In the recent case of Anouihl & Temke  FamCA 325 (18 May 2017), Foster J heard an application by a married couple in a case where the parties were married in 2008 in a civil ceremony held at the Registry of Births, Deaths and Marriages in “Suburb D” NSW. In the following year, a religious ceremony was held which was celebrated with friends and family. After separation, the husband filed an application for divorce but discovered that the second marriage had inadvertently been registered under the Births, Deaths and Marriages Registration Act 1995 (NSW). The husband applied for a declaration that the second marriage was invalid, the wife agreeing with that application.
Foster J stated that section 113 of the Marriage Act 1961 (Cth) makes statutory provisions as to second marriage ceremonies. Section 113(5) relevantly provides that nothing in the Act shall be taken to prevent two persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia where those persons have:
- produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and
- furnished to that person a statement in writing, signed by them and witnessed by that person, that:
- they have previously gone through a form or ceremony of marriage with each other;
- they are the parties mentioned in the certificate of marriage produced with the statement; and
- they have no reason to believe that they are not legally married to each other or, if their marriage took place outside Australia, they have no reason to believe that it would not be recognised as valid in Australia.
Regrettably at the time of the later marriage ceremony the then already husband and wife failed to comply with the formal provisions as to notification provided in the section. The wife asserted that she and her husband had informed the celebrant that there was an earlier registered marriage in 2008. When they completed documentation to facilitate the religious ceremony that she and the husband were not aware that the celebrant would forward documentation for registration.
In the event that the celebrant had been properly notified in accordance with the provisions of section 113(5) then that celebrant was not to:
- Prepare or issue in respect of it any certificate of marriage under or referring to this Act; or
- Issue any other document to the parties in respect of the ceremony unless the parties are described in the document as being already legally married to each other.
In circumstances where the parties were already married the subsequent ceremony had no legal effect on their status as a married couple and that the subsequent registration of the ceremony as a registrable marriage was in error and in breach of the provisions of the Marriage Act 1961.
Proceedings for Declarations
In proceedings of the kind referred to in paragraph b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
The terms of section 113 permit the Court to provide such declaration in circumstances when it is justified in the matter. According to the Court, it is well settled that provided there is a satisfactory reason for making a declaration and it is warranted a court may proceed to do so.
In this matter the applicant and respondent demonstrated that there was a satisfactory reason for making the requested declaration. Also, that the declaration was warranted so as to appropriately resolve the validity or otherwise of the religious ‘renewal of the vows’ that unexpectedly resulted in the formal registration of a second marriage.
The Court granted the declaration.