that he made a wilful damage complaint to Police against the wife.

22. Since this last date, the husband has had contact with immigration officials in relation to the wife and says that she has made abusive telephone calls to him. There is no evidence before me about the actual residency status of the wife.

23. It appears from the husband’s main affidavit and his Application that a Domestic Violence Protection Order was made at the Southport Magistrates Court in relation to the parties, and, from the Application it appears that it applies to both parties. There is no evidence as to when this order was made nor is the order itself before me.

5. THE LAW OF FRAUD IN A NULLITY CONTEXT

24. It is necessary to first determine what meaning “fraud” has in the context of s.23B(1)(d)(i). In his decision, in In the Marriage of Osman and Mourrali (1989) 13 FamLR 444, 448, Nygh, J quoted the following, leading passage from the English decision of Sir Francis Jeune P in Moss v Moss (1897) P 263, 268-9:

“But when in English law fraud is spoken of as a ground for avoiding

a marriage, this does not include such fraud as induces consent, but

is limited to such fraud as procures the appearance without the

reality of consent”.

That earlier case concerned a suit for nullity of marriage founded upon the respondent’s failure to tell the petitioner that she was pregnant. The petition was dismissed. In the course of doing so the learned President also observed:

“But when there is consent, no fraud inducing that consent is

material. Lord Stowell has at least three times expressed this in

the most emphatic language. In Wakefield v Mackay 1 Phillim. 134,

n., 137 that learned judge said: ‘Error about the family or fortune

of the individual though procured by disingenuous representations

does not at all affect the validity of the marriage’; in Ewing v

Wheatley [1814] EngR 357; 2 Hagg. Cons. 175, 183: ‘It is perfectly established that

no disparity of fortune or mistake as to the qualities of the

person will impeach the vinculum of marriage’; and in Sullivan v

Sullivan [1818] EngR 533; 2 Hagg. Cons. 238, 248: “The strongest case you could

establish of the most deliberate plot, leading to a marriage the

most unseemly in all disproportions of rank, of fortune, of habits

of life, and even of age itself, would not enable this court to

release him from chains which, though forged by others, he had

riveted on himself. If he is capable of consent and has consented,

the law does not ask how the consent was induced” (269-270).

This view of fraud as a ground for obtaining a decree of nullity was seen by the court in Moss to be “long and uniformly asserted” and, to his Lordship, it was “conclusive” (at 271).

25. In In the Marriage of Osman and Mourrali (supra), this view was endorsed and at 448, Nygh, J said this:

“That passage (the first extract from Moss v Moss (supra), above)

has generally been interpreted as meaning that the marriage is void

because the purported consent was given to something other than a

marriage, or to a marriage with someone other than the person

physically standing at the altar. But if a person wishes to go

through a ceremony of marriage with a person whose identity he or

she is aware of, then it matters not that that consent is induced

by promises of eternal happiness, luxurious living or even the

promise to live together forever after. For, if it were a ground

that a marriage could be annulled on the ground that a party was

defrauded as to the intention to cohabit, where should the court

draw the line? Love and affection are also regarded as essential

to a marriage at least in the twentieth century: would lack of love

base an application for annulment? Again, the production of

offspring is a traditional concern of marriage, would a deception

as to the intention to bear them or procreate them found an

application? Where does one draw the line between attributes such

as wealth, virtue, beauty or potency on the one hand and the

fundamentals of marriage such as cohabitation, mutual love and

support and the procreation of children of the parties?”

The same view of the law was expressed in the later decision of Nygh, J in In the Marriage of Najjarin and Houlayce (1991) 14 FamLR 889, 891 and more recently by Warnick, J in Lal and Watkin (unreported, 31 May 1994), 2-3. The earlier decisions, by Kay, J in In the Marriage of Soukmani (1989) 13 FamLR 441, 442-443 and by McCall, J In the Marriage of Otway (1986) 11 FamLR 99, in the Family Court of Western Australia, are also in conformity with the position outlined above. In the latter case at, for example, 101, his Honour said:

“In the past once a marriage ceremony had been proved there was,

and still is, a presumption of consent. The onus of proving the

absence of consent rests upon the person who seeks to have the

marriage annulled. What is clear from the past cases is that the

fraud that is referred to, to show that there was no real consent

to the marriage, does not include fraud inducing a consent.

Accordingly, fraudulent misrepresentations relating to the quality

of a person or as to future intentions was (sic) never regarded as

sufficient to annul a marriage: Moss v Moss (1897) P 263″.

In that case, his Honour also made reference to Halsbury’s Laws of England (3d), Vol 19, p.775, which he cites in support of the views expressed above.

26. I was referred, by counsel for the husband, to a series of articles: in particular, one by Brian Davis (Senior Lecturer in Law, University of Adelaide), “Fraud and Annulment of Marriage” (1988) 2 AJFL 138; a reply to this by Owen Jessup (Senior Lecturer in Law, University of New South Wales), “Fraud and Nullity of Marriage in Australia (1989) 3 AJFL 93; and a reply to this by Mr Davis, “Logic Fraud and Sham Marriages” (1989) 3 AJFL 191.

27. In relation to the cases cited by the learned President in Moss v Moss (supra), Davis, in his first article, attacks much of what was said in those early decisions as obiter, and therefore not representative of the true legal position. Nevertheless, even if I were to accept this observation, it would still be obiter from influential sources. Moreover, Mr Davis’ contention as to what the actual legal position then was, while interesting, is, with respect, less than compelling. In any event, the case now before me falls to be decided in the 1990’s and not the 1890’s and, as is clear from the cases I have cited above, the view taken in Moss v Moss (supra) has become widely accepted.

28. Standing against these more recent cases is the earlier decision of Frederico, J in Deniz and Deniz (1977) FLC 90-252, upon which counsel for the applicant placed much reliance. That case, which Mr Whiteford submitted was “logically indistinguishable” from the present one, involved, according to the headnote, a marriage between an Australian woman and a Turkish citizen, which the latter entered into for the purpose of securing permanent residency in this country. In would appear that he had seduced the wife in that case and had no use for the marriage beyond his immigration goals. The wife sought and was granted an annulment. The Court adopted a broader interpretation of the word “fraud” in the relevant section of the Marriage Act, which is not materially different from that applicable in this case. At 76,355 his Honour said:

“This is a case of consent being induced by trick, not as to

identity or as to the nature of the ceremony, but as to the very

concept of the marriage itself”.

His Honour stated further that:

“The respondent has not had the slightest intention of fulfilling

in any respect the obligations of marriage. He has used the

unfortunate applicant as a tool of his own convenience. His

conduct amounts to a total rejection of the institution of marriage

and what it stands for. He clearly deceived the applicant into

marriage for his own personal motives and with the intention of

summarily rejecting her immediately after the ceremony”.

Yet his Honour did recognise the more traditional view in that case. He said, at 76,354:

“As to fraud, this has been interpreted over the years so as to

confine its application to fraud involving identity of party or

the nature of the ceremony”.

His Honour then cited Scott v Scott [1901] VicLawRp 93; (1900) 26 VLR 588 per Hood, J, adopting the Privy Council in Swift v Kelly (1835) 3 Knapp 257, 293, in support of the traditional position. (The latter case has also been attacked by Davis in his first article).

29. There appear to have been two bases for his Honour’s decision in Deniz and Deniz (supra). The first is that the wording of s.23(1)(d)(i), which is identical to s.23B(1)(d)(i), indicated a new and expanded role for the term “fraud”. His Honour took the view that s.23(1)(d)(ii), which specifically provides, as a ground for a decree of nullity, mistake as to the identity of the other party or the nature of the ceremony, would include a fraudulently induced mistake as to those matters. Therefore, he reasoned, the presence of the term “fraud” in (1)(d)(i) (in ss.23 or 23B) would be “merely surplusage”, had not the legislature intended it to play a more expansive role than it did at common law. His Honour also acknowledged, however, that the legislation had had this structure since 1959, when s.18(d)(i) of the Matrimonial Causes Act 1959 was the governing provision.

30. No reference was made by his Honour to any extrinsic material supporting his view, nor did he rely on any other feature of that provision or of the legislation generally. In particular, there is no definition of “fraud” in the Marriage Act. In short, there appears to be nothing to suggest that a departure from the traditional view, as identified by his Honour, was intended by the legislature in enacting either this section or its 1959 predecessor. This argument was rejected by Nygh, J in Osman (supra), and for the same reasons I too reject it.

31. Indeed, as a matter of statutory interpretation, it may be appropriate to take note of the presence ins.23B(1)(d)(i) (and its counterpart in s.23), of the term “duress”, which appears immediately before “fraud” in that provision, viz.:

“…

(d) the consent of either of the parties is not a real consent

because:

(i) it was obtained by duress or fraud” (the emphasis is mine).

In the case of duress, the relevant time at which a person must be under the required degree of oppression is at the ceremony itself. That is, the question is not whether a person is under duress when he or she accepts a proposal of marriage, however menacingly put, but when the ceremony itself is performed. As much is clear from the discussion of duress in the cases of Cooper (falsely called Crane) v Crane (1891) P 369, 23-24; Kecskemethy (falsely called Maygar) v Kecskemethy (1961) 2 FLR 437, 448; Williams v Williams [1966] VicRp 10;(1966) VR 60, 63.

32. Thus, there exists, in the context of duress, a clear need for proximity with the ceremony; the actual point at which two people become married. The fear arising from duress must be acting upon the relevant party at that point. By analogy, and also by virtue of the noscitur a sociis principle and because, in my opinion, the two terms are ejusdem generis, it is difficult to see why the term “fraud” should import considerations beyond the scope of the rest of s.23(1)(d) or s.23B(1)(d), as the case may be. To take such a broad view would allow inducements and misrepresentations, which, while morally shameful, are merely precursors to the actual marriage of the parties, to render the marriage void. The giving of the consent to a marriage at the ceremony, rather, is the act with which a court must concern itself when questions of the essential validity of a marriage are raised. The cases with respect to duress, which I have set out above, establish that it is the actual choice, not merely the reasons for or inducements to that choice, that is the concern of the court. In this way, the traditional interpretation of “duress” and also of “fraud” in this context is much more in keeping with the drafting of the section than, in my respectful opinion, the interpretation adopted by his Honour in Deniz (supra).

33. In this context, reference might also be had to p.152 of the first article by Davis (supra), where the learned author observes that the ground of mental incapacity embodied in s.23(1)(d)(iii) (and s.23B(1)(d)(iii)) concerns, according to that provision, a failure to understand the “nature and effect” (his emphasis) of the marriage ceremony He then reasons that (at 152):

“If the absence of capacity to understand the normal

responsibilities of marriage renders the ceremony null and void,

the absence of consent to undertake those responsibilities ought

logically to produce the same result”.

This is an ingenious argument, but it is not one with which I can agree. Section 23B(1)(d)(iii) concerns mental incapacity, and the failure to understand the “nature and effect” of one’s actions is logically bound up in such a concept. The considerations pertaining to that concept do not translate to an inquiry about fraud. Moreover, the consent with which we are dealing here is not that of the fraudulent party in undertaking obligations which he or she had no intention of fulfilling, but, rather, the consent of the allegedly defrauded party, and whether that consent was real.

34. The second basis relied upon by Frederico, J for his decision in Deniz (supra), was the need to act in conformity with s.43(a) of the principal Act. That subsection provides:

“43 The Family Court shall, in the exercise of its jurisdiction

under this Act, … have regard to –

(a) the need to preserve and protect the institution of marriage as

the union of a man and a woman to the exclusion of all others

voluntarily entered into for life”.

His Honour took the view, at 76,355, that he was fulfilling his obligation under that section by issuing a decree of nullity in respect of a marriage that he found to be repugnant to the concept of marriage enshrined in s.43(a). Indeed, this provision was relied upon by Mr Whiteford before me.

35. Clearly, this provision is not substantive: it is directory. It is not a definition of marriage for the purpose of the principal Act, or any other Act, and, in fact, there is no such definition. It dictates the general approach which the court ought to adopt in exercising its jurisdiction under the Act. In this way it may, in appropriate cases, commend one interpretation of the law over another. It cannot, however, override clear substantive law. In reported cases where the subsection has been employed by this Court, it has been interpreted and applied in that way: see, for example In the Marriage of Lace (1981) 7 FamLR 631, 632-633.

36. In his first article, Davis (supra), at p.145 also makes reference, in this context, to s.46(1) of the Marriage Act. He says there:

“However, while marriage as a consortium omnis vitae is often an

unrealized ideal, “the law” ought to make it clear that the parties

to a marriage ceremony are required to intend, hope and expect that

their relationship will endure for life. That, surely, is the point

of the Family Law Act s43(a) and the Marriage Act s46(1)”.

Section 46(1) of the Marriage Act, instructs marriage celebrants to impart to parties, inter alia, the seriousness of the commitment they are about to enter into and the nature of marriage. It prescribes a formula which is to be used to convey these ideas, or a celebrant may use “words to that effect”. Under s.46(2) religious marriage ceremonies must also contain similar statements and the Minister must be satisfied of that. In this way, it is clear that the point of s.46(1) is precisely what it purports to be and no more; it is not a legal definition of marriage nor does it have any substantive effect beyond imposing certain obligations upon marriage celebrants.

37. The decision in Deniz and Deniz (supra) was distinguished by the judge in that case himself in the later case of In the Marriage of Suria (1977) 29 FLR 308, 311-312. In that later decision, Frederico, J said that he granted the annulment in Deniz, “on the basis of a fraud going to the very concept of marriage itself, this is not such a case”. His Honour went on to say:

“A major factor motivating the respondent in entering into the

marriage may have been his desire to enter Australia, but it is

clear from the evidence including the evidence of his subsequent

attempts at consummation and cohabitation that he intended it to

be a marriage in fact as well as in form” (at 312).

However, as I have indicated, the primary decision was, in my respectful opinion, not correctly decided to begin with.

38. Before me the husband also relied on United States v Rubenstein 151 F.2d 915 (1945), in the Second Circuit of the United States Court of Appeals, and in particular the judgment of Learned Hand, J. Basically, this was an appeal from a criminal conviction of a lawyer for conspiracy to bring into the United States an alien by, amongst other things, false representations. Mr Rubenstein, the defendant, had arranged a marriage between a Czechoslovakian woman, Ms Spitz, and an American man, a Mr Sandler, solely for immigration purposes. They separated immediately upon their marriage and shortly thereafter obtained a divorce.

39. The comments in that case to which Mr Whiteford drew my attention at the hearing, were in the context of Learned Hand, J’s discussion of one of the defendant’s grounds of appeal, namely, that evidence that was admitted as to the other parties’ intent to divorce was irrelevant. The passage relied upon by the applicant’s counsel in the case before me may be extracted in full (at 918-919):

“… Spitz and Sandler were never married at all. Mutual consent is

necessary to every contract; and no matter what forms or ceremonies

the parties may go through indicating the contrary, they do not

contact if they do not in fact assent, which may always be proved”.

His Honour then cites the applicable American authorities and continues:

“Marriage is no exception to this rule: a marriage in jest is not a

marriage at all. This is the law of New Jersey as well as elsewhere.

McClurg v Terry 21 NJ Eq. 225; Girvan v Griffin 91 NJ Eq. 141,

108 A. 182 (semble). It is quite true that a marriage without

subsequent consummation will be valid; but if the spouses agree

to a marriage only for the sake of representing it as such to the

outside world and with the understanding that they will put an end

to it as soon as it has served its purpose to deceive, they have

never really agreed to be married at all. They must assent to enter

into the relation as it is ordinarily understood, and it is not

ordinarily understood as merely a pretence, or cover to deceive”.

However, immediately before the first of the above passages begins, and tellingly, his Honour said:

“The statute is not concerned with marriage, merely as marriage;

one, perhaps the chief, reason why it allows the wife of a citizen

to enter is because the husband will be responsible for her support.

If the spouses at the time of the wife’s entry intend that that

responsibility shall end as soon as possible, they have evaded the

statute by suppressing a material fact; and the suppression is a

fraud, even though the marriage is valid”.

In the first set of remarks I have cited his Honour makes some general comments about validity of marriage at that time in America; and those principles would seem to be the same there today. These clearly concern the American position which has been expressly rejected in this Court (see In the Marriage of Otway (supra), 102) and as early as 1897 by the Courts in England (see Moss v Moss (supra), 274-278; and also, more recently, H. (orse D.) v H. (1953) 2 All ER 1229 and Silver (orse. Kraft) v Silver (1955) 2 All ER 614, 616).

40. Yet, this American decision raises an important issue. In that case the majority said, in the last passage extracted above, “The statute is not concerned with marriage, merely as marriage”. The statute was an immigration law. The Court was primarily concerned with evidence that could be relied upon by the prosecutor to show a conspiracy in relation to it.

41. A slightly different scenario arose in this country in R v Cahill (1978) 2 NSWLR 453, a decision of the New South Wales Court of Appeal. The charge against defendants was of conspiracy to prevent the enforcement of the Migration Act 1958, in circumstances where being married to Australians would have increased their chances of remaining in this country. The six defendants were arrested at a marriage ceremony at which the three who were foreign citizens were all about to be married to three Australian women (who were the other defendants). Only one marriage was actually performed. The matter came before the Court as an appeal by way of a case stated by the trial judge. In the course of holding that the agreement to marry for immigration purposes was not so offensive to public morality as to be unlawful, Sir Lawrence Street, CJ said:

“I fail to see what justification there is for the criminal law thus

seeking to lift what might be described, borrowing from another

field, as the bridal veil. The law prescribes in considerable detail

the formal requirements which must be met in order to achieve the

change of status consequent on two persons marrying. The law

regulates the marriage relationship in well recognized aspects,

both during its currency as well as in making provision for its

termination. Active misrepresentations regarding a marriage or, for

that matter, active misrepresentations regarding anything else, are

capable of giving rise, in appropriate circumstances, to criminal

as well as civil liability. But, there were present here no active

misrepresentations. The Crown’s case involved an assertion that,

over and above the relevant statutory provisions, the criminal law

has a legitimate concern with what was described as the purpose for

which the institution of marriage was designed” (at 457).

Later, his Honour said:

“The purposes and motives, equally as the hopes and anticipations,

affecting two people when they enter into a marriage, are

susceptible of too wide a variation to render it possible for the

criminal law to classify some as offending, and the others as

according with what is meaninglessly described as “community

expectation”, in so far as this may travel beyond the specifically

prescribed concomitants of marriage” (at 458).

It is also significant that in that case, the validity of the one marriage performed was common ground.

42. Therefore, what the learned Chief Justice emphasised in R v Cahill (supra) was that the law should be reluctant to delve into the reasons behind a decision to marry. He clearly saw a difference between the actual legal status of marriage and the substratum of motives, inducements and considerations – innocent or otherwise – that invariably lies beneath such a decision.

43. In this case the applicant seeks to rely upon what he alleges to be the ulterior purpose of the wife in marrying him, namely, to obtain extended residency in this country. This is plain from his affidavit and from his application, particularly in paragraphs (5) and (6) thereof which I have set out above. Yet, if what the husband says is correct, it is a matter for the Commonwealth and a remedy does not lie in this court. Indeed, recently, in Lal and Watkin (supra), Warnick, J opined, in dismissing a nullity application where both parties had knowingly entered the marriage for immigration purposes alone, that (at 2), “Though there may well have been a fraud on the Commonwealth, constituted by attempted avoidance of the immigration laws”, there was no fraud as between the parties (both parties having been involved). Later, his Honour stated that (at 2):

“They wished to enter into a marriage and to assert its validity

to the Commonwealth. Now the applicant wishes to assert the

marriage’s invalidity to the court. She cannot do so”.

44. The remedy of a decree of nullity is concerned with the marriage itself, that is, the act of becoming married. This occurs when the ceremony of marriage is performed. If there has been fraud as to the other party or as to the nature of that ceremony, or there has been a mistake about it, the consent given by the party so affected is not a real consent and the marriage is void ab initio.

45. In this way, a distinction must be drawn, in cases where a party alleges a “marriage of convenience”, between how such a marriage is viewed by different areas of the law. This Court, in hearing nullity applications, is not concerned with how that newly acquired status may be used later. There may be, in appropriate circumstances, numerous consequential advantages that a party may obtain by being married. These could be in the arena of taxation, social security, immigration and so on. Likewise, there could be, motivating one or other of the parties, expectations of such consequential advantages, financial or social to be gained by entering into the marriage.

46. Should a court ever be entitled to say that a party’s reasons for marriage are so improper that it will declare their marriage void? The answer, in my view, must be a resounding “no”. Yet, in the context of immigration law, for instance, a party may be deprived of an advantage which that party might otherwise have gained from the marital status. For example, the Migration Act 1958, s.83G provides, in part, that:

“83G (1) A person must not apply for a stay permit on the basis of

satisfying a criterion for the permit because of being married to,

or being, for the purposes of the regulations, the de facto spouse

of, another person if, at the time of the application, the

applicant does not intend to live permanently with the other

person in a genuine and continuing marital relationship.

(2) A non-citizen in Australia convicted of an offence under

subsection (1) becomes an illegal entrant.

…” (the emphasis is mine)

This phrase, “genuine and continuing” appears elsewhere in the Migration Act and in the immigration context. A marriage which is found not to have these qualities will not confer upon the parties the advantage which they may have anticipated would flow from their new found status, although, it would appear, such a marriage for immigration purposes is not, without more, illegal: R v Cahill (supra), 457-458; Kunakool v Boys(1987) 14 FCR 489, 503.

47. Another illustration here is the recent unreported decision of Gummow J in the Federal Court in Shameem v Immigration Review Panel and the Minister for Immigration and Ethnic Affairs (unreported, 8 April, 1993). The applicant in that case, Mr Shameem, a citizen of Fiji, had married an Australian, so a Ministerial delegate found, simply to obtain advantage under a part of the Migration Act. He sought a review under the Administrative Decisions (Judicial Review) Act 1977, as it then stood, of the decision of the delegate to refuse a grant of resident status to him. That decision was upheld by the Federal Court.

48. These, then, are some ways in which a “sham” marriage might be dealt with. Even so, they deal with the use of marital status in the light of the purpose of its acquisition. In this case we are concerned with the acquisition of that status itself; was the consent of the husband real at that point? In my view, on the clear proponderance of authority, it was.

49. A final issue raised by the series of articles to which I was referred, and an issue on which Mr Whiteford addressed me, is the point raised by Davis in both his contributions about the distinction, in relation to “marriages of convenience”, between those in which the parties are in collusion and those in which one party is “innocent”. The learned author’s position is that only an innocent party should be entitled to the nullity decree and not the defrauding party, or parties, where both were in pari delicto. Jessup, in his reply to Davis says, amongst other things, that as a decree of nullity is a declaration that the marriage is void ab initio, one cannot have a marriage void for some purposes and not for others. On the grounds of logic and principle, I prefer this view.

50. In summary, then, I conclude that the term “fraud”, as it appears in s.23B(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.

6. CONCLUSIONS

51. The husband’s Application, which I have set out above, is based upon expectations and beliefs he says he held about the marriage which, he says, were fraudulently induced by the wife. Neither his Application, nor any of the material in his affidavit, however, is directed at the question of whether there was fraud as to the identity of the other party or the ceremony itself. Indeed, the husband’s material says very little about the actual marriage ceremony, or the circumstances of it. Accordingly, his application must fail.

52. I would also observe, at this point, that a copy of the husband’s principal affidavit, filed 14 June, 1994, was not served on the wife pursuant to O.15, r.18 of the Family Law Rules. The wife therefore had no opportunity to properly respond to it. However, in the light of my findings, this is now of little consequence.

53. Finally, I would also observe that, although there has been no Full Court decision in this area, the recent first instance decisions by other judges of this Court, in several states, have been very consistent in rejecting the availability of a nullity decree in circumstances such as those which exist in this case. It is perplexing that what should be regarded as settled law, is sought to be re-litigated so frequently.

54. I make the following 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 if the husband is unable to effect personal service of the

documents in order “2.” above within twenty-eight (28) days of the

date of this judgment, that order shall be deemed to have been

complied with if the husband posts, within a further fourteen (14)

days, a copy of the said documents to the last known address of the

wife;

4. That there be no order as to costs.